Full opinion text
MEMORANDUM OF DECISION HOLLAND, Chief Judge. This case raises important questions of first impression for the court with respect to the validity of regulations promulgated by the Alaska Board of Game for the implementation of subsistence hunting rights which are protected by federal law. BACKGROUND In 1973, Congress began considering what ultimately became the Alaska National Interest Lands Conservation Act (ANIL-CA). ANILCA became law on December 2, 1980, as Pub.L. No. 96-487, 94 Stat. 2371, 16 U.S.C. §§ 3101-3233. Title VIII of AN-ILCA pertains to the “subsistence way of life”, making provision for subsistence management and use of “public lands” in Alaska. ANILCA §§ 801-816, 16 U.S.C. §§ 3111-3126, Title VIII. The term “public lands” is defined by ANILCA § 102(3). 16 U.S.C. § 3102(3). With certain exceptions “public lands” are lands situated in Alaska, the title to which is in the United States after December 2, 1980. Lands owned by the State of Alaska and privately owned lands were thus not directly affected by ANILCA. However, ANIL-CA § 805(d), 16 U.S.C. § 3115(d), provided that the State of Alaska might opt to enact laws of general applicability consistent with ANILCA and thereby become entitled to manage fish and game on public lands as well as state-owned lands in Alaska. ANILCA § 805(d) provides: (d) The Secretary shall not implement [the federal subsistence management program] if within one year from December 2, 1980, the State enacts and implements laws of general applicability which are consistent with, and which provide for the definition, preference, and participation specified in, sections 3113, 3114 and 3115 of this title, such laws, unless and until repealed, shall supersede such sections insofar as such sections govern State responsibility pursuant to this sub-chapter for the taking of fish and wildlife on the public lands for subsistence uses. Laws establishing a system of local advisory committees and regional advisory councils consistent with this section shall provide that the State rulemaking authority shall consider the advice and recommendations of the regional councils concerning the taking of fish and wildlife populations on public lands within their respective regions for subsistence uses. The regional councils may present recommendations, and the evidence upon which such recommendations are based, to the State rulemaking authority during the course of the administrative proceedings of such authority. The State rulemaking authority may choose not to follow any recommendation which it determines is not supported by substantial evidence presented during the course of its administrative proceedings, violates recognized principles of fish and wildlife conservation or would be detrimental to the satisfaction of rural subsistence needs. If a recommendation is not adopted by the State rulemaking authority, such authority shall set forth the factual basis and the reasons for its decision. Anticipating the enactment of ANILCA by over two years, the Legislature of the State of Alaska adopted a subsistence priority statute in 1978. Ch. 151, SLA 1978. Significantly, the Alaska priority for subsistence fishing and hunting thusly created was not restricted to Alaskans residing in rural areas. However, the Alaska Board of Fisheries adopted first a policy and later a regulation which in effect linked subsistence fishing to particular geographic communities. Effective May 30, 1982, the Board of Fisheries and the Board of Game jointly adopted a regulation which for the first time expressly associated subsistence fishing and hunting rights with rural residents through regulations adopted in 1982. 5 AAC § 99.010 (1982). By various submissions made by the State of Alaska between December 2, 1981, and April 29, 1982, the State of Alaska obtained, on May 14, 1982, a determination by the Secretary that the State’s: [Subsistence PJrogram will be in compliance with Sections 803, 804, and 805 of ANILCA as of June 2, 1982. As a result of this certification of compliance, the State retains its traditional role in the regulation of fish and wildlife resources on public lands in Alaska. Letter, James Watt (Secretary) to Jay Hammond (Governor of Alaska), dated May 14, 1982; Appendix II at 1. By reason of the foregoing determination, Alaska’s 1978 subsistence priority statute became operative as to all state lands and to virtually all federally owned lands in Alaska. Alaska’s first subsistence fishing policies were successfully challenged in Madison v. Alaska Department of Fish & Game, 696 P.2d 168 (Alaska 1985). The Alaska Supreme Court held that Alaska’s priority for subsistence fishing (and therefore presumably hunting also) would not permit the implementation of the subsistence community concept. After a detailed review of the legislative history of ch. 151, SLA 1978, the Alaska Supreme Court observed: The legislative history indicates that the legislature intended to protect subsistence use, not limit it. The words “customary and traditional” serve as a guideline to recognize historical subsistence use by individuals, both native and nonnative Alaskans. In addition, subsistence use is not strictly limited to rural communities. For these reasons, the board’s interpretation of “customary and traditional” as a restrictive term conflicts squarely with the legislative intent. Madison, 696 P.2d at 176 (emphasis supplied, footnote omitted). At this juncture, the Alaska Supreme Court makes reference to ANILCA in a footnote. In addressing an argument made by the Board of Fisheries, the Alaska Supreme Court observes that legislation pending before Congress with regard to subsistence hunting and fishing when the Alaska Legislature adopted ch. 151, SLA 1978, did not then contain the “rural Alaska resident” limitation which ultimately became a part of ANILCA as now expressed in ANILCA § 803, 16 U.S.C. § 3113. In retrospect, it is clear that Alaska’s first subsistence law failed in one material respect to anticipate what Congress would require in ANILCA: ch. 151, SLA 1978, did not restrict the subsistence priority to rural Alaskans. As a consequence of Madison, on September 23, 1985, the Secretary advised the Governor of the State of Alaska that the State’s subsistence program was no longer in compliance with ANILCA. Letter, Department of the Interior to Governor William Sheffield, dated September 23, 1985; Appendix II at 2. The Secretary further advised the State that it had until June 1, 1986, to bring its subsistence program into compliance with ANILCA; that is, “requiring] that the subsistence preference be limited to those rural Alaskans who customarily and traditionally make use of subsistence resources.” Id. In response to the foregoing, the Alaska Legislature, in early 1986, adopted Alaska’s second subsistence law, ch. 52, SLA 1986. This act effected multiple amendments to the earlier subsistence statute. The main operative provision of chapter 52 is codified as AS 16.05.258 which, along with applicable statutory definitions, expressly limit subsistence hunting and fishing to rural areas of the state and those residing in rural areas. PLAINTIFF’S CLAIMS Based upon the respective regulation-authorizing provisions of ch. 151, SLA 1978, and ch. 52, SLA 1986, the Board of Game has promulgated a series of regulations having application to hunting moose and caribou in Game Management Unit 19 which includes Lime Village, Alaska. These regulations