Avoiding the Obvious: Plain Meaning and the Endangerment of Alaska's Hunting Laws in Kinmon v. State

• Citation: Vol. 37
• Publication year: 2020

§ 37 Alaska L. Rev. 127. AVOIDING THE OBVIOUS: PLAIN MEANING AND THE ENDANGERMENT OF ALASKA'S HUNTING LAWS IN KINMON V. STATE

Alaska Law Review
Volume 37, No. 1, June 2020
Cited: 37 Alaska L. Rev. 127

AVOIDING THE OBVIOUS: PLAIN MEANING AND THE ENDANGERMENT OF ALASKA'S HUNTING LAWS IN KINMON V.STATE

Brendan McGuire ^[*]
Cormac Bloomfield ^[**]

ABSTRACT

This Comment critiques the court of appeals' statutory interpretation of Alaska's hunting laws in Kinmon v. State and proposes legislative reform to correct those judicially created errors. Kinmon arose from a series of hunts between 2009 and 2011 during which nonresident hunters did not pay for their big game tags until after the completion of their hunts. The guide leading these hunts was charged with violating section 16.05.340(a)(15) of the Alaska Statutes, which prohibits nonresidents from hunting big game without "previously purchasing" a big game tag. The Alaska Court of Appeals held in favor of the guide, reasoning that "previously purchasing" was ambiguous and could be understood to permit purchase of a big game tag after a hunt. This reading of the statute is faulty under the plain meaning canon of statutory construction and has deleterious policy implications. To address this error, this Comment proposes a legislative amendment to section16.06.340(a)(15) of the Alaska Statutes to clarify that "previously purchasing" a game tag requires purchase prior to a hunt.

I. INTRODUCTION

Alaska is, by some accounts, the most hunter-friendly state in the nation. ^[1] Hunting is central to the state's culture, both traditionally ^[2] and contemporaneously. ^[3] Hunting not only enriches Alaska's culture, it also contributes to the state's coffers: in 2019, Alaska netted nearly $40 million from the sale of fishing and hunting licenses, stamps, and tags. ^[4] Over $7.5 million of that revenue came from the sale of nonresident big game tags. ^[5] However, the Alaska Court of Appeals' decision in Kinmon v. State ^[6] threatens this valuable source of revenue and oversight created by the big game tag system.

The State charged Richard Kinmon, a licensed big game hunter, ^[7] with violating section 16.05.340(a)(15) of the Alaska Statutes ^[8] following a series of hunts between 2009 and 2011. ^[9] During these hunts, Kinmon allegedly allowed his clients to take game without "previously purchasing" big game tags. ^[10] At trial, Kinmon argued the statutory meaning of "previously purchasing" could reasonably be understood to include the provision of a tag with a promise to pay in the future, after a hunt. ^[11] The jury was presumably unconvinced by this argument as it convicted Kinmon on eight counts that turned, in part, on the phrase's definition. ^[12] On appeal, the court of appeals reversed four of those counts based upon a construction of "previously purchasing" under which a binding promise to pay after a hunt is sufficient to satisfy the statute's requirements. ^[13]

This Comment critiques the holding in Kinmon from both a legal and a policy perspective. As such, the Alaska legislature should correct the error of Kinmon by clarifying the statutory meaning of "previously purchasing." In making this argument, this Comment first presents Alaska's well-established canons of statutory construction and introduces Alaska's big game hunting laws in Part II. Part III then describes Kinmon in more detail to contextualize the application of those canons to the statutory scheme. Finally, Part IV shows that a proper application of the canons and salient policy considerations merit legislative action to correct the error in Kinmon. Specifically, the legislature should statutorily clarify that big game tags must be purchased prior to the commencement of a hunt.

