dissenting.
In Grunert I, the court majority struck down a Board of Fisheries regulation allowing a cooperative salmon fishery in Chignik designed to address an economic crisis. For the reasons set out in my dissenting opinion in that case1 — that this court misinterpreted the statute authorizing the regulation in question,2 looked to the wrong statute to assess the regulation’s consistency with its controlling statute,3 and ignored the deference our case law requires us to afford to an agency’s expertise4 — I believe that Grunert I was incorrectly decided by this court. For the reasons set out below, I believe that even Grunert I does not require today’s result. For both of these reasons, I respectfully dissent.
*1241In Grunert I the court focused almost exclusively on what it deemed the problem of a lack of active participation by co-op members:
• it pointed to features of the Limited Entry Act that it said “reflect an intention that permit holders be, at minimum, individuals who were actively fishing ”;5
• it looked to Limited Entry ranking factors and said they were designed to “protect those who actually take fish ”;6
• it said “[a]dual participation also matters when it comes to the issuance of subsequent ... permits”;7
• it pointed to other provisions in the Limited Entry Act that emphasize participation, concluding that “these provisions in the Act contemplate economically dependent individuals who invest time and money in actually fishing ”;8
• it found that “a central premise of the statutory scheme is that the permit holder is an individual who will fish.”9
With this backdrop, the court in Grunert I concluded that “[pjarticipation by the individual is inherent in the limited entry permit system. The Chignik cooperative fishery scheme is fundamentally at odds with this premise because it allows people who are not actually fishing to benefit from the fishery resource.”10
In response to this apparently clear set of signals, the Board of Fisheries took great pains to structure a program in which people must actually fish in order to participate. It required that each cooperative member must make at least ten landings of fish.11 Moreover, the regulation had the intended effect: The number of cooperative members actively participating in the fishery rose from an average of twenty-one for the previous three years to seventy-six last year. Fifty of those fishers had at least fifteen landings.
But now the court subtly but drastically changes the discussion. Now the essential flaw of the cooperative system is not that fishers may be members without doing any fishing at all. Now the flaw is- that the “regulation still allow[s] permit holders in the cooperative to benefit economically from the work of others.”12 Any board-authorized sharing of effort, pooling of resources, or cooperative venture is now deemed forbidden by the Limited Entry Act.
The court today justifies this change from Grunert I by the observation — true but irrelevant — that “nothing we said in Grunert I expressed a notion that cooperative participants could be active participants if they derived benefit from deliveries they did not make.”13 In Grunert I the court strongly implied that active participation — “actively fishing”; “actually take fish”; “actually fishing;” “an individual who will fish” — was the necessary but missing ingredient. Contrary to today’s bald assertion that “nothing in Grunert I implied as much,”14 each of the quotations set out above, and others, very strongly implied that the critical flaw in the earlier regulation was the lack of active participation. That flaw unquestionably having been remedied by the regulation under consideration in today’s opinion, the regulation should have been upheld.
For these reasons — that Grunert I was wrongly decided and that, even if Grunert I was correctly decided, it does not require today’s result — I respectfully dissent.
APPENDIX A
DECISION ON RECORD
BEFORE THE HONORABLE WILLIAM F. MORSE
Superior Court Judge
Anchorage, Alaska
*1242June 2, 2005
11:04 o’clock a.m.
APPEARANCES:
FOR THE PLAINTIFFS:
(Telephonically)
ARTHUR S. ROBINSON
Attorney at Law
35401 Kenai Spur Highway
Soldotna, Alaska
FOR THE DEFENDANTS:
LANCE B. NELSON
STEVEN A. DAUGHERTY
Assistant Attorney Generals
Natural Resources Section
1031 West 4th Avenue
Suite 200
Anchorage, Alaska
PROCEEDINGS
3AN6105-92
[11:04:59]
THE COURT: All right, we are on record in Grunert v. State, 3AN-05-07909 Civil. Mr. Nelson is present and with — I’m sorry, with his associate. I apologize I can’t remember your name.
MR. DAUGHERTY: Mr. Daugherty.
THE COURT: All right. And, Mr. Robinson, can you hear me?
MR. ROBINSON: Yes, I can, Your Hon- or.
THE COURT: And I know that there are a number of other people listening in tele-phonically. I know that there was a news reporter or media person from Dillingham. Is that person connected?
