COMPTON, Justice, with whom RABINOWITZ, Chief Justice, joins, dissenting.

I disagree with the opinion of the court because it ignores legislative intent and basic principles of statutory construction, condones inaction by the Board of Fish and Game and disregards notions of fairness.

My principal objection to the court's opinion is that it contains only a cursory treatment of the legislative history behind AS 16.05.255(b). In adopting the subsistence legislation, the legislature intended to "establish subsistence use as a priority use of Alaska's fish and game resources and to recognize the needs, customs and traditions of Alaskan residents." Ch. 151, § 1, SLA 1978; see also Letter of Intent, Special Committee on Subsistence, 2 House Journal 1154-55 (1978). The priority afforded subsistence uses operates as follows: If there is a need to restrict the taking of fish and game in order to maintain sustained-yield or assure the continuance of subsistence uses, then "it is the intent of the Committee that sports or commercial use be restricted before subsistence use." 2 House Journal at 1155 (emphasis added). "The priority list is an attempt to insure that those with the most dependence upon the fish and game resources are the last to be restricted." Id. At this point in the analysis, subsistence users can hunt all year around. If unrestricted subsistence hunting threatens sustained-yield, the Board can restrict subsistence uses. Before restricting subsistence uses, the Board must make a finding that 1) maintenance of sustained-yield or subsistence uses is jeopardized and 2) restrictions on commercial and sport uses are inadequate to assure maintenance of game on a sustained-yield basis or continuation of subsistence uses.

The letter of intent further states that "there is no mechanism [under the current fish and game laws] for the promulgation of subsistence hunting regulations" except for the creation of subsistence hunting areas. Id. In reading the legislative history, it is clear that the legislature intended the statute to change the existing regulatory system which did not recognize the needs of subsistence users.

Therefore, it cannot be said that § 255(b) "merely established the priority of subsistence uses within the regulatory scheme." Section 255(b) explicitly permits subsistence hunting. It states that "[t]he Board of Game shall adopt regulations . . . permitting the taking of game for subsistence uses unless the board determines . . . that adoption of the regulations will jeopardize or interfere with the maintenance of game resources on a sustained-yield basis." (Emphasis added). Subsistence hunting is a legislatively-granted right, which is subject to regulation. Sport and commercial hunting, however, are only permitted by regulation. AS 16.05.920(a).

Moreover, the court ignores the basic rule of statutory construction that statutes in pari materia should be construed together. 2A C. Sands, Sutherland Statutory Construction § 51.01, at 449 (4th ed. 1973) (hereinafter C. Sands). Statutes are deemed to be in pari materia when they relate to the same purpose or thing or have the same purpose or object. See Morton v. Hammond, 604 P.2d 1, 3 n. 5 (Alaska 1979). If statutes are in pari materia and one section covers the subject in general terms and the other covers a part of the same subject in more detail, then the two statutes should be harmonized if possible. Id. at 3. If there is any conflict between the statutes, the more specific controls over the general. 2A C. Sands, supra, § 51.05, at 499.

AS 16.05.255(b) and 920(a) are in pari materia since both statutes address the subject of taking game. Section 920(a) speaks of taking game generally while § 255(b) speaks specifically of taking game for subsistence uses. The statutes are easily harmonized. Originally enacted in 1959, § 920(a) provides a general prohibition against hunting unless otherwise permitted. Enacted subsequent to § 920(a), § 255(b) provides an exception to this general rule by stating that the Board shall adopt regulations permitting and granting priority to subsistence uses. Thus, unregulated subsistence hunting is permissible under § 920(a) by virtue of the provisions in § 255(b). The court's rigid reading of the language in § 920(a) ignores the legislative intent to permit and prioritize subsistence uses.

My second objection to the court's opinion is that it implicitly approves of the Board's failure to promulgate separate subsistence regulations. The opinion concedes that the Board must adopt separate regulations governing subsistence use; however, it puts no teeth into this requirement. The court of appeals' creation of the subsistence defense was remedial both because it assures subsistence users the priority granted in § 255(b) and because it gives the Board an incentive to quickly correct its failure to adopt regulations. State v. Eluska, 698 P.2d 174, 180 nn. 8-9 (Alaska App. 1985).

