Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices.

Suydam v. Alaska Commercial Fisheries Entry Commission (4/24/98), 957 P 2d 318


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

ANTRIL C. SUYDAM,             )
                              )    Supreme Court No. S-7683
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3KO-93-372 CI
                              )
STATE OF ALASKA, COMMERCIAL   )    O P I N I O N
FISHERIES ENTRY COMMISSION,   )
                              )    [No. 4977 - April 24, 1998]
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
                    Donald D. Hopwood, Judge.


          Appearances: Robert L. Richmond and Debra
Fitzgerald, Richmond & Quinn, Anchorage, for Appellant.  John T.
Baker, Assistant Attorney General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          FABE, Justice.


I.   INTRODUCTION
          At issue in this appeal is the decision of the Alaska
Commercial Fisheries Entry Commission denying Antril C. Suydam's
application for a Prince William Sound herring purse seine entry
permit.  Under the Alaska Limited Entry Act (Act), AS 16.43.010 et
seq., permit applicants are ranked under a point system according
to their economic dependence upon and past participation in the
fishery.  See 20 Alaska Administrative Code (AAC) 05.600 (1997). 
In this case, substantial evidence supported the Commission's
finding that Suydam was not domiciled in Kodiak in 1976, thus
justifying its denial of his Available Alternative Occupations
(AAO) point.  The Commission erred, however, in denying Suydam two
points for past participation in the fishery in 1976.  Because
Suydam was on the fishing grounds in a Herring Administrative Area
with the "appropriate vessel, gear, licenses . . . and with the
intention of taking the herring resource,"he qualified for two
past participation points as defined by 20 AAC 05.664(a)(3)(B).  We
therefore reverse the Commission's denial of Suydam's herring purse
seine entry permit application.
II.  FACTS AND PROCEEDINGS
          In 1977 Suydam applied for a permit to fish the Prince 
William Sound herring purse seine fishery.  Permits for this
fishery are issued under the Alaska Limited Entry Act.  See AS
16.43.010 et seq. [Fn. 1]  The Act establishes a point system to
rank permit applicants according to the extent of their economic
dependence upon and past participation in the fishery.  See AS
16.43.250(a); see also 20 AAC 05.630(a), (b) (detailing the ranking
system required by AS 16.43.250(a)).  In 1977 permits for the
Prince William Sound fishery were issued only to those applicants
who qualified for at least six out of a possible maximum eight
points.  See 20 AAC 05.666(1).  Four points were available for past
participation in the fishery during 1974-76; an applicant received
one point for each year of participation in 1974 and 1975 and two
points for participation in the fishery in 1976.  See 20 AAC
05.664(a).  An applicant could also qualify for four points for
economic dependence on the fishery.  Three of the four possible
economic dependence points were awarded for investment in a vessel
and gear by the qualification date -- one point for ownership of a
purse seine vessel and two points for ownership of a herring purse
seine.  See 20 AAC 05.664(b)(1).  The remaining point for economic
dependence on the fishery was awarded for the lack of "availability
of alternative occupations"(AAO) in the applicant's locale. [Fn.
2]  See 20 AAC 05.664(b)(2).
          After receiving Suydam's application, the Commission
notified him that he was only eligible for five of the nine points
[Fn. 3] he had claimed: one point for investment in a vessel; two
points for investment in a herring seine; one point for past
participation in 1974; and one AAO point.  Suydam requested a
hearing on the Commission's failure to award him points for past
participation in the fishery in 1975 and 1976.  A hearing was held
before hearing officer Ron Miller in November 1979. [Fn. 4] 
Because there remained a question as to where Suydam was domiciled
on the qualifying date in 1976, [Fn. 5] however, the Commission did
not rule on his application at that time. 
          In March 1983 Suydam submitted additional documentary
evidence to the hearing officer regarding his domicile in December
1976.  This evidence demonstrated that at all times relevant to
this appeal Suydam had an Alaska driver's license, Alaska car
registration, and Alaska voter registration and had been a member
of the Kodiak Elks Lodge.  Prior to 1972, Suydam and his family
lived in a house he owned in Kodiak.  In 1972 Suydam bought the
first of three houses that he would own in the Seattle, Washington
area.  At that time, Suydam moved his family from Kodiak to
Washington and they continued to live there after 1976. [Fn. 6] 
Suydam's daughter attended high school in Washington from 1972
until she graduated in 1974.
          Suydam contended that owning the homes in Washington did
not change his domicile because he moved there to oversee
construction of fishing vessels.  Suydam, however, obtained
Washington resident commercial fishing licenses from 1975 to 1978. 
His applications for these licenses stated that he had been a
resident of Washington since 1973.  Furthermore, Suydam deducted
his apartment rent in Kodiak as a business expense on his 1976 and
1977 federal income tax returns, a deduction that would not be
allowed if Kodiak were his domicile.  In addition, on his
Washington tax return, he deducted other property taxes and
interest from the purchase of residential property in Washington
that could not have properly been claimed on his Alaska tax return. 
Suydam also avoided paying capital gains taxes on the sale of his
Washington homes by declaring the properties to be his principal
places of residence.
          After reviewing the recording of the hearing and the
documentary record, hearing officer Frank Glass denied Suydam's
Prince William Sound fishery permit application in October 1991.
Glass found that Suydam was entitled to five points, one short of
the number required to obtain a permit.
          Glass awarded Suydam one point for past participation in
the fishery in 1975, concluding that his wife's medical emergency
constituted an unavoidable circumstance that excused Suydam's
absence from the fishery that year.  Glass, however, did not award
Suydam the two past participation points for 1976.  He found that
Suydam was at Columbia Bay while the season was closed, and that he
neither fished nor intended to fish during the opening at Green
Island due to a fishers' strike. [Fn. 7]
          Hearing officer Glass also found that Suydam was not
entitled to the previously classified AAO point because Suydam was
not domiciled in Kodiak on December 31, 1976, the qualifying date.
Glass concluded that Suydam became domiciled in Washington after he
moved his family there from Kodiak, and "Washington became the
center of their domestic life."
          Suydam appealed hearing officer Glass's decision to the
Commission for administrative review.  He claimed that the hearing
officer erred in: (1) determining his domicile for purposes of the
AAO point; (2) concluding that he was not entitled to receive past
participation points for 1976; and (3) violating his due process
rights by taking eight years to render a decision.  In July 1993
the Commission denied administrative review.  Suydam appealed this
decision to the superior court.  After briefing on the merits, the
superior court affirmed the hearing officer's decision.  Suydam
appeals.
III. DISCUSSION
     A.   The Commission Did Not Err in Deciding that Suydam Is Not
Entitled to One AAO Point.