UNIDENTIFIED FEMALE SPEAKER: Yes, I am.
THE COURT: you — could you — I couldn’t hear you.
UNIDENTIFIED FEMALE SPEAKER: Yes, I am.
THE COURT: Okay.
UNIDENTIFIED FEMALE SPEAKER: My name is Jody (indiscernible).
THE COURT: All right. This is the time set for the announcement of the findings after yesterday’s oral argument. The first question is whether or not the regulation that the Board of Fisheries promulgated in response to the Supreme Court’s decision on March 17, 2005, was a valid emergency regulation. AS 44.62.250 requires that there be a written finding that includes a statement of facts describing the emergency and articulating why the particular regulation is needed and would support the public peace, health, safety, or general welfare. It’s clear that there was a written finding, there is clearly a statement of facts, and the only question is whether or not the articulation of those facts truly constituted an emergency. And we are also guided by another state statute — I think it’s .70 or .270 — that articulates a policy to limit the number of emergencies that should be found.
The emergency was created by the — or the purported emergency — was created by the timing of the Supreme Court’s decision in Grunert that had been in litigation for several years and in front of the Supreme Court for approximately a year, which would at least suggest that the opinion was coming down, and I would perhaps surmise that the Supreme Court probably thought that it ought to get its decision out before the 2005 season, but I don’t think anyone could reasonably rely on that, although that was a— would be a rational expectation that it was coming.
I think that the timing of the decision does constitute an emergency. I think that the general welfare standard is not restricted to the interests of the entire state but can be interest-can be the general welfare for a more narrow entity, in this instance the fishery which is the scope of the regulation at question, and it clearly affected everybody inside that fishery as well as the larger community that would be impacted by the regulation and that had an economic interest in the fishery itself. It’s clear that the fishers reasonably assumed that the cooperative regulation was — that was in place at the time of the decision would likely be in place at the *1243time of the fishery, given that it was opening in the first week of June or close to that time period. And it is clear that a variety of financial, logistical, personnel, personal, and equipment arrangements would have to made by anyone who wanted to participate in the fishery. The fact that the decision came down two days after the deadline for the election to participate or not in the cooperative — it’s not the fact that it came down two days after that, but the fact that that's — the deadline was March 15th suggests that the Board understood the amount of preparation that would reasonably be necessary for any participant in the fishery to plan, to get ready. I mean it takes time to make those arrangements. You can’t do things quickly.
No matter what happened — no matter how the Board acted, it had to act quickly after March 17th because it had to have something in place for the June opening, and whether that was the — you know, to tweak the co-op or to replace it entirely with some other regulation, it had to act quickly. And while it might have done various other things regarding legislation prior to the Supreme Court’s decision, or regulate or to attempt to get regulation during the brief period between March 17th and the expected end of the legislative session, it wasn’t reasonable— I mean it was a reasonable thing to decide that was unlikely to occur. And I think that anyone who’s familiar with the end of a typical legislative session knows that it is unlikely to get controversial new legislation passed so quickly, and this particular experience this session sort of proves out the general rule.
This is a contentious issue that applied'— legislation that would permit the co-op would be legislation that would impact potentially the entire — all fisheries across the state, and that would be extremely contentious. It would require a lot of thought, a lot of effort, a lot of political machinations, pushing and pulling before an end legislative product would come out and likely would have resulted in a less than nuanced one. So the regulation was limited to a particular fishery that had some experience with a co-op, and the Board had experienced with the co-op, so I think it was a wiser effort on the Board’s part to pass a focused regulation that would be in place for one season and one fishery rather than to seek legislative option at that late date.
Now, on the other hand, it could have had other non co-op regulations in hand in expectation of an adverse decision, it could have had a variety of different flavor co-op regulations in anticipation, but the Board, like any agency, has scarce resources, and those efforts would have been speculative and perhaps would have been prescient and accurate but more likely would have been a fair waste of time. And also given the fact that even if they had gone through the formal process, they could have gotten a regulation out only, you know, in June on time. I think the additional delay of the formalized process would have simply hurt both sides by increasing uncertainty.
So I think that there was a legitimate emergency, and I think that the procedural requirements of the regulatory process were met. As a consequence, I think the new regulation is presumed valid, and it is incumbent upon the challenger to overcome that presumption.