form the basis for plaintiffs’ complaint. They are collected in Appendix I at 14-32. The issues raised by plaintiff Bobby and the class of Lime Village residents certified by the court have changed with time and the additions, deletions, and amendment of regulations pertaining to hunting in the vicinity of Lime Village, Alaska. The issues have most recently been framed by a second amended and supplemental complaint filed on October 16,1986 (Docket No. 39). This complaint focused upon the closed season, individual bag limit, village harvest quota, and management area restrictions imposed on Lime Village residents by the Board of Game, as well as two collateral issues which are suggested by these regulations or the potential enforcement of them. Plaintiffs contend that the regulations are arbitrary, unreasonable, and unnecessary, and that they “fail to accord to plaintiff and his class the priority for non-wasteful subsistence uses required by Section 804 of ANILCA.” Second Amended & Supplemental Complaint at 9, ¶ 15. Plaintiffs seek a declaration that the closed season, bag limit, village harvest quota, and management area restrictions are unlawful. Plaintiffs seek an injunction from the court requiring the State to submit to the court, for approval and incorporation into a final judgment, regulations pertaining to the subsistence uses of moose and caribou by the plaintiffs. The defendant denies the essential operative allegations of the complaint. The court has under consideration four motions which will be discussed in the following order: I. Defendant’s motion for summary judgment, which addresses the principal issues raised by plaintiffs’ second amended and supplemental complaint; namely, the regulation of the taking of moose and caribou through the imposition of hunting seasons and bag limits. IIA. Plaintiffs’ supplemental motion for partial summary judgment on a collateral issue, pertaining to the taking of antlerless moose and the impact of AS 16.05.780 thereon. IIB. Defendant’s motion to dismiss, also directed at the antlerless moose statute. This motion to dismiss also seeks to carve out of plaintiffs’ complaint a challenge to the creation of a management area for Lime Village. III. Plaintiffs’ motion for partial summary judgment, which puts before the court a second collateral issue concerning the interpretation and application of AS 16.05.259, which statute purports to prohibit persons such as plaintiffs from asserting subsistence priority rights as a defense to state prosecution for the violation of game regulations. DISCUSSION I. Regulation of the Taking of Moose & Caribou The court takes up first the issues which are the primary focus of the case and the State’s motion for summary judgment. This motion brings before the court the contentions of plaintiffs’ second amended and supplemental complaint with respect to the imposition of seasons and bag limits on the taking of caribou and moose by the residents of Lime Village (the plaintiffs here). The motion is opposed. Before addressing the substance of these issues, some preliminary comments upon the nature of these proceedings, and in particular the scope and type of judicial proceedings under ANILCA § 807, 16 U.S.C. § 3117, are appropriate. A. Judicial Enforcement of ANILCA Section 805(a)-(c) of ANILCA, 16 U.S.C. § 3115(a)-(c), sets out the basic federal structure for implementation of the subsistence rights created by Title VIII of ANILCA on public lands within the State of Alaska. Prior to ANILCA, management of fish and wildlife on public lands in the State of Alaska had been carried out by the State of Alaska through its Department of Fish & Game. But for the provisions of ANILCA § 805(d), 16 U.S.C. § 3115(d), management of fish and game on federally owned public lands in the State of Alaska would have been given over to the Department of the Interior. ANILCA § 805(d), 16 U.S.C. § 3115(d), in substance provides that the Secretary will not implement the federal subsistence priority program if the State of Alaska, “enacts and implements laws of general applicability which are consistent with, and which provide for the definition, preference, and participation specified in, §§ 3113, 3114, and 3115 of [ANILCA].” ANILCA §§ 803, 804, and 805. The State of Alaska has adopted such a law in Chapter 52, Session Laws of Alaska 1986, AS 16.05.258. Section 6, ch. 52, SLA 1986, AS 16.05.258, sets forth the detailed procedure by which the Board of Game is to allocate fish and game for subsistence uses. Plaintiffs do not challenge the consistency of ch. 52, SLA 1986, with ANILCA. AS 16.05.255 has at all times here pertinent provided generally that: (a) The Board of Game may adopt regulations it considers advisable in accordance with the Administrative Procedure Act (AS 44.62) for (2) establishing open and closed seasons and areas for the taking of game; (4) setting quotas, bag limits, harvest levels, and sex, age, and size limitations on the taking of game.... Section 6, ch. 52, SLA 1986, AS 16.05.258(f), specifically provides that: (f) Takings authorized under this section are subject to reasonable regulation of seasons, catch or bag limits, and methods and means.... Pursuant to the foregoing state authority, the Board of Game has undertaken from time to time the enactment of various regulations pertaining to the taking of moose and caribou by plaintiffs, residents of Lime Village, Alaska. It is entirely clear that Congress understood that there would be state regulation of subsistence uses and made provision for the same in ANILCA. In this regard, AN-ILCA § 805(d), 16 U.S.C. § 3115(d), in authorizing state management of subsistence uses, provides in part: Laws establishing a system of local advisory committees and regional advisory councils consistent with this section [16 U.S.C. § 3115] shall provide that the State rule-making authority shall consider the advice and recommendations of the regional councils concerning the taking of fish and wildlife populations on public lands within their respective regions for subsistence uses_ If a recommendation is not adopted by the State rulemaking authority, such authority shall set forth the factual basis and the reasons for its decision. (Emphasis supplied.) Plaintiffs do not challenge the Board of Game’s power to promulgate regulations. Plaintiffs do challenge the Board of Game’s various regulations which establish seasons and bag limits for the taking of moose and caribou. They contend these regulations are “arbitrary, unreasonable, and unnecessary, and they fail to accord to plaintiff and his class the priority for non-wasteful subsistence uses required by Section 804 [16 U.S.C. § 3114] of ANILCA.” Plaintiffs' Second Amended and Supplemental Complaint at 9, ¶ 15. Section 807(a) of ANILCA, 16 U.S.C. § 3117(a), provides in pertinent part: Local residents ... aggrieved by a failure of the State ... to provide for the priority for subsistence uses set forth in section 3114 of this title (or with respect to the State as set forth in a State law of general applicability if the State has fulfilled the requirements of section 3115(d) of this title) may ... file a civil action in the United States District Court for the District of Alaska to require such actions to be taken as are necessary to provide for the priority.... In a civil action filed against the State, the court shall provide relief, other than preliminary relief, by directing the State to submit regulations