Allocation of Nonresident Guided Hunt Permits Upholds Alaska Constitutional Principles

Introduction

In Robert Cassell v. State of Alaska, Department of Fish & Game, Board of Game (Supreme Court No. S-18476, May 2, 2025), an Alaska resident hunter challenged the State’s longstanding “60/40” lottery system for Kodiak brown bear drawing permits. Under 5 AAC 92.061(a), at least 60% of the permits are reserved for Alaska residents, and up to 40% are allocated to nonresidents who, with very limited exceptions, must contract with a professional hunting guide. Dr. Cassell contended that (1) any reservation of permits for nonresidents violates the Alaska Constitution’s equal‐access clauses in article VIII, §§ 3, 15 and 17; and (2) allocation to guided nonresidents contradicts the State’s constitutional duty to manage wildlife for the maximum benefit of Alaskans under article VIII, §§ 1–2 and 4.

The Supreme Court of Alaska, in an opinion by Justice Borghesan, affirmed the superior court’s rejection of both challenges. The decision clarifies the relationship between residency‐based permit criteria, the equal‐access requirement, and the “maximum benefit” trust duties under article VIII.

Summary of the Judgment

The Court held that differential treatment of residents and nonresidents in permit application procedures does not, by itself, violate the Constitution’s equal‐access clauses.
Reserving up to 40% of Kodiak brown bear drawing permits for nonresidents guided by professionals does not confer an unconstitutional “special privilege” or exclusive right, because it does not exclude any Alaskan resident from hunting and imposes higher barriers on nonresidents.
The Court further ruled that the State’s consideration of economic and conservation benefits from guided nonresident hunts is permissible under article VIII’s “maximum benefit” and sustained‐yield provisions.
The judgment reaffirms that courts may review agency wildlife‐management policies only to ensure a “hard look” at relevant factors, not to substitute judicial policy preferences for legislative or agency judgments.

Analysis

Precedents Cited

Owsichek v. State, Guide Licensing & Control Bd. 763 P.2d 488 (Alaska 1988): struck down exclusive‐guide‐area permits as violating the common‐use clause.
McDowell v. State 785 P.2d 1 (Alaska 1989): held that residency cannot be used to conclusively exclude some Alaskans from subsistence hunting and fishing; introduced scrutiny for any rule excluding less than all potential users.
Shepherd v. State 897 P.2d 33 (Alaska 1995): upheld preference for residents over nonresidents in big‐game hunts, recognizing residents and nonresidents as not “similarly situated.”
Alaska Fish & Wildlife Conservation Fund v. State (AFWCF II) 347 P.3d 97 (Alaska 2015): confirmed that inconvenience alone does not trigger equal‐access scrutiny where no one is excluded from the user group.
Sagoonick v. State 503 P.3d 777 (Alaska 2022): reiterated that agency resource‐management choices require a “hard look” but courts do not second‐guess policy balancing.

Legal Reasoning

Equal Access: Article VIII reserves wildlife to the people for “common use” and prohibits “exclusive grants or special privileges.” The Court explained that a “user group” is defined by the resource (Kodiak brown bears) and the mode of use (sport hunting). Because both residents and nonresidents remain eligible to apply, no one is excluded from the group. Differential application rules — six applications per resident versus one per nonresident seasonally, plus the requirement that nonresidents hire a guide — do not create a constitutional “special privilege.”

Maximum Benefit and Sustained Yield: Article VIII instructs the State to manage resources for the “maximum benefit of its people” and to maintain them on a sustained‐yield basis, “subject to preferences among beneficial uses.” The Court rejected the argument that economic benefits cannot be considered for wildlife. It held that Sections 2, 3 and 4, read together, permit economic as well as aesthetic, cultural and consumptive uses. Guided nonresident hunts generate significant expenditures, guide‐related employment, user‐fee revenue and conservation benefits (higher success rates, selective harvest of older males), all of which the Board reasonably weighed.

The Court emphasized that judicial review of resource allocation focuses on whether the agency took a “hard look” at material facts — harvest data, population demographics, economic impact studies and administrative reports — rather than substituting judicial judgment for that of the Board of Game.

Impact

This decision clarifies several points of statewide significance:

State agencies may allocate a portion of hunting permits to nonresidents guided by professionals without running afoul of article VIII’s equal‐access provisions, so long as no class of Alaska residents is excluded.
Courts will uphold residency‐based preferences and permit conditions if they do not conclusively exclude Alaskans and if they reflect a reasoned policy balancing of conservation, economic and cultural objectives.
The “maximum benefit” mandate encompasses economic development, local livelihoods, user revenues and conservation enhancements, in addition to resident subsistence and recreational access.
Future challenges to wildlife‐management regulations will be measured against the “hard look” standard, with deference to agency expertise on biological and economic data.

Complex Concepts Simplified

Common Use Clause: A constitutional rule that treats fish and wildlife as held in trust for all citizens to use without exclusive monopolies.
Equal Access Clauses: Provisions forbidding special privileges or exclusive rights to fish and wildlife, and requiring uniform laws for similarly situated persons.
Resource User Group: A classification of users defined by what they hunt or fish and how they do it (e.g., sport hunters of Kodiak bears).
Sustained Yield Principle: The mandate that wildlife be managed so that populations remain healthy over the long term, balancing harvest with reproduction.
Maximum Benefit Duty: The obligation to manage resources to secure the greatest overall benefit for the people of Alaska, including economic, cultural and conservation values.
“Hard Look” Review: A judicial standard requiring courts to confirm that agencies considered all relevant data, without overriding policy decisions.

Conclusion

The Supreme Court’s opinion in Cassell v. State, Department of Fish & Game establishes that: (1) differential permit rules for residents and nonresidents do not by themselves violate equal access so long as no class of Alaska residents is excluded; (2) the reservation of up to 40% of Kodiak brown bear permits for guided nonresident hunts does not constitute an unconstitutional special privilege; and (3) the State may lawfully weigh economic and conservation benefits when allocating wildlife, under the article VIII duties of maximum benefit and sustained yield. This decision reinforces agency discretion in wildlife management, clarifies the scope of equal‐access protections and confirms that Alaska’s natural resources may be managed for both economic prosperity and ecological sustainability.