          Suydam argues that the Commission had the burden of
proving the issue of domicile when deciding whether to revoke a
previously verified AAO point.  The State maintains that the
Commission retained authority to modify any point classification
prior to the issuance of a final decision on an individual
application, which, in Suydam's case, occurred in 1993.
          1.   The Commission is authorized to modify a point
classification prior to issuing a final decision.
     
          As a preliminary matter, Suydam has misconstrued the
regulatory framework of the Act in his characterization of the
Commission's decision as a "revocation proceeding."   This case
does not involve the revocation of a permit that had already been
issued.  Suydam sought administrative review of hearing officer
Glass's 1991 decision awarding Suydam only five of eight possible
points.  At that stage in the proceedings, the Commission was
empowered to "affirm, modify, or reverse the decision of the
hearing officer."  20 AAC 05.1845(h).  It was also authorized to
re-evaluate the merits of a prior determination at any time until
the time for reconsideration of a final decision had expired.  See
20 AAC 05.1845(i) (stating that Board's authority to reconsider
expires 30 days after delivery of decision to the applicant); see
also Moore v. State, Commercial Fisheries Entry Comm'n, 688 P.2d
582, 587 (Alaska 1984) (interpreting 20 AAC 05.850, as amended by
20 AAC 05.1845(i)).
          The Commission issued its final decision on July 19,
1993, denying review and affirming Glass's decision in all
respects, including the finding that Suydam did not qualify for an
AAO point.  Thirty days after the date of that decision and denial
of reconsideration the Commission lost the ability to reopen the
merits of Suydam's application.  Until that date, the Commission
retained the authority to revisit issues relevant to Suydam's point
claims, including his claim of domicile for the purpose of the AAO
point.  Because the Commission had issued no final decision
regarding Suydam's application, it acted properly in re-evaluating
his permit application.
          2.   The applicant bears the burden of proving each
point claimed.
               