which satisfy the requirements of section 3114 of this title; when approved by the court, such regulations shall be incorporated as part of the final judicial order, and such order shall be valid only for such period of time as normally provided by State law for the regulations at issue. Defendant does not challenge this court’s jurisdiction, nor does it contest this court’s authority under ANILCA § 807, 16 U.S.C. § 3117, to invoke the remedy which plaintiffs seek in the event that the Board of Game regulations are found deficient or unlawful. It is therefore this court’s duty to determine whether or not the Board of Game has failed to afford subsistence uses of moose and caribou the priority to which these uses are legally entitled and, if so, to require defendant, through its Board of Game, to adopt and to submit new regulations to the court for review. Section 807 of ANILCA, 16 U.S.C. § 3117, does not prescribe any particular mode of analysis for an inquiry into the consistency of state rulemaking with the State’s general law on subsistence. Since both ANILCA § 805(d), 16 U.S.C. § 3115(d), and AS 16.05.255(a) expressly contemplate a formal rulemaking process, and since it is abundantly clear, from the record before the court, that the State of Alaska undertook to employ a formal rule-making process as required by AS 16.05.-255(a), the court selects as the appropriate mode or scope of review that employed in analogous federal proceedings for the review of formal rulemaking undertaken by federal agencies. Thus, “rulemaking must be set aside if arbitrary, capricious, or an abuse of discretion.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971); American Tunaboat Association v. Baldrige, 738 F.2d 1013, 1016 (9th Cir.1984). In the latter case, the Ninth Circuit Court of Appeals elaborated on the scope of review in cases such as this as follows: Despite the narrow scope of review under this standard and the broad discretion afforded NO A A in administering the MMPA, we affirm the decision of the district court. In doing so, we have in mind the rule that, even though an agency decision may have been supported by substantial evidence, where other evidence in the record detracts from that relied upon by the agency we may properly find the agency rule was arbitrary and capricious. Id. at 1016. More generally, but also appropriate to this case, Professor Davis in his text addressed the issues which might arise with regard to legislative rulemaking (and plainly the regulations with which we deal are such) as follows: Whenever a legislative body has delegated power to an agency to make rules having force of law (whether or not the delegation is explicit) the rules the agency makes pursuant to the granted power have the same force as a statute if they are valid, and they are valid if they are constitutional, within the granted power, and issued pursuant to proper procedure; a court may no more substitute its judgment as to the content of a legislative rule than it may substitute its judgment as to the content of a statute. K.C. Davis, Administrative Law & Government at 119 (2d ed. 1975). In this case, the challenge is not a constitutional one. Rather, the issues presented here have to do with whether or not the Board of Game regulations imposing seasons and bag limits upon subsistence hunters are or are not “within the grant of power” accorded the Board of Game by Alaska’s second subsistence law. Id. The case also presents issues of whether or not the Board of Game failed to use proper procedures. The court’s point of reference for purposes of evaluating the Board of Game regulations is Alaska’s second subsistence law because, as discussed in the above background material, the State’s regulatory scheme has “supplantfed] the federal regulatory scheme”. Kenaitze Indian Tribe, at 314. Regulations which are not within such grant are unlawful and must be enjoined as required by ANILCA § 807(a), 16 U.S.C. § 3117(a). B. History of Adoption of Bag Limits & Seasons for Lime Village The underpinnings for defendant’s motion for summary judgment on the issue of the lawfulness of the Board of Game’s regulations pertaining to the taking of moose and caribou by plaintiffs are to be found in state law and the record of proceedings before the Board of Game. There is no disagreement between the parties as regards the makeup of that administrative record which consists of both transcribed Board proceedings and exhibits. The Alaska Board of Game is established for the purposes of “conservation and development”, and is composed of seven members. AS 16.05.221(b). The board members are not state employees, and meet two or three times a year to adopt hunting regulations. The Board of Game is distinct from the Alaska Department of Fish & Game which is a full-time state agency, the powers and duties of which are set out in general in AS 16.05.020 and AS 16.05.050. The department has within it a number of divisions, including the Division of Game and the Division of Subsistence. The responsibilities of those divisions generally consist of compiling biological information about the resources, and to some extent about the harvest of resources, and providing that information to the Board of Game. The Division of Subsistence is statutorily charged with conducting socio-eco-nomic and resource use research, the data from which is provided to the Board of Game to assist it in making regulatory decisions. AS 16.05.094. ANILCA § 805(d), 16 U.S.C. § 3115(d), mandates that any Alaska general subsistence law make provision for advisory committees and regional councils, and board consideration of their recommendations. In 5 AAC § 96, the joint Boards of Fisheries and Game have established a system of advisory committees throughout the state, pursuant to their authority under AS 16.-05.260. There are currently approximately 75 advisory committees which hold meetings and provide a vehicle for public input to the board process. Individuals are able to testify or submit written comments to the committees directly. 5 AAC §§ 96.021 and -.050. The advisory committees are permanent committees established at geographic locations throughout the state, sometimes serving more than one community, with specified representation from their constituent communities. The joint Boards of Fisheries and Game have also established six fish and game regional councils, composed of the chairmen of the advisory committees within each region. 5 AAC § 96.220. The specified functions of the councils include holding public meetings to provide a forum for, and to assist the advisory committees in, obtaining opinions and recommendations from people interested in fish and wildlife matters “so as to achieve the greatest possible local participation in the decision-making process.” 5 AAC § 96.250(b). If a regional council makes a recommendation to the board concerning subsistence uses, the board should implement that recommendation unless it determines that it is not supported by substantial evidence presented during the board meeting, violates recognized principles of conservation, or would be detrimental to subsistence. 5 AAC § 96.610(e). The format of the regulatory cycle of the Board of Game follows generally the same pattern for each meeting. 