There are two portions of the new regulation that were — that need to be compared to the Grunert decision. The first is the sort of one- or two-fisheries issue that depends on the definition and nature of the gear. AS 16.43.994 defines fishery in terms of a single resource, a single area, and a single type gear. And, paraphrasing, essentially the regulatory and statutory scheme says that if the same gear is being used in that resource in that area, then there needs to be regulatory — uniform regulations for the use of that gear set. And the question here is whether or not the use of the leads by the co-op and not by the — the permitted use of leads by the co-op and not by the open fishers, whether that’s a sufficient change in gear to allow there to be disparate regulations applicable to the two groups. And I don’t think this is a statutory construction issue. I think this is a sophisticated fishing decision where the administrative agency’s expertise should be given deference by a court. It’s not merely a matter of defining the word gear. That’s not the issue. The real issue is the practical on-*1244water, you know, during the fishing experience difference between the types of equipment and the impact that equipment has.
Frankly, it seems to me that much of the equipment is identical. I mean, a purse seine is a purse seine, but that’s too superficial of an analysis. The real reality is with the use of the leads, various things change. There is a slower pace. The consequences of leads is that fish which are normally traveling from point A to point B and need to be located, tracked, followed, chased, and fished during movement instead are located, at least temporarily, in a relatively small, confined space where people can fish them using the same techniques but at a different pace altogether. You can fish more slowly, you can fish more carefully, both in terms of safety, and you can fish in a way that even if you are using a purse seine in both circumstances, you’re probably incurring or inflicting less damage on the product during the course of the fishing. It seems to me that the Board could rationally understand that fishing at a high pace with equipment, a purse seine, is a lot different than fishing at a more measured, leisurely pace in a restricted area. And more importantly, this gear change is not essential to, but certainly permits the cooperative fishing process that the regulations are intended to allow and encourage. It’s not necessary but it certainly does allow a more cooperative fishing style.
And I think that the — essentially this regulation passes muster. I don’t think that the Grunert décision itself forces a ruling — a contrary ruling. My read of the opinion is that the Supreme Court was uncertain as to the record before it — not uncertain, they knew what the record was, but the record itself was not particularly complete because there had been an amendment sort of mid-litigation, so I don’t think that the decision itself precludes me at this point from finding that the regulation is acceptable or at least passes muster on that particular grounds.
That leads us to the final and critical issue, which is whether or not the Board of Fisheries exceeded its statutory authority by enacting this modified cooperative fishing regulatory scheme. I’ve read Grunert several times since oral argument yesterday, and I think that the — and I’ll cut to the chase: I mean I think that the decision profoundly limits the ability of the Board to create a cooperative fishery. And I think that, ironically, all of the reasons that the Board opted for a cooperative fishery argues against the Board’s authority to do it. It is a profoundly different style of fishing, a different arrangement, a different economic arrangement, a different — it has different impacts on the community, both the local fishers — you know, the actual permit holders themselves and the fishing community itself. And that’s the exact reason why the Board thought it was necessary to enact it. The very need and success of the regulation proves that it is dramatically different than what the Act itself permits. And I will try and be more specific. There are several things.
Clearly in the old regulation, that regulatory scheme allowed a certain number of cooperative members to not fish at all, to simply stay at home and not fish. The new regulations require all the co-op members to fish a minimum of ten deliveries, and the relationship of that ten deliveries to the total number of deliveries remains to be seen. And it’s— can only be sort of predicted, but we — you know, until it actually happens, we don’t really know because we won’t know the size of specific deliveries, we won’t know the size of the run, we won’t know the size of the escapement needs until the fishery actually takes place. But nonetheless, to the extent that there is more than ten deliveries times the number of co-op members, the more deliveries that take place the more likely you are going to have some number of people not exceeding ten deliveries and be essentially passive and nonparticipatory for a greater and greater portion of the particular fishery — the particular opening.
