concurring.
I concur in the result the court reaches. I would decide the case on statutory, rather than constitutional grounds, however.
The United States Supreme Court recently reaffirmed its adherence to the doctrine of abstaining from answering constitutional questions when other dispositive grounds exist. In Escambia County v. McMillan, — U.S. —, —, 104 S.Ct. 1577, 1579, 80 L.Ed.2d 36, 39 (1984), the Court observed:
It is a well established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case. See Ashwander v. Tennessee Valley Authority, 297 US 288, 347, 80 L Ed 688, 56 S Ct 466 [483] (1936) (Justice Brandéis, concurring).
I see no reason why this court should not exercise similar restraint, and no reason *492why this case presents any exception. This court simply declines to exercise any restraint, without apparent reason. See 689 P.2d at 489, n. 5.
Alaska Statute 16.43.010(a) states:
It is the purpose of this chapter to promote the conservation and the sustained yield management of Alaska’s fishery resource and the economic health and stability of commercial fishing in Alaska by regulating and controlling entry into the commercial fisheries in the public interest and without unjust discrimination.
We have interpreted regulations enacted by the CFEC in such a fashion as to bring them into conformity with the statutory purpose to allocate permits without “unjust discrimination.” See State, Commercial Fisheries Entry Commission v. Temple-ton, 598 P.2d 77, 81 (Alaska 1979). See also, Jones v. Commercial Fisheries Entry Commission, 649 P.2d 247, 251 (Alaska 1982).
Clearly, 20 AAC 05.630(b)(4) must be found to be compatible with AS 16.43.010(a) if it is to be approved. It is equally clear that the test for compatibility with AS 16.-43.010(a) is at least as strict as the Alaska equal protection test, since a statute which required no more of a regulation than that it avoid violating the constitutional right to equal protection would be superfluous. It is also apparent that the essence of Deubel-beiss’ objection to the regulation is that it does in fact “unjustly discriminate” within the meaning of AS 16.43.010(a). Since the equal protection test is, at the most, no stronger than the statutory test, there is no need to discuss the question raised in constitutional terms.
I. STANDARD OF REVIEW
Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971), presents a comprehensive Alaska discussion of the review in administrative cases. Kelly stresses as a preliminary matter the identification of the nature of the administrative action under investigation as either legislative, executive or judicial. Id. at 916-917. As to legislative actions taken under a specific delegation of legislative authority, such as the adoption of a regulation, the appropriate standard of review is set forth in Kelly:1
Thus, where an administrative regulation has been adopted in accordance with the procedures set forth in the Administrative Procedure Act, and it appears that the legislature has intended to commit to the agency discretion as to the particular matter that forms the subject of the regulation, we will review the regulation in the following manner: First, we will ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency. This aspect of review insures that the agency has not exceeded the power delegated by the legislature. Second, we will determine whether the regulation is reasonable and not arbitrary. This latter inquiry is proper in the review of any legislative enactment.
486 P.2d at 911. In the case before us no question is presented as to the interpretation of 20 AAC 05.630(b)(4). The question is whether a concededly “correct” interpretation of the regulation is in conflict with a statutory provision governing the agency’s “legislative” enactments. Such a question is subject to review under the Kelly test. See e.g., Union Oil Co. v. State, 574 P.2d 1266, 1271 (Alaska 1978).
The first prong of the Kelly test is critical in a case, such as this one, where a regulation duly promulgated under a delegation of legislative authority as to one statute (AS 16.43.250(a)(1); AS 16.43.-110(a)) allegedly conflicts with another statute (AS 16.43.010(a)) which restricts the scope of the delegation. In such a case, the key question for the reviewing court is whether the regulation, insofar as it con*493flicts with the restrictive statute, is outside the scope of the agency’s authority. The court must “ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency.” Kelly, 486 P.2d at 911 (emphasis added). If the regulation does not satisfy this test, it is invalid as being outside the powers delegated to the agency. Whether a regulation is outside the scope of delegated authority for this reason is a question as to the interpretation and elucidation of the statutes governing the scope of the agency’s operations. It is the task of the judiciary to determine, in light of the legislature’s statutory enactments, whether an agency has exceeded the bounds of its authority. Such a question is one in which an agency’s expertise is of little or no assistance. The substitution of judgment standard is the appropriate standard of review under the first prong of the Kelly test.
As further support for applying the substitution of judgment standard, we consider the nature of the question before us. In this case, since there is no question as to the interpretation of 20 AAC 05.630(b)(4), the question of whether it is harmonious with AS 16.43.010(a) is, in effect, a question which calls for interpretation of the statute, not of the regulation. The interpretative question is whether it is “unjust discrimination” within the meaning of AS 16.-43.010(a) to award points for alternative occupations based on domicile in a census district. This determination is peculiarly within the judiciary’s sphere. It is not a question whose resolution depends on administrative expertise.