5 ÁAC § 96.610. Certain kinds of regulations are open by the board for review and, several months before the meeting date, the Board of Game puts out a “call for proposals” to the public which is distributed to the advisory committees, and to any other interested individuals or groups. A period of time follows during which the public, including the advisory committees, can submit proposals for the Board of Game either to modify or repeal existing regulations or to adopt new regulations. The advisory committees meet during that time period to develop any proposals to submit. The proposals are transmitted to the department which assembles a proposal packet and sends those back out to the public and the advisory committees for review and comment. Written comments on the proposals may be submitted once the proposal packet has been distributed. The advisory committees generally have another set of meetings during this period to review those proposals and to develop positions on them. This proposal packet is in addition to the legal notice required by the state Administrative Procedure Act, AS 44.62.190. The Board of Game meetings are organized largely on a regional basis, so that people are able to talk about all the different species that occur in a particular region, and not have to remain at the location of the meeting for its entire duration. In proceeding through each geographic area of the state during a meeting, the board follows the same general procedure. Reports are given by the department, oral public testimony is taken, and board deliberations begin. Shortly after this lawsuit was filed, attorneys for plaintiffs submitted a proposal to the Board of Game for consideration during its March 1985 meeting. The proposal read: In order to provide for subsistence uses, it is proposed that with respect to moose and caribou there be no closed season and no individual bag limits for those domiciled in Lime Village in Unit 19. The justification for the proposal was the Kari Report (plaintiffs’ Exhibit 1; see footnote 8) and that report was available to and considered by the Board of Game during the March meeting. Plaintiffs’ attorneys participated extensively in the Board of Game proceedings. At the March 1985 meeting, the Board of Game was operating under the Madison decision pursuant to which, under Alaska’s first subsistence law, subsistence uses of game had to be authorized for both urban and rural Alaskans. The Board of Game addressed the problem posed by Madison as regards meeting the subsistence needs of the residents of Lime Village by creating the Lime Village management area. 5 AAC § 88.500(6)(A); Appendix I at 30. In support of that regulation, the Board of Game adopted formal “findings”. State’s Exhibit 13. Based upon public testimony and the Kari Report, the Board of Game found: The Board of Game concluded that establishing a management area for Lime Village would provide a reasonable opportunity for the residents of Lime Village and other Alaskans to harvest moose in the area, and that an increase in the caribou bag limit in the area as well as an increase in the length in the moose season would be a more reasonable mechanism for providing for subsistence uses than the then current, more limited, opportunities. Id. (1) that the residents of Lime Village are “extremely dependent on moose and caribou in [game management unit] 19(A).” State’s Exhibit 13. (2) that “the 40 residents of Lime Village are probably the most geographically isolated and subsistence dependent people in the state.” Id. (3) that moose and caribou were particularly important to Lime Village residents and that these animals “supply the highest proportion of the food eaten by residents of the area.” Id. (4) that Lime Village residents have “customarily harvested moose and caribou on an opportunistic basis throughout the year.” Id. (5) that the moose populations were stable and that the caribou population in the area was at a high level and growing. Id. Based on these findings, caribou hunting regulations for the Lime Village management area were reviewed by the Board of Game, increasing the caribou bag limit to five for Lime Village residents. 5 AAC § 81.320 (Register 94 at 5 — 144d; Appendix I at 23). The caribou season remained the same, August 10 through March 31. With respect to moose hunting, the Board of Game extended the season within the Lime Village management area to be open August 10 through September 25, November 20 through December 31, and February 1 through March 31, for a total of 148 days. 5 AAC § 81.320 (Register 94 at 5-144n; Appendix I at 16). Although based upon subsistence related information, these regulations were included in the generally applicable “big game” regulations. Id. In June, 1985, as a consequence of the holding in State of Alaska v. Eluska, 698 P.2d 174 (Alaska Ct.App.1985), the Board of Game met in emergency session to adopt subsistence regulations separate from the general hunting regulations in order to make the closed season regulations enforceable as to subsistence hunters. The interpretation of Madison — that all Alaskans were eligible to participate in subsistence uses — still applied at that time. During that meeting, the regulations governing the harvesting of moose and caribou in the Lime Village management area were not modified except that they were denominated “subsistence regulations” separate from the general hunting regulations. 5 AAC §§ 88.025(2) and 88.045(2) (Register 95 at ER-100 and ER-102; Appendix I at 24 and 17). These regulations appear to have been subsequently republished without change as permanent regulations. 5 AAC §§ 88.025(2) and 88.045(2) (Register 96 at 5-166.17 and 5-166.19; Appendix I at 25 and 18). Because of the adoption of Alaska’s second subsistence law in early 1986, an emergency meeting of the Board of Game was called in May and June of 1986 to address those regulations most in need of modification. At that meeting, the Board of Game examined the moose regulations applicable to Lime Village. Preliminarily, the Board of Game determined that, under AS 16.05.940(25), Lime Village is a rural area and that the uses of moose by residents of that area were customary and traditional under the eight criteria outlined in 5 AAC § 99.010(b). The Board of Game then discussed various modifications which could be made to the moose hunting regulations under the new subsistence law, which were not possible under Madison. The major difference in the legal parameters was that the Board of Game again had the authority to identify subsistence uses on a community or area basis, and thus could once again legally authorize subsistence hunting for only those residents domiciled in Lime Village, rather than being required to authorize subsistence hunting for all Alaskans, both rural and urban residents, who wished to participate if subsistence uses were present. The Board of Game modified the applicable regulations by closing the Lime Village management area to hunting by persons other than those domiciled within the area. Within the Lime Village management area, moose hunting was allowed (open season) from August 10 through September 25, and November 20 through March 31, a total of 179 days. 5 AAC § 88.045(2) (Register 100 at 5-166.19; Appendix I at 19). Additionally, the Board of Game raised the bag limit from one to two moose, and established a quota for the Lime Village management area of twenty moose, ten of which could be cows. Id. In the finding of an emergency, which the Board of Game made in order to support the emergency regulations adopted at the June 1986 meeting, the Board of Game explained that: [I]n light of the recent legislation, a comprehensive review of the hunting regulations is ... required, to maximize enforceability, and to make subsistence and other hunting opportunities for the coming seasons as consistent as practicable with the legislature’s intent. State’s Exhibit 19 at 1. The Board of Game explained that it had to review at that emergency meeting certain regulations which had been adopted the previous year in response to the Eluska decision in combination with the Madison decision, and also “regulations about which public comment or Department of Fish and Game recommendations were received since the regulations were adopted in June 1985.” Id. The Board of Game explained in the findings that at its next regular meeting on hunting regulations, then scheduled to begin March 30, 1987, that public comment would be taken. The Board of Game acknowledged that due to the emergency nature of the meetings, decisions had been made without public comment and might require amendment. The Board of Game looked toward modifying both the emergency and other regulations in response to the new legislation and “in light of public testimony and comments from the advisory committees and regional councils at future meetings, and as more information becomes available over time.” State’s Exhibit 19 at 2. In April 1987, the Board of Game met. Based upon the second subsistence law, the management area for Lime Village, as well as the antlerless moose and moose quotas, were repealed. Based upon the cumulative 1985-1987 record and further deliberations at the April meeting, the Board of Game adopted the following regulations applicable to the taking of caribou and moose by subsistence hunters in the game management area in which Lime Village is located: UNIT OPEN SEASON BAG LIMIT (2) .... Unit 19(A) south of the Kuskokwim River and Residents of Lime Village: Five caribou. Unit 19(B) Aug. 10-Mar. 31 Other Subsistence Hunters: One caribou. Aug. 10-Oct. 31 Nov. 1-Mar. 31 Three caribou. 5 AAC § 88.025(2) (Register 103 at 5-166.16; Appendix I at 807). OPEN SEASON BAG LIMIT UNIT (2) Unit 19, for residents of Lime Village only Aug. 10-Sept. 25 Nov. 20-Mar. 31 Two moose, only one of which may be a cow. Unit 19(A) Sept. 1-Sept. 20 One bull. Nov. 20-Nov. 30 One moose. Feb. 1-Feb. 10 5 AAC § 88.045(2) (Register 103 at 5-166.18; Appendix I at 799). C. Consistency of Regulations with State Law The Alaska Boards of Game and Fisheries, or their equivalents, have regulated the taking of fish and game by commercial operators and by the general public in Alaska for almost thirty years. There has been significant competition between commercial interests and sport hunters and fishermen. Alaska’s endorsement of the subsistence lifestyle pursuant to ANILCA has required that the state game managers deal with a new, third, competing claim upon available fish and game. This task has not been easy, as the history of the development of Alaska law regarding subsistence hunting and fishing indicates. Fish and game authorities have not only had to deal with another competing application of fish and game, but one entitled to “preference over other consumptive uses_” § 6, ch. 52 SLA 1986, AS 16.05.258(c). The job of dealing with subsistence was rendered even more difficult for the Board of Game because it has been caught between the demands of the courts of the State of Alaska and the Alaska Legislature. The court commends the Board of Game for its efforts to fit subsistence in its proper place in light of the difficult (if not impossible) situation which arose from the Madison decision. Madison opened subsistence hunting and fishing to urban as well as rural residents of Alaska under Alaska’s first subsistence law. Ch. 151, SLA 1978. The result in Madison was, for a time, the last word on the subject under Alaska law; but the result was totally at odds with ANILCA, which defines the subsistence uses which are entitled to priority in terms of “the customary and traditional uses by rural Alaska residents of wild, renewable resources”. ANILCA § 803, 16 U.S.C. § 3113. With the enactment of Alaska’s second subsistence law, ch. 52, SLA 1986, the tension created by the conflicting demands of Madison and ANILCA were resolved. Subsistence usage of game was again the province of those living in “rural” Alaska. Sections 6, 10, 11, ch. 52, SLA 1986, AS 16.05.258, AS 16.05.940(25) and (30). The Board of Game has now reviewed its Lime Village hunting regulations twice since the latter statute was enacted. As discussed hereinabove, plaintiffs claim that the Board of Game regulations establishing seasons and bag limits on the taking of moose and caribou are unlawful and therefore not valid. The court concludes that the Lime Village hunting regulations are indeed unlawful. As already noted, AS 16.05.255(a) grants the Board of Game the general authority to adopt regulations “it considers advisable” on the subjects of “open and closed seasons”, Section 255(a)(2), and “bag limits”, Section 255(a)(4). The second subsistence law grants the Board of Game specific authority to adopt regulations fixing “seasons [and] bag limits” with respect to subsistence hunting. § 6, ch. 52, SLA 1986, AS 16.05.258(f). Clearly, the Board of Game has the power to establish seasons and bag limits as to the subsistence taking of moose and caribou. As a predicate to issuing regulations, Alaska’s second subsistence law requires extensive analysis of underlying data, fact-finding, and then decision-making by the Board of Game. The board is required to “identify game populations ... that are customarily and traditionally used for subsistence in each rural area identified by the boards.” § 6, ch. 52, SLA 1986, AS 16.05.-258(a). The board is required to find what portion, if any, of game populations identified under Section 258(a) “can be harvested consistent with sustained yield.” Section 258(b)(1). The Board of Game is then to determine how much of that harvestable game is needed to “provide a reasonable opportunity to satisfy the subsistence uses [of game].” Section 258(b)(2). Finally, upon completion of this evaluation process, the board is to adopt regulations for each game population for which a harvestable portion is determined to exist. Applicable to the facts of this case, Section 258(e) provides that: If the harvestable portion [of the game population] is not sufficient to accommodate all consumptive uses of the [game] population, but is sufficient to accommodate subsistence uses of the [game] population, then nonwasteful subsistence uses shall be accorded a preference over other consumptive uses, and the regulations shall provide a reasonable opportunity to satisfy the subsistence uses. If the harvestable portion is sufficient to accommodate the subsistence uses of the [game] population, then the boards may provide for other consumptive uses of the remainder of the harvestable portion. The foregoing discussion suggests three areas of possible inquiry with respect to the regulations adopted by the Board of Game and pertaining to the taking of moose and caribou by the residents of Lime Village, Alaska: (1) Do bag limits and seasons for the taking of moose and caribou on their face violate Alaska’s second subsistence law? (2) Has the Board of Game followed the required statutory analytical process in adopting bag limits and seasons for the taking of moose and caribou by Lime Village residents? (3) Are the game regulations in