State v. Arnariak , 941 P.2d 154 ( 1997 )

OPINION

MATTHEWS, Justice.

Round Island is an island owned by the State of Alaska and located in Bristol Bay. It is part of the Walrus Islands State Game Sanctuary which was established in 1960. AS 16.20.092. No one may enter Round Island without a permit; hunting and the discharge of firearms are prohibited.¹ 5 AAC 92.066 (1995); 5 AAC 92.510(a)(13) (1995).

Adam and Marie Arnariak have been charged with entering Round Island without a permit and Adam has been charged with the unlawful discharge of a firearm on the island. See State v. Arnariak, 893 P.2d 1273, 1274 (Alaska App.1995). Ml charges are violations of 5 AAC 92.066.

The Arnariaks moved for the dismissal of these charges, arguing that the regulation on which they are based was preempted by the federal Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361-1407. Id. The MMPA prohibits the taking of marine mammals and provides that “[n]o State may enforce, or attempt to enforce, any State law or regulation relating to the taking of any species ... of marine mammal within the State.” 16 U.S.C. § 1379(a). The MMPA exempts certain Maska Natives from the act when they harvest marine mammals for certain purposes. 16 U.S.C. § 1371(b) (“[T]he provisions of this chapter shall not apply with respect to the taking of any marine mammal by any Indian, Meut, or Eskimo who resides in Maska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean if such taking — (1) is for subsistence purposes; or (2) is done for purposes of creating and selling authentic native articles of handicrafts and clothing_”).

The district court granted the Arnariaks’ motion to dismiss. The court of appeals affirmed. Arnariak, 893 P.2d at 1277. We granted the State’s petition for hearing and now reverse.

In order to conclude that MMPA preempts the regulations which prohibit entry onto Round Island without a permit and prohibit the discharge of firearms on Round Island, it would be necessary to accept the conclusion that Congress, by enacting section 1379(a), intended to preclude the State from barring entry onto state property and from barring the discharge of firearms on state property. In our view, such a conclusion is unwarranted.

The State has the right to exclude entry onto its property and the right to prohibit certain activities from being conducted thereon. State property is protected from federal takings under the Fifth Amendment to the United States Constitution just as private property is. United States v. 50 Acres of Land, 469 U.S. 24, 31, 105 S.Ct. 451, 455-56, 83 L.Ed.2d 376 (1984); Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); California v. United States, 395 F.2d 261, 263-64 (9th Cir.1968). A governmental attempt to require public access to private property is unconstitutional and invalid unless the government first follows the condemnation process and pays just compensation. Nollan v. California Coastal Comm’n, 483 U.S. 825, 831-32, 107 S.Ct. 3141, 3146, 97 L.Ed.2d 677 (1987) (A permanent physical occupation will be deemed to have occurred “where individuals are given a permanent and continuous right to pass to and fro, so that the real property may eontin-' uously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.”); Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 393, 62 L.Ed.2d 332 (1979) (“In this case, we hold that the ‘right to exclude,’ so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation.”); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-16, 43 S.Ct. 158, 159-60, 67 L.Ed. 322 (1922).² It follows that section 1379(a) would be unconstitutional were it interpreted to require the State to permit access to and the discharge of firearms on Walrus Island.

Statutes should be construed in a manner which avoids a substantial risk of unconstitutionality, where such a construction is reasonable. Concrete Pipe and Products, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 627-30, 113 S.Ct. 2264, 2282-83, 124 L.Ed.2d 539 (1993); Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 498 (Alaska 1991). We follow this precept in this case and interpret section 1379(a) not to preclude the State from restricting access to or from prohibiting the discharge of firearms on state land. The language of section 1379(a) will reasonably bear this interpretation. It preempts regulations “relating to the taking” of marine mammals. Whether the phrase “relating to the taking ” extends to regulations protecting marine mammals on state-owned land is a question which cannot be conclusively answered merely by reference to the language of section 1379(a).

The legislative history of MMPA, however, does give an authoritative answer to this question. The report of the Committee on Merchant Marine and Fisheries of the House of Representatives concerning MMPA makes clear that the act was not intended to interfere with state sanctuaries which protect marine mammals.- The report states: “It is not the intention of this Committee to foreclose effective state programs and protective measures such as sanctuaries ...H.R.Rep. No. 92-707, at 28 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4161 (emphasis added).³

The MMPA is designed to protect marine mammals “to the greatest extent feasible.” 16 U.S.C. § 1361. “The purpose of this legislation is to prohibit the harassing, catching and killing of marine animals....” H.R.Rep. No. 92-707, at 11 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4144.⁴ The text of the act identifies as its “major objective” the prevention of stocks of marine mammals from diminishing “beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part....” 16 U.S.C. § 1361(2). The act also recognizes the need “to protect essential habitats, including the rookeries, mating grounds, and areas of similar significance for each species of marine mammal from the adverse effect of man’s actions.... ” Id. In view of these expressions of purpose, it is difficult to believe that Congress also intended a meaning which would preclude the State from continuing to maintain a walrus sanctuary on state-owned islands which had previously been recognized as “the sole remaining place in the state where walruses annually haul out on land” because “all similar ‘hauling grounds’ ... have been abandoned by walruses due to excessive molestation and slaughter....” AS 16.20.090(a)(1).

We are aware that Congress’s use of the phrase “relating to” in an express preemption clause has been held to suggest a broad scale preemption. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 2036-37, 119 L.Ed.2d 157 (1992); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987). See also American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). However, this, at most, is merely one guide to the meaning or intended scope of an enactment; it does not necessarily control where there is evidence that another meaning was intended, or where other rules of construction are also applicable. Here the legislative history, the purpose of MMPA, and the rule that statutes should be construed to avoid an unconstitutional result persuasively indicate that MMPA’s preemption is not so broad as to prevent the State from limiting access to, or the discharge of firearms on, state wildlife refuges.