The Supreme Court clearly read the Limited Entry Act to reflect two basic criteria. One is to restrict eligibility for permits to those who would be actually fishing, and they — that’s sort of the source of their description of what is active fishing and what is active participation. And also, those people who have a dependence on fishing, that’s a factor in the assignment originally and, you *1245know, sort of post-creation of the whole limited entry scheme. The point seems to be that the Act prefers to have people actively participate and be economically dependent, not necessarily exclusively, but be economically more dependent than less, and to require active participation. And I think it’s significant that the Act requires — defines permit holders in terms of persons and defines persons to be natural persons, not a variety of artificial and associational or cooperative groups.
AS 16.43.140(b) points out that — -just a moment here^ — -the number — the people who can’t participate would be corporations — who can’t be permit holders: corporations, companies, partnerships, firms, associations, organizations, joint ventures, trusts, societies, or any other legal entity other than an actual person. And the — another aspect that I think is significant is that it requires the holder to be the principal and to fish through his or her own efforts rather than through some sort of representational activity by another entity, with the exception of the crew, and that crew can only work when the permit holder is actually physically present on the boat and actively participating, doesn’t necessarily have to be operating the gear, but has to be actively participating. And the difference that is wrought by the cooperative scheme is that these to the — once you get beyond an average of ten deliveries per co-op holder or co-op member, once you get a certain number of people who are going to choose not to do more than ten deliveries— and even if they choose to do fifty — whenever they stop fishing, whenever that group stops fishing, then they’re not only absent from the boat, they are not actively participating, and they look like exactly the kind of thing that the act prohibits, which is a passive sort of financially-interested-only participant. And that’s — I think that’s not what the Act permits under the Grunert decision.
It does a number of things. The co-op system changes the distribution of profit and the mechanism of the sharing of profit. It constitutes a reduction of competition both within the co-op and with the non co-op members. It permits different timing of participation in the fishery by the co-op members versus the open fishers. And it permits — let me — timing is not quite the right word — a different style and pace of fishing from the limited entry model of frankly frenzied, nearly chaotic at times, competition for the fish, and whether that’s wise or not it’s not for me to say, but that’s clearly the model the limited entry system encourages if not requires; whereas the cooperative system, which is exactly why the Board and the co-op members like it, allows for a slower paced, a more careful, less frenzied, fishing style that has a variety of other impacts downstream which hopefully require — will permit a higher — -better product and a higher price. It may well be a saner system. And I mean by sane, I mean less insane system. But that’s a policy decision that I am not sure the Board gets to make given the constructs of this statutory scheme.
And it also permits different openings, not only permits, it requires different openings. Because of the allocation between the open fishers and the co-op fishers, the two groups go out at different times. That’s a dramatically different change than under the limited entry — any other limited entry system.
I think also the Act’s use of economic dependence or anticipation of economic dependence on a fishery means that while permit holders don’t have to do nothing but fish, they clearly can do things during the off-season, but during the fishing season, I think, the expectation is that will be their primary economic focus, not exclusive, but primary economic focus. The cooperative system allows some number of co-op members to essentially not fish during the season, and that’s exactly the point, allowing them to be teachers, be — you know, do anything else, whatever that might be. And that clearly distorts the allocation model under the limited entry system.
It also — this co-op system also changes the risk that a permit holder has when he or she goes out to fish. Just using some rough examples that coincidentally are fairly close to the actual situation in this particular fishery, assuming that there is 100 fishers in the fishery and 80 co-op members and 20 open fishers, and because of the skewed number— *1246the skewed allocation percentage, let’s say 75 percent of the fish are guaranteed to the coop members and 25 to the open members. No matter what the pace, no matter what their participation, assuming that they’ve delivered over 10, every co-op member is going to be, as I understand it guaranteed 75 over 80 because they’re going to be sharing that regardless of their actual participation in the fishery. Once they get over the minimum, they’re going to share the profits at that percentage, and everyone sort of knows that, and there is a real advantage to that. There’s a — I mean, that’s part of the goal of the co-op. On the other hand, the — and there is a guarantee that the 75 percent of the fish are delivered by the co-op. Within-— so there is an allocation both between co-op and the open folks.
Within the open group, none of those members has any guarantee whatsoever, yet they are limited to a smaller total catch, probably a fewer number of deliveries, and a smaller number of — lesser opportunity to average out the impact of any particular, you know, good days and bad days. In the open world if they had access to 100 percent of the catch, they could have couple of bad days and some good days, and it would average out, and they would get a varied percentage of the total catch. But now those 20 open fishei’s are going to be competing for a smaller total pot, there is a greater chance that they won’t move to an average, and there is an increased risk of great disparity within those 20. Somebody is going to hit a home run in that open group and catch a lot of fish on a couple of — you know, on one day or a couple of sets and is going to pull a large percentage of the open allocation to that one boat or the one holder and limit the opportunity of the remaining open people, thus restricting their ability to fish even more than the allocation between the co-op and the open fishers does already.