question arbitrary or capricious in the light of the evidence in the record? The text of the current Board of Game subsistence hunting regulations pertaining to the taking of caribou and moose by Lime Village residents is set forth above. See also, Appendix I at 799 and 807. These regulations make express provision for “residents of Lime Village”. Over the relevant period of time (1980 to 1987), the regulatory provisions applicable to open seasons and bag limits for the taking of moose and caribou by Lime Village residents have moved in the direction of expanding the seasons and the take allowed. See Appendix I at 795 to 812. On their face, these regulations do not conflict with Alaska’s second subsistence law. That law expressly authorizes utilization of seasonal and bag limitations upon subsistence hunting. § 6, ch. 52, SLA 1986, AS 16.05.258(f). It is neither impossible nor necessarily unlikely that the seasons or bag limits as presently constituted would fail to accommodate the customary and traditional uses of moose and caribou by Lime Village residents, both in terms of the times of taking and the quantities of meat taken. If the required analysis were performed, and with a supporting record, the season and bag limit regulations now in force would survive plaintiffs’ challenge. However, the court feels constrained, as a result of its review of the transcripts of the Board of Game hearings which are part of the record, to observe that the Board of Game must in the future proceed with scrupulous care and caution in imposing seasons and bag limits on subsistence hunting. Bag limits and seasons are game management tools which have seen extensive use in Alaska and nationally. These restrictions have typically, if not universally, been used to regulate sport hunting. In this case, bag limits and seasons are being applied to a very different type of game use. In its purest form, the subsistence lifestyle is quite literally the gaining of one’s sustenance off the land. Typically, the sport hunter does not go hungry if the season ends without his taking any game or if he has taken and eaten his bag limit. The subsistence hunter who is without meat during a closed season or who has with his family consumed a fixed bag limit will go hungry unless some other game or fish are available and in season. Hunger knows nothing of seasons, nor is it satisfied for long after one’s bag limit has been consumed. The Board of Game must be attentive to the statutory definition of “subsistence hunting” and “subsistence uses”. §§ 10 and 11, ch. 52, SLA 1986, AS 16.05.-940(29) and (30). When read together as is necessary, these terms define subsistence hunting in terms of: [N]on-commercial, customary and traditional uses of wild, renewable resources by a resident domiciled in a rural area of the state for direct personal or family consumption as food ... and for the customary trade, barter, or sharing for personal or family consumption.... This definition is critical to the proper implementation of Alaska’s second subsistence law and will be discussed further hereinafter. The court would emphasize at this initial stage of the review that the Board of Game should not take the court’s foregoing comments to mean that the availability of one game population or of a fish stock is an element or a consideration which may be employed to restrict or reduce the demonstrated customary and traditional use of another game population. Established use of moose may not be restricted solely because fish are available. The Board of Game must determine separately the level of subsistence usage of each game population. § 6, ch. 52, SLA 1986, AS 16.05.258(b)(2). If bag limits and seasons are imposed on subsistence hunting, there must be substantial evidence in the record that such restrictions are not inconsistent with customary and traditional uses of the game in question. It must be clear in the record that subsistence uses will be accommodated, as regards both the quantity or volume of use and the duration of the use. Need is not the standard. Again, it matters not that other food sources may be available at any given time or place. The standard is customary and traditional use of game. We turn now to the second and third areas of inquiry—namely, the analysis used and procedures followed by the Board of Game in adopting regulations of subsistence hunting by Lime Village residents and the evidentiary support for those regulations. Based upon the following analysis, the court has concluded that the current regulations for the subsistence hunting of moose and caribou, 5 AAC § 88.025 (Register 103) and 5 AAC § 88.045 (Register 103) are deficient and must be reevaluated by the Board of Game. The great bulk of the work done by the Board of Game with respect to the evaluation of subsistence taking of moose and caribou by Lime Village residents was accomplished between 1983 and 1985. State’s Exhibit 1. That work culminated in the Board of Game hearings of March 27 and 29, 1985. State’s Exhibits 12A and 12B. As a result of those hearings, the Board of Game made certain findings, State’s Exhibit 13, and regulations were adopted fixing seasons and bag limits for the taking of moose and caribou by Lime Village residents. 5 AAC § 81.320 (Register 94; Appendix I at 796 and 803). Although, as discussed above, some adjustments were subsequently made to the latter regulations (see Appendix I at 797-799 and 804-807), the underlying evidentiary foundation and substance of the regulations pertaining to the taking of moose or caribou by Lime Village residents for subsistence uses was and is to be found in the March 1985 proceedings. What followed was refinement and perhaps reaction to continued pressure from plaintiffs. At the time when the foundational work for the regulations in question was accomplished by the Board of Game, Alaska’s first subsistence law was still in force. Ch. 151, SLA 1978 (Appendix I at 788-791). The March 1985 proceedings of the Board of Game must have been conducted under and with reference to that statute, not Alaska’s second subsistence law. The plaintiffs’ claims and the regulations now in force must be evaluated under Alaska’s second subsistence law which became effective June 1, 1986. Section 13, ch. 52, SLA 1986 (Appendix I at 793). Naturally, there were substantial similarities between the first and second Alaska subsistence laws inasmuch as both sought to qualify the State to manage fish and wildlife on public lands pursuant to ANIL-CA § 805(d), 16 U.S.C. § 3115(d). As discussed above, the first subsistence law was adopted before Congress finalized and enacted ANILCA; and the second subsistence law was not enacted by the Alaska Legislature until after the 1985 Board of Game proceedings. Not surprisingly, therefore, many of the considerations which were relevant to the 1985 proceedings are also relevant under the second Alaska subsistence law. Unfortunately, there is not an identity of considerations insofar as the questions now before the court. As discussed below, the court concludes, on the basis of the transcript of the June 1986 Board of Game proceedings, State’s Exhibits 17A and 17B, that the current regulations for the taking of moose and caribou by Lime Village residents for subsistence purposes which have their genesis in the March 1985 and June 1986 board proceedings were not promulgated through the use of the procedural analysis mandated by Alaska’s second subsistence