There is, in addition, another rule of construction which supports our conclusion. This is the presumption against finding federal preemption in areas traditionally regulated by the states. In Totemoff v. State, 905 P.2d 954, 966 (Alaska 1995), we noted:

The clear statement doctrine “counsels that a ... court should not apply a federal statute to an area of traditional state concern unless Congress has articulated its desire in clear and definite language to alter the delicate balance between state and federal power by application of the statute to that area.”

(Quoting H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 495 n. 6 (8th Cir.1992)). The regulation of state lands is a traditional state function. See EEOC v. Wyoming, 460 U.S. 226, 239, 103 S.Ct. 1054, 1061-62, 75 L.Ed.2d 18 (1983) (“The management of state parks is clearly a traditional state func-tion_”). Congress has not manifested in the MMPA in clear and definite language a desire to displace the State’s ability to ban certain activities in state wildlife sanctuaries.

For the above reasons we conclude that the MMPA does not preclude the State from limiting access to, or the discharge of firearms on, Round Island. The opinion of the court of appeals is REVERSED and this case is REMANDED with directions to reverse the decision of the district court and to remand this case to the district court for further proceedings.

COMPTON, C.J. and RABINOWITZ, J., concur.

SHORTELL, Justice pro tem, dissents.

1 . The legislative findings and purpose of the Walrus Island State Game Sanctuary are expressed in AS 16.20.090 as follows:

(a) The legislature recognizes that

(1)the Walrus Islands are the sole remaining place in the state where walruses annually haul out on land and all similar "hauling grounds” in the state which were formerly utilized have been abandoned by walruses due to excessive molestation and slaughter;

(2) the Walrus Islands are uninhabited, and the walruses frequenting them are not required by the state for subsistence utilization;

(3) the Walrus Islands have great importance as a retreat for the Pacific walrus from the standpoints of conservation, scientific value, and tourist interest;

(4) the Department of Natural Resources has taken appropriate action to achieve transfer of title in the Walrus Islands to the state.

(b) The purpose of AS 16.20.090-16.20.098 is to protect the walruses and other game on the Walrus Islands.

2 . PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), is arguably contrary authority, but we think it is distinguishable for the reasons that follow. PruneYard held that a state may require a privately owned shopping center, open to the general public, to permit individuals to exercise rights of free expression on the shopping center’s property. Round Island is not open to the general public; access is limited to no more than 30 persons a day and only between May 1 and September 1. The PruneYard Shopping Center attracted 25,000 persons a day. Id. at 78, 100 S.Ct. at 2039. See, Nollan v. California Coastal Comm’n, 483 U.S. 825, 832 n. 1, 107 S.Ct. 3141, 3145 n. 1, 97 L.Ed.2d 677 (1987); Pacific Gas & Elec. v. Public Util. Comm'n of California, 475 U.S. 1, 12 n. 8, 106 S.Ct. 903, 910 n. 8, 89 L.Ed.2d 1 (1986) (plurality opinion). Unlike the pamphleteering in PruneYard, unrestricted hunting conflicts with the State's goals in maintaining the Round Island Sanctuary. Preventing the State from "prohibiting this sort of activity will unreasonably impair the value or use of [the] property as a [sanctuaiy].” PruneYard, 447 U.S. at 83, 100 S.Ct. at 2042. The MMPA would prohibit any State imposed restrictions on walrus hunting on the property. The PmneYard decision emphasized that the owner was not restricted from imposing "reasonable time, place and manner restrictions to minimize interference with the owner’s commercial functions.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434, 102 S.Ct. 3164, 3175, 73 L.Ed.2d 868 (1982). See also, Dolan v. City of Tigard, 512 U.S. 374, 394, 114 S.Ct. 2309, 2321, 129 L.Ed.2d 304 (1994) (“Petitioner would lose all rights to regulate the time in which the public entered onto the Greenway, regardless of any interference it might pose with her retail store. Her right to exclude would not be regulated, it would be eviscerated.").

3 . Similarly, the report states: "There is no intention or desire within the Committee to remove any incentive from the states ... to protect animals residing within their jurisdictions...." H.R.Rep. No. 92-707, at 18 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4151.

4 . As noted, the act exempted from its coverage subsistence hunting by Alaska Natives. 16 U.S.C. § 1371(b). Logically, this exemption indicates a Congressional policy that MMPA not interfere with marine mammal hunting by Alaska Natives. It is not a mandate requiring land owners to open their land to such activities. The legislative histoty of MMPA supports the view that "present levels of taking” by Alaska Natives were to be protected, but the expansion of hunting areas was not contemplated:

The House bill exempted Alaskan Indians, Aleuts and Eskimos from the moratorium and the permit requirements to the extent they take an animal for subsistence purposes, not wastefully and not for direct or indirect commercial sale. The Senate amendment extended the exemption to allow for the so-called "cottage industries” of the Alaskan natives. The House bill would prohibit the taking, by natives or anyone else, of animals belonging to an endangered species, whereas the Senate amendment would allow such animals to be taken by natives. The conferees essentially adopted the provisions of the Senate amendment.

The conferees were aware of the relatively small amount of solid data on the effects of native taking of marine mammals, and given that lack of information were not disposed unilaterally to terminate the present levels of taking by Alaskan Indians, Aleuts and Natives of marine mammals, including endangered species such as bowhead whales.

H.R.Conf.Rep. No. 92-1488, at 23 (1972) (emphasis added).