dissenting in part.
I disagree with the court’s conclusion that Alaska’s game-ratio provision violates the Alaska Constitution’s equal protection and uniform application clauses.1 As the court correctly recognizes, the constitutional test we must apply is the one described in Justice Moore’s McDowell concurrence.2 But the court misapplies that test here. In my view, because the challenged regulation uses individualized criteria that are facially neutral and reasonably respond to an actual resource allocation need, the regulation would fail to pass constitutional muster only if Manning proved that the game ratio resulted in an actual injustice as applied to his ease. He has not made this showing.
McDowell considered a subsistence law that expressly discriminated on the basis of residency, categorically denying subsistence hunting rights to all urban residents. Moreover, the law at issue in McDowell applied at the Tier I level; it restricted subsistence rights in the absence of a determination that the restriction was necessary to protect subsistence resources.3 Faced with these circumstances, the McDowell plurality’s demanding scrutiny test articulated a constitutional- standard to be used when a law not specifically driven by resource needs favors one group of subsistence users over another on the sole basis of residency.
The justices who joined in Part A of McDowell took pains to emphasize that they did “not imply that the constitution bars all methods of exclusion where exclusion is required for species protection reasons.”4 Rather, they held “only that the residency criterion used in the 1986 act which conclusively excludes all urban residents from subsistence hunting and fishing regardless of their individual characteristics is unconstitutional.”5 McDowell thus specifically recognized that more latitude to regulate access would be allowed under a Tier II determination, when restrictions served actual resource-protection needs.
In his concurring opinion, even though acknowledging that the case presented an overtly discriminatory “geographical classification scheme,”6 Justice Moore articulated a more moderate understanding of Alaska’s constitutional standard. Because he believed that subsistence rights were similar to the “important right to engage in economic endeavor” addressed in State v. Enserch Alaska Construction, Inc.,7 Justice Moore used the same mid-level scrutiny test we adopted in Enserch.8 This test asks whether the challenged law is “closely related to an important state interest.”9 In light of the challenged law’s overt and exclusive reliance on the distinction between urban and rural residency, Justice Moore found that its means were not closely related to its goals. *1227Yet at the same time, Justice Moore stressed that “[a] law providing for individual determinations of eligibility would in my view be sufficiently tailored to the state’s interest to withstand a constitutional challenge.”10 As already noted, Justice Moore’s view on this point governs here.11
Unlike the law disputed in McDowell, the subsistence regulation now at issue, 5 AAC 92.070, was adopted in response to a Tier II determination and thus serves a specific resource-protection need. Furthermore, the regulation uses an individualized, facially neutral point system in determining eligibility — not an overtly discriminatory “geographical classification scheme.”12 Nothing in Justice Moore’s McDowell concurrence suggests that a rational, individualized, Tier II regulation of this kind could be deemed too loosely tailored to pass facial constitutional muster merely because, in theory, one of its measurements might not always perfectly fit its goal.
Nor does any post-AfcDoweM ease suggest the need for such a demanding means-to-end fit. In fact, our post -McDowell ease law suggests the opposite. In Gilbert v. State,13 which the opinion cites as re-articulating the McDowell plurality’s “least possible infringement” test,14 this court actually refused to apply any form of the McDowell test, even Justice Moore’s moderate “close relationship” requirement.