law, see § 6, ch. 52, SLA 1986, AS 16.05.258, and do not have the required evidentiary support. Under Section 6 of Alaska’s second subsistence law, the Board of Game is to identify game populations “that are customarily and traditionally used for subsistence in each rural area identified by the boards.” In the March 1985 proceedings, the Board of Game identified moose and caribou as game populations customarily and traditionally used by plaintiffs for subsistence purposes. This finding is not disputed. Likewise, there is no dispute in this ease but that the plaintiffs are residents of and that Lime Village is a rural area. In March 1985, the Board of Game also expressly found that “residents of this area have customarily harvested moose and caribou on an opportunistic basis throughout the year”, that seasons established under prior regulations had not permitted Lime Village residents to “legally obtain the moose they need”, and that this led to under-reporting of harvests. State’s Exhibit 13. No additional evidence was taken nor were additional findings made as to the duration of plaintiffs’ customary usage of moose and caribou during the June 1986 Board of Game proceedings. The record now before the court does not provide an adequate basis for understanding or resolving the obvious conflict between a finding that Lime Village residents customarily and traditionally take moose and caribou “throughout the year” and a regulation that precludes them from taking moose during almost six months of the year and from taking caribou during just over four months of the year. The court concludes that the currently operative season regulations are necessarily arbitrary for they substantially fail to accommodate what the board has determined- to be the customary and traditional use of moose and caribou for subsistence purposes without first eliminating other consumptive uses. § 6, ch. 52, SLA 1986, AS 16.05.258(c). Much the same analysis applies to the Board of Game’s adoption of bag limits; however, for this discussion, the statutory focus shifts to some further provisions of Alaska’s second subsistence law. See § 6, ch. 52, SLA 1986, AS 16.05.258(b). Section 258(b) requires that the Board of Game determine both acceptable game harvest levels and the portion of those harvests needed to satisfy subsistence uses. Despite the fact that the March 1985 Board of Game proceedings predated the second Alaska subsistence law, the board did take evidence on and discuss harvest levels. Understandably, the Board of Game did not make the express numerical findings which the second Alaska subsistence law requires. It did find that moose populations in the Lime Village area were of “moderate density and ... relatively stable”. State’s Exhibit 13. It found that caribou populations were at “high levels and [have] been growing in recent years.” State’s Exhibit 13. The June 1986 Board of Game proceedings did not produce additional evidence as to harvest levels. No finding as to appropriate harvest levels for moose or caribou were made. The Board of Game appears to have adopted its 1986 revised moose and caribou regulations on the basis of the above generalized findings made in 1985 and without performing the analysis required by the second subsistence law. What the Board of Game clearly did not do, at either the 1985 or the 1986 hearing, was come to grips with the question of how much game — how many moose and caribou — were required to accommodate the customary and traditional use of these game populations by Lime Village residents. Alaska’s first subsistence law did not require the same specificity concerning the level of subsistence use as was required by Alaska’s second subsistence law. Compare § 9, ch. 151, SLA 1978, to § 6, SLA 1986, AS 16.05.258(b)(2). In 1986, Alaska’s second subsistence law did require a finding as to “how much of the harvesta-ble portion [of moose and caribou] is needed to provide a reasonable opportunity to satisfy the subsistence uses.... ” This the Board of Game failed to do. Certainly it is true that the board had some evidence before it in March of 1985 regarding the level of subsistence use of moose and caribou by Lime Village residents. However, due to a lack of findings or a clearly articulated analysis in the record, it is not possible for the court to ascertain how the board reached its determinations in 1985 and 1986 that the specified bag limits would accommodate the Lime Village subsistence usage of moose and caribou. The Board of Game findings conclude (at least as to caribou, but impliedly also as to moose) that the established bag limits “will provide a reasonable opportunity for customary levels of harvest for [Lime Village] residents”. State’s Exhibit 13 at 2. Without a finding or other clear articulation of the mode of analysis used as to what the subsistence use levels of moose and caribou were, and a finding or analysis of how those use levels were translated into bag limits, the court cannot evaluate the bag limits for consistency with the second Alaska subsistence law requirement that the State provide adequately for customary and traditional usage of game and that it permit other consumptive uses only out of the excess harvestable game beyond that which is required for subsistence uses. § 6, ch. 52, SLA 1986, AS 16.05.258(c). Because the Board of Game did not follow or articulate its use of the statutory analytical process for adopting bag limits as to subsistence hunting, those regulations are also arbitrary. A specific aspect of the bag limit regulations on subsistence hunting by Lime Village residents requires further comment. There is substantial evidence in the March 1985 record that moose and caribou are taken by a few hunters who then share their take with the whole community. It appears well established by the record that customary and traditional uses of moose and caribou have a communal aspect at Lime Village. Simply put, the very young, the old, and the infirm of the community are provided with meat by the healthy adult members of the community who are skilled at hunting. It is not clear from the Board of Game findings or the discussions of the board members how this aspect of the Lime Village subsistence tradition of hunting and game-sharing interrelates with bag limits. The court is concerned that the established bag limits do not accommodate this traditional aspect of Lime Village hunting of moose and caribou. The court makes specific mention of this point because it is necessary for the Board of Game, in reviewing the subject regulations, to give due consideration to the entirety of the definition of “subsistence uses” as set out in § 10, ch. 52, SLA 1986, AS 16.05.940(30). Such uses of game are defined in terms of customary and traditional use by rural Alaska residents. That definition is further qualified in a manner which is particularly pertinent to the foregoing discussion. The uses of game which are included for subsistence and therefore for priority purposes are “for direct personal or family consumption as food ... and for customary ... sharing for personal or family consumption.... ” The Board of Game must take care to accommodate the Lime Village tradition of sharing the moose and caribou they take. Since the subject regulations must be reviewed, there are two other subsidiary areas of concern which the court feels obliged to comment upon. Firstly, the court is concerned that customary and traditional use data is