          Determining the appropriate burden and deciding who bears
it are questions of law subject to this court's independent review. 
See K.N. v. State, 856 P.2d 468, 476 n.10 (Alaska 1993); see also
Sloan v. Jefferson, 758 P.2d 81, 83 (Alaska 1988).
          Suydam argues that the Commission had the burden of
proving by clear and convincing evidence that a previously awarded
AAO point should be revoked, and that it failed to meet this
standard.  The State responds that Suydam had the burden of
establishing his qualifications for each and every point he claimed
on his permit application.  We agree. [Fn. 8]
          "In limited entry proceedings, the applicant bears the
burden of establishing qualification for all claimed points." 
Lewis v. State, Commercial Fisheries Entry Comm'n, 892 P.2d 175,
183 (Alaska 1995). [Fn. 9]  Furthermore, that burden remains with
the applicant if the applicant requests an administrative hearing. 
The regulations are unambiguous: "[t]he applicant or other party
shall bear the burden of proving by a preponderance of the evidence
that a determination of the commission is erroneous."  20 AAC
05.1820(d).
          Suydam mistakenly relies on the burden of proof required
for a revocation proceeding under AS 16.43.960, in which the
Commission bears "the burden of proving by a preponderance of
evidence that a person or entity knowingly provided, assisted in
providing, or failed to correct false information."  20 AAC
05.1820(e).  Because the Commission had never granted Suydam a
Prince William Sound fishery permit and thus had not formally
awarded points that could be revoked, the burden of proof for a
revocation proceeding is inapplicable to the circumstances of the
present case. [Fn. 10]
          3.   The record contains substantial evidence supporting
the Commission's decision that Suydam was not domiciled in Kodiak
on the qualifying date.

          We review the Commission's factual findings under the
substantial evidence standard.  See Jones v. Commercial Fisheries
Entry Comm'n, 649 P.2d 247, 249 n.4 (Alaska 1982).  "Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."  Commercial Fisheries
Entry Comm'n v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991).
          Suydam argues that he was domiciled in Kodiak on the
qualifying date and that the Commission erred in finding otherwise. 
"A domiciliary must be physically present and have the subjective
intent to remain indefinitely."  Sheley v. Alaska Bar Ass'n, 620
P.2d 640, 644 n.24 (Alaska 1980) (citation omitted); see also
Kjarstad v. State, 703 P.2d 1167, 1171 (Alaska 1985) (applying the
test for domicile in the context of a limited entry permit
proceeding).  Thus, the question before us is whether on December
31, 1976, Suydam was living in Kodiak with the intention to remain
there indefinitely.  
          Suydam contends that "[w]hen a person . . . has more than
one dwelling place, his domicile is in the earlier dwelling place
unless the second dwelling place is his principal home." 
Restatement (Second) Conflict of Laws sec. 20 (1971).  The
Restatement
classifies a "principal home"as "that to which [a person] is more
closely related, or . . . that which is more nearly the center of
his domestic, social and civil life."  Id. at sec. 20 cmt. b(2).
          Hearing officer Glass concluded that Suydam became
domiciled in Washington after he moved his family there from
Kodiak, and "Washington became the center of their domestic life." 
After moving to Washington, Suydam was only physically present in
Kodiak when he was fishing.  The hearing officer found that
Suydam's "home was in Washington, and he rented part of a house in
Kodiak only for business purposes.  Although Mr. Suydam made an
effort to preserve a paper record consistent with a claimed
domicile in Kodiak, he intended to make his home in Washington."
          Suydam argues that the Commission did not place
sufficient weight on other parts of the record, including his own
declarations as to what he considered to be his home.  Essentially,
Suydam asks this court to reweigh the evidence on appeal.  Our role
is not to reweigh the evidence or choose between conflicting
inferences, but to determine whether substantial evidence exists to
support the Commission's finding.  See Interior Paint Co. v.
Rodgers, 522 P.2d 164, 170 (Alaska 1974).  If the evidence is
conflicting, it must be viewed in favor of the agency's findings,
even if we might have taken a contrary view of the facts.  See
Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487,
490 (Alaska 1980).  Additionally, we have held that the Commission
is entitled to be skeptical of an applicant's testimony in light of
other circumstantial evidence.  "Declarations of domicile
advantageous to the declarant are to be viewed with suspicion and
accorded little weight."  Kjarstad, 703 P.2d at 1171 (citations
omitted).
          Based on Suydam's home-ownership in Washington, his
mortgages on his principal residences in Washington, his deduction
of his Kodiak rent as a business expense, and his applications for
Washington state resident fishing permits, we find that substantial
evidence in the record supports the Commission's finding that
Suydam was not domiciled in Kodiak and therefore was ineligible for
an AAO point.
     B.   Did the Commission Err in Denying Suydam Past
Participation Points for 1976?