Like McDowell, Gilbert involved a constitutional challenge to a regulation that, on its face, adopted an overtly discriminatory classification — a commercial fishing regulation that favored the salmon fishery in Chignik over a competing, mixed-stock interceptor fishery in Stepovak in which most salmon were headed for their natal streams around Chignik.15
While McDowell had described this sort of facially disparate treatment as a “geographical classification scheme,”16 Gilbert referred to it as a “non-uniform classification!] ].”17 Citing McDowell and other Alaska cases, Gilbert acknowledged that “an analysis under [the Uniform Application Clause of article VIII] may invoke ‘more stringent review.’ ”18 Gilbert went on to observe that the more stringent test applies when the court reviews “fish and game regulations creating non-uniform classifications.”19 But the court in Gilbert nonetheless declined to apply this stringent test to the non-uniform classification before it because the competing fisheries were not similarly situated. The court instead emphasized that “[t]he regulation in question reflects an allocation decision authorized under article VIII, section 4 of the state constitution which the Board must necessarily make between users involved in different fisheries.”20 On this basis, Gilbert held that the regulation’s provisions were therefore subject to conventional rational-basis review: “Such decisions are within the power of the Board, so long as they are not arbitrary and unreasonable and are ‘consistent with and reasonably necessary to the conservation and development of Alaska fishery resources.’ ”21
In effect, then, Gilbert recognized that, even when a fish and game regulation cre*1228ates an openly non-uniform classification, the conventional rational-basis standard applies if the regulation deals with an issue of resource allocation that article VIII, section 4 allows the board to address and if the board finds that existing circumstances make it necessary to decide the issue. The situation here is functionally identical to the one in Gilbert: because this case involves a Tier II determination, the disputed regulation addresses an allocation decision that article VIII authorizes and that “the Board must necessarily make”22 in order to preserve scarce game resources. Under Gilbert, it follows that the classifications at issue here identify competing resource users who are not similarly situated and that the regulation must accordingly be reviewed under the conventional rational basis test.
But even if Gilbert did not dictate this conclusion, Justice Moore’s concurring opinion in McDowell would require no more than the moderately heightened equal protection review we applied in Enserch, which demands a close but not perfect means-to-end fit. Under either approach — Gilbert’s or Justice Moore’s — there would be no reason to declare the game ratio invalid.
Today’s opinion implicitly acknowledges that the challenged regulation is a facially neutral provision and seems to agree that the game ratio serves an important purpose: to assess the availability of alternative game resources in a given community.23 The opinion identifies no reason to suspect that the game ratio’s neutral requirements might conceal an invidious discriminatory intent. And it points to no record evidence showing that it generally produces arbitrary results or actually resulted in unfairness here. Instead, based solely on the theoretical possibility that the ratio’s formula “may be ... problematic in smaller communities” or that its ratcheting effect might reflect “questionable assumptions,” the court broadly declares the game ratio “structurally infirm and ultimately inaccurate,”24 and categorically invalidates it as unconstitutional in all applications.
This proclamation turns the usual presumption of constitutionality on its head by requiring the state to demonstrate that a seemingly reasonable (though perhaps not invariably perfect) regulation actually works in practice.25 More fundamentally, it misapplies the McDowell concurrence’s moderately heightened equal protection standard: instead of inquiring whether the game ratio is reasonably suited to achieving its goal, and thereby results in a reasonably close means-to-end fit, the court’s approach leaves no room for slippage or error. By proclaiming the ratio to be “structurally infirm” and “ultimately inaccurate” as a matter of law merely because it theoretically might produce an anomalous result in a marginal ease, today’s opinion effectively applies a test even more demanding than the leasUrestrictive-alterna-tive test discussed by the McDowell plurality-
In addition to straying from the settled analysis under McDowell’s concurrence, moreover, the opinion breaks sharply from the established standard for declaring a law to be facially unconstitutional — that is, invalid in all applications rather than just in the way it applies to the particular case at hand. As this court has recently recognized, “even under a relaxed standard of facial review it would be improper to declare [a law] invalid on its face if it has a ‘plainly legitimate sweep.’ ”26 Accordingly, there would be no basis for declaring the game ratio to be facially invalid unless Manning showed either that it arbitrarily discriminated on the basis of residency in many or most situations, and thus had no plainly legitimate sweep.
Here, Manning produced no evidence to support a finding of general invalidity, and today’s opinion makes no such finding. The *1229assumptions and structural defects that the opinion identifies as potentially flawed would at most create a risk of appreciable error only in exceptional situations.27 And even if exceptional circumstances suggested the presence of a significant risk of error with respect to a particular community or Tier II permit, these circumstances would not necessarily establish that the game ratio had inaccurately measured available alternative sources of game; instead, they would merely indicate a possible inaccuracy that would warrant further investigation before deciding whether to grant or deny the disputed permit.