II. BACKGROUND

To fully comprehend why Kinmon was wrongly decided, it is critical to both understand the tools of statutory construction that were misused and appreciate the statutory scheme to which those tools were misapplied. As to the former consideration, the court found the statute's language sufficiently ambiguous to merit applying the rule of lenity. ^[14] This most-straightforward of canons, the "plain meaning rule," is well known and used throughout the nation's various judicial systems. ^[15] In Alaska, the core of the rule is constructing statutes in accordance with their common usage. ^[16] Put bluntly, "[u]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." ^[17] The plain meaning of a statutory term may be further clarified by legislative history and the term's context in a larger statutory scheme. ^[18] To this end, Alaska courts use a "sliding scale" approach in which the plainer the statutory language, the more convincing contrary legislative history must be to negate that plain meaning. ^[19] In the criminal context, if, after applying this analysis, "the legislature's intent cannot be ascertained or remains ambiguous," then the rule of lenity is applied. ^[20] A court applying the rule construes the ambiguous statute in favor of the defendant. ^[21]

In Kinmon, these interpretive canons were improperly applied to the statutory scheme governing the regulation of hunting in Alaska. ^[22] Specifically, the court of appeals applied them to section16.05.340(a)(15) of the Alaska Statutes. ^[23] Under that statute, nonresidents are prohibited from hunting big game without "previously purchasing" a big game tag. ^[24] The significance of this statute is hard to understate as nonresidents have purchased sixty-seven percent of all big game tags sold in Alaska since 1977. ^[25] In the past decade, tags purchased by nonresidents accounted for $43,873,055, or approximately ninety-seven percent of the $45,172,155 in revenue from all big game tags. ^[26] As important as the revenue generated by section16.05.340(a)(15) is, the statute's wider goal of wildlife management is framed by the Alaska Constitution's directive that "wildlife . . . belonging to the State shall be utilized, developed, and maintained on the sustained yield principle." ^[27]

III. KINMON V. STATE

In Kinmon, the Alaska Court of Appeals faced a deceivingly simple question concerning big game hunting: whether statutory requirements to have "previously purchas[ed]" hunting tags require the actual payment of money or simply "a promise to pay in the future." ^[28] The court split on this question, but the majority ultimately held that the term "could reasonably be construed to encompass the delivery of goods with a binding promise to pay in the near future." ^[29]

The question of statutory interpretation revolved around Mr. Richard Kinmon, a big game guide licensed in Alaska. ^[30] The state charged and convicted Kinmon of eleven misdemeanor offenses arising out of hunting excursions he guided between 2009 and 2011; eight of these charges included offenses involving whether or not Kinmon's clients had "previously purchas[ed]" statutorily required big game tags. ^[31] Section 16.05.340(a)(15) of the Alaska Statutes states that "[a] nonresident may not take a big game animal without previously purchasing a numbered, nontransferable, appropriate tag, issued under this paragraph." ^[32] At trial and on appeal, Kinmon argued that the term "previously purchasing" was ambiguous as to whether or not nonresidents must pay money before the hunt or simply must "promise to pay in the future." ^[33]

The hunting expeditions in question involved leading nonresident hunters on moose and sheep hunts. ^[34] For non-Alaskans to hunt big game, they must submit the requisite forms to the Alaska Department of Fish and Game ("Department"). ^[35] One of the required forms is submitted to the Department prior to the hunt, while another report is due to the Department following the actual hunting trip, regardless of the hunter's success in shooting big game. ^[36] While Kinmon was convicted on charges concerning three separate hunting excursions, the court of appeals ultimately treated these excursions differently.

The first four charges Kinmon faced concerned a sheep hunt he guided in 2009 with an out-of-state hunter, John Maser. ^[37] One of these charges included going on the sheep hunt "without a valid (i.e., "previously purchas[ed]") nonresident sheep tag and/or harvest ticket" and other charges of knowingly failing to report the hunt and public records tampering. ^[38] Because of Kinmon's backdating of hunting tags, these convictions were upheld by the appellate court and were not altered by shifting interpretations of "previously purchas[ed]." ^[39]

However, the court of appeals found stark differences between Maser's hunt and Kinmon's other disputed hunts concerning grizzly bears and moose with the non-Alaskans Joseph Hahn and Shelley Ailts. ^[40] While Hahn and Kinmon completed the requisite paperwork before commencing the bear hunt, Hahn did not pay for the tag until "after the hunt was completed," per Kinmon's recommendation. ^[41] Three of the convictions "potentially hinged on a legal conclusion that a 'purchase' did not occur until after Hahn paid for the bear tag." ^[42] Kinmon pursued the same sort of post-payment scheme with the third hunting expedition, with his conviction for that hunt also turning on the correct interpretation of "previously purchas[ed]." ^[43]

While the trial court determined the "commonly understood meaning" of "previously purchasing" was "that a 'purchase' did not take place until money...