          "An agency's interpretation of its own regulation
presents a question of law."  Rose v. Commercial Fisheries Entry
Comm'n, 647 P.2d 154, 161 (Alaska 1982) (citation omitted).  Where
a question of law implicates the agency's expertise as to complex
matters or as to the formulation of fundamental policy, the court
should defer to the agency decision as long as it has a reasonable
basis.  See id. 
          We have previously held that because the Commission's
interpretation of the Act and the regulations promulgated
thereunder "entails both administrative expertise and formulation
of fundamental policy . . . this process will not be lightly
interfered with by this court."  Id. (internal quotations omitted). 
Therefore, we review the Commission's interpretation of a
regulation regarding past participation in a fishery under the
reasonable basis standard.  
          Once we have resolved the interpretation of the
regulations, we review the Commission's factual findings under the
substantial evidence standard.  See Jones v. Commercial Fisheries
Entry Comm'n, 649 P.2d 247, 249 n.4 (Alaska 1982).
          1.   The definition of "past participation"
          Suydam presents a two-pronged argument that the
Commission erred in denying him past participation points for 1976. 
Initially he asserts that he satisfied the criteria of 20 AAC
05.664(a)(3)(B) and therefore met the regulatory definition of past
participation. [Fn. 11]  Alternatively, he claims that the
Commission abused its discretion by ruling that the Green Island
fisher strike did not constitute an "unavoidable circumstance"
meriting the award of past participation points under 20 AAC
05.664(a)(2).  The State argues that Suydam neither harvested
herring in 1976 nor was present on a fishing ground at an opening
with the intention to fish and, therefore, failed the test for past
participation.  The State further argues that Suydam doesn't
qualify under the unavoidable circumstances exception because he
voluntarily chose not to fish during the strike.
          We need only address Suydam's contention that he
satisfied the conditions of 20 AAC 05.664(a)(2).  Hearing officer
Glass found that Suydam did not meet the definition of past
participation for 1976 because he neither fished nor intended to
fish during the opening at Green Island due to his observance of a
fishers' strike.  Glass's conclusion, however, was based upon an
unreasonable interpretation of 20 AAC 05.664(a)(3)(B).
          The regulation defines past participation as either the
commercial taking of herring or "being on the fishing grounds [in
herring administrative areas], with the appropriate vessel, gear,
licenses, and interim-use permit with the intention of taking the
herring resource during the time the season was open and the
herring resource was harvested."  20 AAC 05.664(a)(3)(B) (emphasis
added).  The Commission interpreted "intention of taking the
herring resource"to require an "attempt"to harvest herring.  It
determined that Suydam did not have the requisite intent to fish by
virtue of the fact that he did not attempt to set his lines during
the strike.  We conclude that the Commission erred because the
regulation does not require a fisher to actually harvest herring or
to even make such an attempt; it merely requires presence on the
grounds coupled with an intention to take the resource.
          In enacting the point system for Prince William Sound,
the Commission recognized the "unusual nature"of the herring purse
seine fisheries, noting that "they 'may or may not open to
participation depending on the presence or absence of certain
amounts of herring being simultaneously present and measurable by
the Alaska Department of Fish and Game management personnel.'" 
Lewis v. State, Commercial Fisheries Entry Comm'n, 892 P.2d 175,
177 (Alaska 1995) (quoting Findings of the Commercial Fisheries
Entry Commission Regarding the Priority Classification System
Proposed for the Prince William Sound, Cook Inlet, and Southeastern
Herring Purse Seine Fishery (February 17, 1977)).  Moreover, the
Commission noted that 
          [i]n these fisheries an opening may be
measured in hours or minutes, and it is therefore not uncommon for
an operator to be unable to set his net before the period closes. 
  