Admittedly, Manning’s case presents some circumstances suggesting that the game ratio might have produced a statistical anomaly in his case. To this extent, today’s opinion correctly observes that the state’s decision to deny Manning’s application might reflect potentially “questionable assumptions.” But whether this potential for inaccuracy actually produced an inaccurate result is subject to reasonable dispute. The state, for instance, insists that in Manning’s situation, the game ratio actually did what it was supposed to do: it accurately determined that Manning had alternative sources of game within easy reach.
In my view, this factual dispute calls for a case-specific resolution. On the one hand, if Manning shows that the game ratio probably did produce an anomalous result as applied in his case, then the state should be barred from relying on subsection .070(b)(1) to deny permits to Manning and similarly situated Girdwood residents. On the other hand, absent proof that the game ratio inaccurately reflected Manning’s ready access to alternative sources of game, I see no basis for barring the state from applying the ratio to him — or anyone else. As today’s opinion recognizes, Manning is similarly situated to applicants who were granted a Nelehina permit only if “he is correct” in asserting “that the regulations in question are unconstitutional because they are an inaccurate means of determining which applicants have access to alternative food sources.”28 Absent proof that the game ratio lacks a plainly legitimate sweep, then, it follows that Manning should at a minimum have been required to show a likelihood that the regulation actually produced inaccuracy as applied to his situation.
Yet the superior court did not decide, or even consider, whether applying subsection .070(b)(1) to Manning’s case would actually cause injustice in his situation. Instead, the court summarily struck the regulation as unconstitutional in all applications based on a speculative risk of inaccuracy in seemingly marginal applications. Because this ruling converted the ratio’s potential but unproved inaccuracy in exceptional situations into an unwarranted facial disqualification in all applications, I would reverse and remand for an evidentiary hearing to determine whether the regulation actually did unfairly deny Manning his Tier II permit.
I therefore dissent from today’s opinion upholding the superior court’s judgment.
. Alaska Const, art. I, § 1; art. VIII, § 17.
. At 1221 (discussing Justice Moore’s concurrence in McDowell v. State, 785 P.2d 1, 12-14 (Alaska 1989)).
. See McDowell, 785 P.2d at 1-2 (describing challenged subsistence fishing and hunting provisions).
. Id. at 9.
. Id.
. Id. at 12 (Moore, J., concurring).
. State v. Enserch Alaska Constr., Inc., 787 P.2d 624 (Alaska 1989).
. McDowell, 785 P.2d at 13 (Moore, J., concurring).
. Id.
. Id.
. See In re Adoption of Erin G., 140 P.3d 886, 890 (Alaska 2006) (“ ‘[W]hen a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.’ ”) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)).
. Cf. McDowell, 785 P.2d at 12 (Moore, J., concurring).
. Gilbert v. State, 803 P.2d 391 (Alaska 1990).
. At 1221-22 n. 36.
. Gilbert, 803 P.2d at 393, 398-99.
. McDowell, 785 P.2d at 12 (Moore, J., concurring).
. Gilbert, 803 P.2d at 399.
. Id. at 398 (citing McDowell, 785 P.2d at 10).
. Id. at 399.
. Id. (footnote and citations omitted).
. Id. (quoting Meier v. State, Bd. of Fisheries, 739 P.2d 172, 174 (Alaska 1987) (applying rational-basis standard of review)).
. cf. id.
. At 1222-23.
. At 1223-24.
. Cf. Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004) ("A duly enacted law or rule ... is presumed to be constitutional.”) (citing Kodiak Island Borough v. Mahoney, 71 P.3d 896, 899-900 (Alaska 2003)).
.Id. at 260 n. 14 (quoting Troxel v. Granville, 530 U.S. 57, 85, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (Stevens, J., dissenting)).
. As the opinion notes, the ratio "may be particularly problematic in smaller communities" where hunting patterns and the ratio's "ratcheting effect” combine to exclude all members of the community from a Tier II hunt in perpetuity. See At 1223-24.
. At 1221-22 n. 36.