Charles v. State

MANNHEIMER, Judge,

concurring.

I write separately to emphasize a key aspect of our analysis of this case: our interpretation of the Alaska Supreme Court’s decision in Totemoff v. State, 905 P.2d 954 (Alaska 1995).

In the final portion of its opinion in Totemoff, 905 P.2d at 969-973, the supreme court addressed the question of whether a defendant who is charged with violating a hunting regulation can defend against the charge by attacking the validity of the regulation. The supreme court concluded that a defendant can properly assert that the regulation is procedurally invalid — i.e., that the proceedings leading up to the enactment of the regulation were irregular in one or more respects. 905 P.2d at 969, 972-73. But at the same time, the supreme court reaffirmed its earlier decision in State v. Eluska, 724 P.2d 514, 516 (Alaska 1986), that a defendant is not entitled to defend against a charge of illegal hunting by asserting that the unlawful act of hunting was done for subsistence purposes. 905 P.2d at 969-971.

See also AS 16.05.259, which states: “In a prosecution for the taking of fish or game in violation of a statute or regulation, it is not a defense that the taking was done for subsistence uses.” In Totemoff, the supreme court interpreted this statute as codifying the court’s decision in Eluska “that unauthorized hunting does not become lawful because it is subsistence hunting”. 905 P.2d at 970.

In Totemoff, the defendant argued that the regulation he was charged with violating (a *746regulation that prohibited the hunting of deer with the aid of a spotlight) was procedurally invalid because the Board of Game held no separate hearing to determine whether the prohibition on the use of spotlights should apply to subsistence hunting. 905 P.2d at 971-72. The supreme court rejected the contention that the Board was required to hold a separate hearing on subsistence issues, and the court then noted that Totemoff had offered no evidence that the Board of Game failed to consider subsistence uses during the administrative proceedings leading up to the adoption of the regulation. 905 P.2d at 972-73. Given the lack of evidence on this point, and given the presumption of regularity, the supreme court held that Totemoff had failed to establish even a prima facie ease that the regulation was procedurally invalid. Ibid.

Returning to the facts of Charles’s case, Charles offered no evidence that the Alaska Board of Game or the Federal Subsistence Board failed to consider subsistence uses when they set the limits on deer hunting on Prince of Wales Island. Rather, as Judge Bolger’s lead opinion points out, Charles apparently concedes the opposite. In his district court pleadings, Charles declared that “[even though] the pressure put on game by non-subsistence [hunters] has ... been recognized by the Federal Subsistence Board, [the Board] has not ... adequately ... preserve[d] Mr. Charles’ subsistence hunting needs”.

In other words, Charles did not assert that the. Board of Game’s adoption of the deer-hunting regulation was procedurally invalid, or that the regulation lacked any reasonable relation to the Board’s areas of regulatory authority defined in AS 16.05.255-270. Instead, Charles argued that the Board reached the wrong conclusion when it weighed the needs of subsistence hunters against the need to husband the deer population. Charles wanted the district court to hold a hearing, not for the purpose of showing that there was any legal irregularity in the Board’s enactment of the regulation, but rather for the purpose of second-guessing the Board’s decision on issues of game management. Totemoff and Eluska hold that this proposed “defense” is not allowed.