Id. (emphasis added).  Therefore, it is unreasonable for the
Commission to assess a fisher's subjective intent to fish based
upon whether or not the fisher "attempted to harvest."  Rather, a
reasonable interpretation of the definition must correlate
"intention"with the fisher's purpose behind his or her arrival at
the grounds during an opening.  It is plausible, given the nature
of the fishery, that a fisher may go to great lengths and expense
to be present at the fishing grounds with every intention of
fishing upon arrival, only to be denied the opportunity to set the
lines.  The regulation cannot be reasonably interpreted to deny a
fisher in that predicament his or her participation points.  
          2.   Suydam's past participation in 1976
          The record before us does not contain substantial
evidence to support the Commission's finding that Suydam lacked the
requisite intent to fish while at Green Island.  The evidence
demonstrates that Suydam spent the entire season moving from one
fishing area to another to fulfill his intention.  He started at
Columbia Bay which never opened.  He then proceeded to Green
Island, and after waiting out the strike for a week, sent one of
his boats to Cook Inlet.  Suydam spent $2,500 for fuel to get his
two boats to the fishing grounds and to feed his crew.  Had he not
intended to fish, he would not have gone to the expense of
organizing a crew and setting out for the fishing grounds, much
less remained at Green Island for over a week in anticipation that
the strike would abate.
          Suydam made a significant financial commitment to
participate in the herring purse seine fishery in 1976.  He was at
Green Island with the appropriate vessel, gear, licenses, and
interim-use permit and with the intention of taking the herring
resource during the time the season was open, and therefore
satisfied the requirements of 20 AAC 05.664(a)(3)(B).  The
Commission incorrectly interpreted and applied the regulation
governing past participation.  When the regulation is interpreted
properly, without an attempt requirement, it is clear that the
evidence does not support the Commission's finding that Suydam
lacked an intent to fish.  We conclude that Suydam met his burden
of demonstrating his past participation in 1976.  The Commission
thus erred in denying Suydam two points.  These additional points
bring Suydam's Prince William Sound point total to seven points,
one greater than the minimum required under 20 AAC 05.666(1).  We
therefore hold that Suydam is entitled to a Prince William Sound
herring purse seine limited entry permit. [Fn. 12]
IV.  CONCLUSION  
          We REVERSE the Commission's decision regarding Suydam's
Prince William Sound entry permit application.  Although
substantial evidence supported the Commission's denial of Suydam's
AAO point, the Commission unreasonably interpreted and applied
20 AAC 05.664(a)(3)(B) when it denied Suydam two points for past
participation in 1976.  Because Suydam was on the fishing grounds
in a Herring Administrative Area with the appropriate vessel, gear,
licenses, interim permit, and requisite intent to fish for herring,
he qualified for two "past participation"points as defined by
regulation.  As a result, Suydam's points total more than the six
points required for the issuance of a Prince William Sound herring
purse seine entry permit.  We therefore REVERSE the Commission and
REMAND with directions to issue Suydam a Prince William Sound
herring purse seine permit.


                            FOOTNOTES


Footnote 1:

     The Act promotes "the conservation and the sustained yield
management of Alaska's fishery resource and the economic health and
stability of commercial fishing in Alaska by regulating and
controlling entry into the commercial fisheries in the public
interest and without unjust discrimination."  AS 16.43.010(a).  We
have detailed the history and objectives of the limited entry
program in prior cases.  See Johns v. Commercial Fisheries Entry
Comm'n, 758 P.2d 1256, 1263 (Alaska 1988); see also Rose v.
Commercial Fisheries Entry Comm'n, 647 P.2d 154, 155-56 (Alaska
1982); Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d
1255, 1258-61 (Alaska 1980); Isakson v. Rickey, 550 P.2d 359, 360-
61, 364-65 (Alaska 1976).


Footnote 2:

     Points are awarded to those applicants who have the least
opportunity to work in non-fishery-related jobs.  See Kjarstad v.
State, 703 P.2d 1167, 1168 (Alaska 1985).  "The point system
assumes that applicants who live in less populated areas have fewer
alternative occupations available to them than [do] applicants from
larger cities."  Id.  "An applicant is entitled to one point if his
or her domicile is located more than 30 road miles from (i) the
boundary of a 'place' with a population of 20,000 or more as of
April 1, 1970, and (ii) an 'urbanized area' as of April 1, 1970." 
20 AAC 05.664(b)(2)(A).  "'Urbanized area' means a city of 50,000
or more and its surrounding areas. . . ."  20 AAC 05.664(b)(2)(E). 


Footnote 3:

     Suydam mistakenly claimed two points for participation in
1975, when only one point was available; a maximum of eight points
could be claimed on the application.