I think that it changes sort of the economic model in another sort of more fundamental way as well. Under the limited entry system, holders who don’t do well for whatever reason — bad luck, bad judgment, bad finances, bad equipment, who knows — are going to economically suffer, and ultimately their option is to — you know, their end game is to sell the permit, get out of the fishery, and some new entrant will arrive on the scene. Under the co-op system, those who for whatever set of reasons are less able to succeed economically will rationally opt to participate as minimally as possible. Ten deliveries only and then they stop. That permit remains in their hands and new people don’t come in, whether those are new people from the local community or from Anchorage or from Seattle, that doesn’t matter, but there is going to be less turnover. That may be a wiser system. I’m not making a judgment as to which is better, but they are clearly different, and the first is the one that is set up by the Act, and I think the second system is not permitted by the Act. Perhaps that should be changed, but that’s not my call.
The old system also encourages more boats, more equipment, a greater, more expanded support system of equipment providers, bankers, people who sell food, people who ship stuff to the Bush so that they can feed the crew members, probably a greater number of crew members as well. It is also true that that support system is probably more fragile and more prone to collapse because there’s a lot of credit out there, there is a lot of risk being taken, and somebody’s going to fail and the system will tumble, and that’s clearly why the co-op system is being sought as a response to the problems that have already been faced, not only by the permit holders who have opted for the co-op system, but also for the Chignik community in general.
And again, it may be a rational way to spread the economic risk, but given the Supreme Court’s decision in Grunert and its articulation of the requirements, policies, goals, participatory, and economic model of the limited entry system, I do not — I cannot find that the modifications to the co-op regulations — that this new reg to the co-op system that this new regulation has enacted satisfies the problems identified in Grunert. So I find that the new regulation exceeds the authority of the Board of Fisheries and is invalid.
*1247[[Image here]]
END OF REQUESTED PORTIONS
APPENDIX B
Order
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.*
The court, having considered the arguments on appeal and cross-appeal, and having heard oral arguments on February 3, 2006, and having previously ordered that the appeal and cross-appeal be expedited,
It Is Ordered:
1. We issue this order now so the parties can guide themselves accordingly prior to the 2006 Chignik commercial salmon season. An opinion will follow.
2. In Grunert v. State (Grunert I), we struck down former 5 Alaska Administrative Code (AAC) 15.359 (2002), a Board of Fisheries regulation that created a cooperative fishery within the Chignik salmon fishery.1 Following publication of Grunert I in March 2005, the board, invoking its authority under AS 44.62.250, found that the timing of the publication of our decision created an emergency because some of the cooperative fishery members did not have enough time to prepare for the 2005 fishing season. The board then promulgated an emergency regulation that maintained the cooperative fishery scheme but required each cooperative permit holder to “actively participate” in the fishery by making at least ten deliveries during the fishing season.2 The emergency regulation also permitted the cooperative fishers to use types and amounts of equipment different from those which open fishers could use in the Chignik salmon fishery.3 Grunert and other commercial fishers (collectively, Gru-nert) brought suit in the superior court against the State of Alaska, Alaska Board of Fisheries, and Alaska Department of Fish and Game (collectively, the board). In his oral decision, Superior Court Judge William F. Morse decided that (a) the timing of our decision in Grunert I created an emergency; (b) the board met the procedural requirements for promulgating a regulation in response to that emergency; (c) the cooperative and open Chignik salmon fisheries are two distinct fisheries because they operate with different types of gear; and (d) per Grunert I, the emergency regulation was invalid because it exceeded the board’s statutory authority. Judge Morse reasoned that, even with the ten-delivery requirement, the emergency regulation was still “dramatically different” from the fishery regime envisioned by the Limited Entry Act as Grunert I described it.
