Ellingson v. Lloyd, No. S-14884 (Alaska Dec. 26, 2014).
Kodiak Island is the second largest island in the United States, the home of the eponymous Kodiak Bear, and a major center of commercial fishing. Less well known are Kodiak Island’s bison. While Kodiak lacks indigenous bison, there are two large bison ranches on the Island. (Bison are preferred to cattle, the Alaska Supreme Court tells us, “because bison can better resist bear attacks.”)
For various reasons, fencing in the bison is impracticable, which means that the bison can stray. The Alaska Department of Fish and Game became concerned that these wandering bison—which it described as “feral”—could destroy habitat or spread disease to other animals.
Now, under an Alaska statute, the Department has the authority to establish how, when, and where game, “including a feral domestic animal,” may be hunted. It exercised this authority to amend its hunting regulations. The Department’s new regulation provided that if bison had wandered off a ranch and their owners hadn’t captured them within 48 hours, they qualified as “feral.” One of the Kodiak bison ranchers has now challenged this regulation, arguing that the Department of Fish and Game acted arbitrarily in deeming escaped bison “feral.”
The Alaska Supreme Court agrees with the bison rancher and rejects the Department’s position almost as harshly as the Dude rejects Walter’s legal observations (NSFW). It’s hard to see how a bison can be “feral” if a rancher lawfully owns it. Maybe bison could be considered feral if they’re allowed roam free for many years at a time, or if they had never been controlled in any way by a rancher, but the new regulation’s definition of “feral” bison is much broader than that. But the larger problem with the new regulation, says the court, is that the Department never even considered how its regulation was consistent with the normal use of the word “feral.” For that reason alone, the regulation is arbitrary and thus invalid.