In condemning the Board's passivity, the court of appeals analogized and relied upon United States Smelting, Refining and Mining Co. v. Local Boundary Commission, 489 P.2d 140 (Alaska 1971). In United States Smelting, the local boundary commission failed to comply with a statutory mandate to promulgate standards for changing local boundary lines. In holding that the commission lacked the power to recommend a Nome boundary change without having first developed such standards, this court stated that "[t]o do otherwise would be to condone the commission's nonobservance of a valid legislative prerequisite to the exercise of the commission's discretion in matters of local boundary changes." 489 P.2d at 142 (footnote omitted). Here, the Board can prohibit and regulate subsistence uses at certain times if it makes the requisite findings and specific regulations. Since the Board has not promulgated separate subsistence regulations or made specific findings, the state exceeds its power when it prosecutes subsistence users under general hunting regulations. The subsistence defense operates not only as a shield to the state's ultra vires act but also as a sword to continued Board inaction.

The court correctly states the proposition we apply from United States Smelting. The court's problem in fact is not, however, with our citation to this case, but rather with our initial premise which is that § 255(b) grants the right to subsistence hunt. Subsistence hunting is permitted unless prohibited. Under this premise, if the Board has not made specific findings or separate subsistence regulations, then subsistence hunters have the right to hunt. These hunters can hunt and "act as though they were not regulated", since they are not. Unlike subsistence hunters who have a statutory right to hunt, cities and boroughs, with few exceptions, do not have a statutory right to change their own boundaries. See Alaska Const. art. X, § 12; AS 29.68.010; 19 AAC 10.630-730.

We are not applying the principle from United States Smelting to justify subsistence hunters' actions but rather to invalidate the state's prosecution when the Board has failed to issue valid subsistence regulations. Absent subsistence regulations, the state has no authority to prosecute subsistence hunters. It is absurd to claim that subsistence hunters are regulated by general commercial and sport regulations which are clearly inapplicable. Under our premise, the principle from United States Smelting clearly applies. Of course, since the court's initial premise is that subsistence hunting, like sport and commercial hunting, is prohibited unless permitted, United States Smelting would not, as the court states, "Stand as authority for the action taken by the court of appeals" since there is no regulation permitting subsistence hunting. Unfortunately the court's initial premise is demonstrably wrong.

The court fears that a subsistence defense would result in "unregulated hunting." The court's decision does not resolve the problem of unregulated hunting since it condones the Board's failure to regulate. If the Board fulfilled its duty to enact separate regulations, then the problem of open season hunting disappears. The solution to this problem is obvious — the Board must make findings with respect to sustained yield and regulate accordingly.

Finally, the court's decision undermines basic principles of fairness. A general principle from constitutional and criminal law provides that a person cannot be penalized for violating a vague law. See Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743, 754 (1979); Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 1246, 39 L.Ed.2d 605, 611-12 (1974). "The root of the vagueness doctrine is a rough idea of fairness." Colton v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 590 (1972).

As indicated, § 255(b) grants the right to subsistence hunt and requires the Board to adopt separate regulations. The general hunting regulations are vague when read in light of § 255(b) since they do not cover subsistence uses and there are no subsistence regulations.

The doctrine of vagueness incorporates notions of fair notice and warning by requiring legislature to set reasonably clear guidelines for law enforcement officers, courts and the public. Smith v. Goguen, 415 U.S. at 572-73, 94 S.Ct. at 1246-47, 39 L.Ed.2d at 611-12; W. LaFave A. Scott, Criminal Law § 11, at 87-88 (1972). The courts will not punish a defendant when the legislature has given inadequate warning/notice of the prohibited conduct. See generally Dunn, 422 U.S. at 112, 99 S.Ct. at 2197, 60 L.Ed.2d at 754 (to ensure the legislature speaks with clarity when defining criminal conduct, courts must decline to impose punishment for acts not plainly proscribed). Here, the Board has not notified the public that sport and commercial regulations apply to subsistence uses. A subsistence user cannot tell when it is legal to take game for subsistence uses. Therefore, the court should not penalize subsistence users when the Board has not clearly prohibited subsistence hunting.

I conclude that since the Board has failed to adopt specific subsistence regulations, AS 16.05.255(b) permits "unregulated" subsistence hunting. By rejecting the subsistence use defense, the court deprives subsistence users of a means to vindicate their statutory right.