3. On appeal, the board argues that Gru-nert I only identified one fatal flaw in the cooperative scheme — the lack of any requirement of meaningful, active participation by each member of the cooperative fishery. The board maintains that the emergency regulation adequately addressed that flaw by requiring all cooperative fishers in the Chig-nik salmon fishery to make at least ten deliveries during the commercial fishing season. The board also argues that even though the emergency regulation has expired, we should consider these issues under the public interest exception to the mootness doctrine.
4. On cross-appeal, Grunert argues that the cooperative and open fisheries are not distinct fisheries, and that the emergency regulation therefore impermissibly allocates fishery resources within a single fishery. Grunert also argues that the emergency regulation is invalid because it allows cooperative fishers to operate fish traps; it requires permit holders to “pledge” their permits in violation of AS 16.43.150(g); and it authorizes a legal entity other than a natural person to operate gear in violation of AS 16.43.140(a). Grunert also argues that the timing of our decision in Grunert I did not justify the board’s finding of an emergency.
*12485. Because the 2005 emergency regulation has expired, whether there was an emergency is now a moot issue. We decline to invoke the public interest exception to review this issue. But we do find the public interest exception applicable to the remaining issues raised on appeal and therefore address them on the merits.
6. The Board of Fisheries emergency regulation, former 5 AAC 15.358, was not a valid exercise of the board’s authority. The Chignik cooperative fishery scheme permitted by the emergency regulation was fundamentally at odds with the Limited Entry Act. Although the ten-delivery requirement mandated some significant participation by each participating permit holder, the emergency regulation still allowed permit holders in the cooperative to benefit economically from the work of others. If the board wants to implement a cooperative regime, it must seek legislative approval first. Our instruction in Grunert I to this end is applicable here: “Before this regulatory scheme accomplishes such radical departure from the historical model of limited entry fisheries in Alaska and the spirit of the Limited Entry Act, ... we conclude that the legislature must first authorize the board to approve cooperative salmon fisheries.”4 The legislature might conclude that a cooperative Chignik salmon fishery is desirable and that the board should have authority to approve cooperative commercial fisheries. But because it has not yet done so, the emergency regulation was not authorized by the Limited Entry Act.
7. We address more briefly these other issues:
(a) The emergency regulation authorized a legal entity other than a natural person to operate gear in a Commercial Fishing Entry Commission administration area, in violation of AS 16.43.140.5 Under the Limited Entry Act, only “natural persons” with valid entry permits may operate gear.6
(b) At oral argument on appeal, Grunert asserted that the board’s cooperative system arbitrarily allocates the Chignik salmon catch between the open and cooperative fishers. The superior court suggested that, under the cooperative system, the open fishers only have access to a small percentage of the allocation to the whole Chignik fishery. But this issue has not been squarely addressed by the parties’ briefs. We therefore will not decide it here.
(c) We conclude that the cooperative system does not require “pledging” of permits, and that it therefore does not violate AS 16.43.150(g).
8.In conclusion, we AFFIRM that portion of the superior court’s decision that held former 5 AAC 13.358 invalid, and therefore AFFIRM the judgment. An opinion of the court will follow.
Entered by direction of the court.
Clerk of the Appellate Courts
/s/Marilyn May
Marilyn May
. Grunert v. State, 109 P.3d 924, 936 (Alaska 2005) (Carpeneti, J., dissenting).
. Id. at 937-39.
. Id. at 939-41.
. Id. at 941.
. Id. at 933 (emphasis added).
. Id. at 934 (emphasis added).
. Id. (emphasis added).
. Id. (emphasis added).
. Id. (emphasis added).
. Id. at 935 (emphasis added).
. Former 5 AAC 15.358(b)(7)(C).
. Op. at 1234.
. Id. at 1233.
. Id.
Carpeneti, Justice, dissents from this order. His dissent is attached.
. Grunert v. State (Grunert I), 109 P.3d 924 (Alaska 2005).
. Former 5 AAC 15.358(b)(7).
. Compare former 5 AAC 15.358(£)-(h) and 2005 Chignik Management Area Commissioner’s Permit Cooperative Salmon Fixed Leads, § 4(a) with 5 AAC 39.260, 39.240, 15.332(c).
. Grunert I, 109 P.3d at 936.
. See id. at 934 (explaining that AS 16.43.140(a) limits operation of gear to persons with valid entry permits).
. AS 14.43.990(7).