II. UNJUST DISCRIMINATION
Deubelbeiss asserts that 20 AAC 05.-630(b)(4) “does not realistically quantify availability of alternative occupations.” While he agrees that, in general, it was appropriate for the CFEC to distinguish between urban and rural residents for the purpose of determining availability of alternative occupations, it is not adequate as a sole criterion. “[T]he particular adaptability, capacity, age and prior skills of an individual applicant is an essential measure [sic] of his ability to participate in an alternative occupation,” he says. The use of census districts is simply too broad and rough a criterion to adequately quantify a particular fisherman’s dependence on a fishery.
The CFEC responds that “any criterion will necessarily be somewhat arbitrary,” and the census district criterion is “reasonable.” In the particular case of Ninilchik, which is approximately forty road miles from Kenai, it is not unreasonable to say that the job market in Kenai is “available” for a Ninilchik resident. The CFEC rejected individual aptitudes and training as criteria because it felt that income dependence would reflect these attributes, and it also saw “no fair and ready way to determine the availability of alternative occupations in terms of each individual’s abilities.” Limited Entry, Report to the Fisherman of Alaska, at 20 (CFEC, July 15, 1974). The CFEC did include a provision accommodating bush residents who have no road access to other areas of employment in 20 AAC 05.630(b)(4)(D), and it claims that this provision sufficiently individualizes the “census district” criterion to justify the regulation.
Although the CFEC ameliorated the effects of the “census district” criterion by providing that additional points could be obtained by individuals residing in places which lack road access to “other potential areas of employment in his census district,” 20 AAC 05.630(b)(4)(D), it made no differentiation as to the distance from other possible areas of employment for those persons who did have road access. Thus, a resident of Ninilchik, forty road miles from Kenai, or of Homer, 80 road miles from Kenai, was awarded two points, while residents of Palmer and Wasilla, which are approximately forty road miles from downtown Anchorage, were awarded four points, and residents in the Fairbanks area living more than forty miles from downtown Fairbanks received zero points. *494There is simply no justification for these anomalies, in my opinion.2 While it is of course true that inequities will always result from any arbitrary criteria, and that deciding where to draw the lines is difficult, these truisms do not excuse the CFEC’s failure to prevent the most obvious inequities from occurring.
Substituting my judgment for the CFEC’s on the question of whether 20 AAC 05.630(b)(4) results in “unjust discrimination” within the meaning of AS 16.43.-010(a), I conclude that it does.
My resolution of the question does not purport to direct the CFEC to consider aptitudes, educational levels or other individual characteristics of applicants in determining the availability of alternative occupations. It is the task of the CFEC to ascertain the criteria appropriate for ranking applicants. However, having selected criteria, it is also the CFEC’s task to ensure sufficient refinement in the ranking process to avoid unjust discrimination. The urban/rural criterion, even as ameliorated by the “road access” provision, does not provide the requisite degree of exactitude to satisfy the mandate of AS 16.43.-010(a) to avoid “unjust discrimination.”
Whether the CFEC chooses to further refine 20 AAC 05.630(b)(4) through the promulgation of further specific criteria, (e,g., distance from an urban community or other substantial center of population; unemployment statistics within a given census district; individual abilities and/or aptitudes), or through a nonspecific “special circumstances” provision is for the CFEC to decide, in the exercise of its quasilegisla-tive authority. All that I would require is that the methods chosen have a reasonable basis, and that they have an effect which avoids unjust discrimination in the final result. I recognize that some discrimination is inevitable any time lines are drawn. Regulations are entitled to a presumption of validity, and it is the applicant’s burden to establish, through facts and argument, that a particular regulation results in unjust discrimination. I would not lightly conclude that one does, and I recognize the administrative and practical limitations which justify a degree of imprecision. I would not, however, accept rough-hewn guidelines which result in substantial discrimination where more precise differentiations may readily be made. Accordingly, I would reverse the judgment of the superior court and remand this case to the CFEC for further proceedings.3
. See also Kenai Peninsula Fisherman’s Cooperative Ass'n v. State, 628 P.2d 897, 906 (Alaska 1981).
. These anomalies are not restricted to Alaska. A person who lived within thirty miles of downtown Spokane, Washington, could receive zero, two or four points depending on which direction from the city he or she lived. Similarly, zero, two or four points could be awarded to persons within a thirty mile radius of downtown Portland, Oregon.
. I express no opinion as to whether rectification of the unfairly discriminatory aspects of 20 AAC 05.630(b)(4) would, or should, result in the issuance of additional points to this applicant.