likely to be skewed downwards due to the fact that subsistence hunting was for some early years carried on, quite probably illegally with respect to both bag limits and seasons, under sport hunting regulations and most recently under subsistence regulations which (by the Board of Game’s own evaluation) failed to accommodate Lime Village area requirements. State’s Exhibit 13. The Board of Game and the Division of Subsistence of the Department of Fish & Game must do their best to correct and adjust their data to take account of the under-reporting which almost surely occurred as a result of fear of criminal sanctions which could follow accurate reporting of the taking of game for community use in excess of bag limits or out of season. For their part, plaintiffs must cooperate fully with regulators, through their advisory committees and regional council, in making a record that will support the regulations which are ultimately adopted. Secondly, and although not a primary issue in this case, some attention has focused upon the provisions of Alaska’s second subsistence law which operate when the Board of Game determines that there is not sufficient harvestable game to accommodate all competing uses (e.g., both subsistence and sport hunting), but is adequate to accommodate subsistence uses. In such event, the second subsistence law dictates priority for subsistence uses over other uses, and further provides that regulations “shall provide a reasonable opportunity to satisfy the subsistence uses.” § 6(c), ch. 52, SLA 1986, AS 16.05.258(c). It is not clear to the court how the above-quoted language was intended to operate, nor how (if at all) the Board of Game has applied it in this case. The Board of Game did make express reference to the quoted-statutory language in the final paragraph of its April 4, 1985, findings. State’s Exhibit 13. The court understands that the determination of the quantity of game which may be harvested consistent with recognized scientific principles of game management involves professional judgment based upon surveys which cannot be exact or calculated with mathematical precision. The court further understands that successful hunting is partly skill and partly chance. It follows that subsistence hunters cannot be guaranteed that they will locate some predetermined number of moose or caribou in a given area and take them in a given period of time. All of the variables — the predictions, the skill, and chance — impact actual results. If the quoted language is reflective of the vagaries of the foregoing variables, it is no cause for particular concern at this time. However, if that language is meant to have a more specific meaning or impact on subsistence hunting, then the Board of Game must take care to evaluate and articulate the meaning they attribute to this language and take care that its implementation does not adversely impact the preference to which subsistence hunting is entitled under Alaska’s second subsistence law. D. Conclusion On the basis of the extensive briefing by both plaintiffs and defendant on the State’s motion for summary judgment, and in consideration of the nature of these proceedings (review of administrative rulemaking), the court is in a position as discussed above to rule on plaintiffs’ claims. The court concludes that plaintiffs are entitled to the declaratory relief they seek with respect to 5 AAC §§ 88.025 and -.045. The current version of these regulations, as well as their precursers (including the 1985 version, 5 AAC § 81.320), were not adopted in conformity with § 6, ch. 52, SLA 1986, AS 16.05.258. They impose seasons not consistent with the board’s findings as to established customs of the people of Lime Village, and thereby unacceptably restrict the preference for subsistence uses dictated by § 6, ch. 52, SLA 1986, AS 16.05.258. The regulations impose bag limits which were not demonstrably of a size sufficient to accommodate the customary taking of moose or caribou at Lime Village. The Board of Game shall review its subsistence hunting regulations for Lime Village, Alaska, and shall submit to the court for review reenacted subsistence hunting regulations in accordance with Alaska’s second subsistence law and this decision. In the absence of evidence of imminent, irreparable harm to plaintiffs, the court declines to enter an injunction against the enforcement of 5 AAC §§ 88.025 and -.045 at this time. The court does, of course, retain jurisdiction of this matter under AN-ILCA § 807(a), 16 U.S.C. § 3117(a), and, upon request of the plaintiffs, the court will review its ruling as to injunctive relief if the State has not submitted revised regulations by June 15, 1989. II. Taking of Antlerless Moose; Lime Village Management Area By its motion to dismiss, the State in substance argues that the application to plaintiffs of AS 16.05.780 concerning the taking of antlerless moose and 5 AAC § 88.500(6)(A) establishing the boundaries of the Lime Village management area present issues which were either moot or not ripe for judicial review. The motion is opposed by plaintiffs. The Alaska Board of Game, at its meeting of April 1987, repealed 5 AAC § 88.500(6)(A). Accordingly, plaintiffs’ challenge of that regulation is indeed rendered moot. The situation as regards AS 16.05.-780, the antlerless moose statute, presents a slightly different problem. By Section 16.05.780 of the Alaska game laws, it is provided that: (a) The taking of antlerless moose in any game management unit or subunit or a portion of a unit or subunit is prohibited except that antlerless moose may be taken only under regulations adopted under (b) of this section after (1) the department recommends the season be opened in that year, based on biological evidence, and (2) a majority of active local advisory committees for that unit or subunit have recommended an opening for that year, after each has taken a vote and a majority of the members of those committees have voted in the affirmative. (b) Pursuant to (a) of this section the board, in its regularly scheduled annual game board meeting, may adopt regulations for the taking of antlerless moose in any game management unit or subunit in any year. This statute was enacted prior to ANIL-CA and the state’s election to assume responsibility for the management of game in Alaska consistent with ANILCA. The state concedes that it is unclear how the provisions of Alaska’s second subsistence law and the antlerless moose statute are to interact. State’s Memorandum in Support of Motions, March 17, 1987, at 31-32. However, counsel for the State further asserts that: The antlerless moose statute must be implemented by the advisory committees and the board [of game] in a manner consistent with the mandate that customary and traditional uses in rural Alaska are to be authorized unless sustained yield or subsistence uses themselves would be jeopardized. Id. at 32. The court has hereinabove ordered a review of subsistence hunting regulations pertaining to the taking of moose for subsistence purposes. The court takes counsel’s assertion to mean that the State will, in further analysis of its regulation of the taking of moose for subsistence purposes, interpret AS 16.05.780 in a fashion which will prevent subsistence users of moose from losing the preference to which they are entitled under § 6, ch. 52, SLA 1986, AS 16.05.258(c). As plaintiffs point out, the antlerless moose statute, unlike the management area regu