Footnote 4:

     Although the Commission originally scheduled the hearing for
December 1977, Suydam requested three times that the hearing be
rescheduled before it was finally held in November 1979.


Footnote 5:

     On the same day that it conducted the hearing on Suydam's
Prince William Sound permit application, the Commission conducted
a second hearing to determine whether to revoke Suydam's Kodiak
salmon fishery permit, based on an allegation that he had knowingly
supplied false information regarding his domicile in Kodiak in
December 1972 in an attempt to obtain that permit.  In 1981 the
Commission ruled in Suydam's favor on the 1972 domicile issue,
finding that there was insufficient proof that Suydam was not
domiciled in Kodiak in December 1972, the relevant date for the
award of AAO points for his Kodiak salmon fishery permit.  At the
same time, the hearing officer offered Suydam the right to a
hearing regarding his domicile in Kodiak as of December 1976, the
relevant date for the award of an AAO point for the Prince William
Sound fishery permit.  Suydam elected to submit additional evidence
on this issue, in lieu of requesting a formal hearing.


Footnote 6:

     In 1974 Suydam sold his Kodiak home and thereafter rented part
of a house in Kodiak.


Footnote 7:

     It is apparent from the record that Suydam did not participate
in the strike, but merely waited for it to abate so that he could
fish.  In an affidavit submitted to the hearing officer, Suydam
explained:

          I was physically on the herring grounds for
the 1976 season with my own vessel and gear.  I was at Columbia
Bay, but due to lack of herring the season was not opened.  I then
took in the Green Island opening, but due to the herring
fisherman's strike, did not fish when it opened.  After waiting
another week and with a poor showing of herring reported from
surveys, I decided it would not be profitable to stay and suspected
that the season would not be opened at all.


Footnote 8:

     We note that resolution of the burden of proof issue is not
essential to the outcome of the instant case.  Although the burden
of proof lay with Suydam, hearing officer Glass erroneously
ascribed the burden to the Commission.  He then determined that the
Commission had satisfied the requirements of its burden, finding
that Suydam was not domiciled in Kodiak.  As we explain below,
regardless of who bore the burden of proof on the issue, the record
contains substantial evidence justifying the Commission's finding
that Suydam was not a Kodiak domiciliary on December 31, 1976.


Footnote 9:

     20 AAC 05.520(a) provides that "[e]very applicant shall have
the burden of establishing his qualifications for an entry permit." 
This regulation derives from AS 16.43.260(c), which states in
relevant part:

          When an applicant is unable to establish
qualifications for an entry permit by submitting the specific
verified evidence required in the application by the commission,
the applicant may request and obtain an administrative adjudication
of the application according to procedures established in AS
16.43.110(b).  At the hearing the applicant may present alternative
evidence of qualifications for an entry permit.


Footnote 10:

     Suydam attempts to bolster his argument with previous
Commission decisions.  Suydam points to a statement by a Commission
hearing officer in Beckstrand, CFEC File No. 87-0104-A (Sept. 17,
1987), that the Commission bears the burden of proving by a
preponderance of evidence that a point previously verified should
be revoked, and he relies on Stroup, CFEC File No. 89-0096-A (May
5, 1989), for the same proposition. 

          We are not bound by agency decisions when reviewing
questions of law.  Instead, we "adopt the rule of law that is most
persuasive in light of precedent, reason, and policy."  Guin v. Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979).  Because the hearing
officers' comments in Beckstrand and Stroup are inconsistent with
the burden of proof established under 20 AAC 05.520(a), requiring
each applicant to establish his or her qualifications for all
points claimed on an application for an entry permit, neither
agency decision controls here.


Footnote 11:

     20 AAC 05.664(a)(3) defines past participation as:

          (A)  the commercial taking of the herring
resource in Herring Administrative Areas A-1, E-1 or H with a
herring purse seine, interim-use permit and appropriate licenses;
or

          (B)  being on the fishing grounds in Herring
Administrative Areas A-1, E-1 or H, with the appropriate vessel,
gear, licenses, and interim-use permit with the intention of taking
the herring resource during the time the season was open and the
herring resource was harvested.


Footnote 12:

     Because our holding resolves the case in Suydam's favor, we do
not address Suydam's due process claims or the merits of Suydam's
challenge to the Commission's interpretation of "unavoidable
circumstances"under 20 AAC 05.664(a)(2).