No Exclusive Rights to Harvest Wild Alaskan Shellfish

Alaska Trademark Shellfish, LLC, et. al. v. State of Alaska, 2004 Alas. LEXIS 51, (Alaska April 16, 2004).

Jason Savarese, J.D.

The Supreme Court of Alaska recently held that the Alaska Aquatic Farming Act and its operation and stock acquisition permit provisions did not give exclusive rights to geoduck farmers seeking to harvest and sell pre-permit, wild shellfish found on their farms.

Background
Alaska’s Aquatic Farming Act requires a permit in order to open an aquatic farm in the state, and gives the Alaska Department of Fish and Game (the Department) power over permit issuance decisions. The Department indicated to some potential shellfish farmers that those receiving permits would have the right to harvest all existing wild shellfish on their farm when the permits were issued. Alaska Trademark Shellfish, LLC, (ATS) and other farmers applied for aquatic farm permits from the Alaska Department of Fish and Game. ATS wanted to farm a type of slow-growing shellfish of considerable size, with high market value, known as geoducks. The Department considered the permit requests, and conditionally approved them, upon the farmers’ development of a way to differentiate between “common property” geoducks already in the farmers’ waters, and the new clams they intended to grow.

The concern expressed by the Department’s condition was that farmers might have a higher-than-necessary density of pre-permit geoducks on their farm, and that these should remain an Alaskan common property resource for “other uses.” ATS objected to the condition, and offered some alternatives. The Department rejected the alternatives, and relayed to ATS the general principles the Department would use in deciding ATS’s permit applications. These included limiting the use of pre-permit geoducks to “brood stock or for active cultivation.” These principles were later proposed and officially adopted as regulations in the Alaska Administrative Code.1 ATS claimed the condition attached to the clam permits would preclude any geoduck farming, and ATS demanded their applications be approved without condition. The Department denied their permit applications.

The Lawsuit
ATS appealed the Department’s decision to the superior court, putting forth two claims. First, ATS claimed that the Department was in violation of the Alaskan Aquatic Farming Act, by requiring those seeking to open a shellfish farm to maintain pre-permit shellfish as common use property. In addition, ATS asserted an estoppel charge against the Department, since it had assured potential farmers that once a permit was obtained, any existing, wild geoducks would be harvestable. The superior court upheld the Department’s decision.
Reasoning its decision on a constitutional basis, the superior court found that the “real question . . . is not whether the legislature intended to allow [stock acquisition permit] holders to harvest wild stock, but whether the legislature is permitted to do so.”2 The judge held that the state constitution’s “common use” clause barred ATS from having the exclusive right to harvest wild geoducks. ATS appealed the decision to the Supreme Court of Alaska.

The Supreme Court heard ATS’s arguments that the superior court had misapplied the common use clause in the Alaska Constitution and the public use doctrine in not allowing farmers to harvest existing geoduck stocks on the property. ATS claimed that wild geoducks would qualify as “farmed” shellfish under the statutory definition of “stock,” and that the stock acquisition permit statute allows the harvesting of wild geoducks to make such farming viable. ATS also reiterated its estoppel assertion against the Department.
Alaska Trademark Shellfish’s Arguments

ATS explained that the Aquatic Farming Act’s statutory definition of “stock” as those “intended for use…for…further growth or propagation”3 included wild geoducks, since some growth would occur between the time the permit was issued and the time of harvesting. The Court found this argument to be without merit, and stated that an actual intent to “use” the wild clams “for” further growth was required.4 Just allowing the clams to continue their natural growth is not enough to bring wild geoducks under the “stocks” statutory definition.
ATS argued that the stock acquisition permit statute commanded the Department to issue such a permit if “wild stock is necessary to meet the initial needs of farm or hatchery stock.”5 In their view, for commercial geoduck farming to succeed, wild, pre-permit geoducks would have to be harvested. This argument proved unpersuasive; as the Court pointed out the statute only addressed the farm’s need for stock, not for “general startup needs.”6

Thus, the statute did not give the farmers a right to harvest wild, existing geoducks on the property.
With regard to the estoppel claim, the Court declined to rule on the disputed meaning of statements made by the Department before permit applications were filed. The justices simply found, under a “totality of the circumstances test”, that estoppel was not appropriate. The Alaskan Court decided the case without considering the Alaska Constitution’s common use clause and the public use doctrine.

Conclusion
The Supreme Court of Alaska held that the Alaska Aquatic Farming Act does not give the Alaska Department of Fish and Game the power to authorize aquatic farmers to harvest and sell wild geoduck stocks growing on their property. The Court pointed out a section of the Aquatic Farming Act which specifically allows the Department’s commissioner to “attach conditions to a permit issued under this section that are necessary to protect natural fish and wildlife resources.”7 The Court went on to hold that the statute governing operation permits does not include an implied right to take wild shellfish. The Court did not reach the issue of whether the grant of such an exclusive right would violate the Alaska Constitution. The decision of the Department of Fish and Game to deny Alaska Trademark Shellfish’s geoduck farming permit application was upheld.

Endnotes
1. Alaska Admin. Code tit. 41, §240 (2003).
2. Alaska Trademark Shellfish, LLC, et. al. v. State of Alaska, et. al., 2004 Alas. LEXIS 51, at *8 (Alaska April 16, 2004).
3. Alaska Stat. § 16.40.199(8) (2003).
4. Alaska Trademark Shellfish, 2004 Alas. LEXIS 51, at *19.
5. Alaska Stat. § 16.40.120(f) (2003).
6. Alaska Trademark Shellfish, 2004 Alas. LEXIS 51, at *20
7. Alaska Stat. § 16.40.100(c) (2003).