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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Leuthe v. State, Commercial Fisheries Entry Commission (3/30/01) sp-5379

Leuthe v. State, Commercial Fisheries Entry Commission (3/30/01) sp-5379

     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
                                 

CRAIG B. LEUTHE,              )
                              )    Supreme Court No. S-9343
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3HO-98-162 CI
                              )
STATE OF ALASKA, COMMERCIAL   )    O P I N I O N
FISHERIES ENTRY COMMISSION,   )
                              )    [No. 5379 - March 30, 2001]
             Appellee.        )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.


          Appearances:  C. Michael Hough, Homer, for
Appellant.  John T. Baker, Assistant Attorney General, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.


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


          FABE, Chief Justice.


I.   INTRODUCTION
          Craig Leuthe applied to the Alaska Commercial Fisheries
Entry Commission (CFEC) for an entry permit three years after the
1975 deadline.  CFEC accepts late applications if the applicant was
misadvised about eligibility prior to the 1975 deadline.  CFEC 
considered Leuthe's claim in several proceedings and rejected his
claim on several grounds, including the fact that Leuthe had not
been misadvised.  Leuthe appealed, and the superior court again
rejected his claim.  Because Leuthe has not met his burden of
showing that he was misadvised about his eligibility, we affirm the
superior court's decision.  
II.  FACTS AND PROCEEDINGS
          In 1973 the Alaska Legislature enacted the Limited
Fisheries Entry Act, AS 16.43.010-.990. [Fn. 1]  The Act
established the Commercial Fisheries Entry Commission, and charged
it with protecting distressed fisheries by granting a limited
number of access permits to commercial fishers. [Fn. 2]  Under the
Act, only persons who had already held a gear license prior to the
Act were eligible for permits. [Fn. 3]  CFEC was directed to rank
permit applicants based on the degree of hardship they would suffer
if excluded from the fishery; this in turn depended on how
financially reliant on the fishery an applicant had been in past
years. [Fn. 4]  CFEC established a complex point system for ranking
applicants, [Fn. 5] and for the fishery at issue in this case, set
up an initial application period of December 19, 1974 through March
18, 1975. [Fn. 6]  This deadline was later extended to April 18,
1975, with an additional extension to May 18, 1975 for good cause
shown. [Fn. 7]  The CFEC apparently granted the May 18 "good cause"
extension to every applicant who requested it.  It also made
considerable effort to notify eligible persons of the impending
change in the law, using mass mailings, individual phone calls, and
television, radio, and newspaper announcements. [Fn. 8]
          Craig Leuthe worked as a drift gill net fisher in Cook
Inlet beginning around 1966.  He held a gear license from 1967 to
1970, but made no recorded deliveries under those license numbers
for two of those years.  Leuthe and his partner sold their boat in
1970.
          In 1975 Leuthe worked as a teacher in Anchorage.  In
early May of that year, after the initial permit application
deadline, but before the May 18 "good cause extension" deadline, he
visited the Alaska Department of Fish and Game to inquire about an
entry permit.  A Fish and Game employee told him that he did not
qualify for enough points under CFEC's ranking system to receive a
permit, and advised him not to bother applying. Leuthe did not
apply, but later learned that friends with similar fishing
experience had received permits.  Therefore, in June of 1978, three
years after the deadline, Leuthe filed an application for a Cook
Inlet salmon drift gill net entry permit.  He initially claimed
nine points, but amended his application the next day to claim
eighteen.  Only persons who showed eligibility for at least sixteen
points could receive the Cook Inlet entry permits.
          CFEC initially denied the application, and Leuthe
requested a hearing.  After numerous delays, the hearing took place
in September of 1981.  Leuthe was represented by counsel and
presented testimony of a witness, as well as documentary evidence. 
At his request, the record was kept open through January 7, 1982 so
that Leuthe could submit additional evidence relating to his point
claims.
          Under CFEC's "misadvice policy," CFEC could accept
Leuthe's late application only if Leuthe showed that (1) he spoke
to the CFEC agent before the deadline, (2) he received bad advice
from the agent, and (3) he missed the deadline as a result of this
misadvice.  The hearing officer found Leuthe ineligible for this
"misadvice policy" exception to the deadline on several grounds. 
First, he concluded that April 18, 1975 was the applicable
deadline.  Leuthe was not eligible for the May deadline because he
made no showing of good cause -- in fact, the hearing officer
concluded, Leuthe's lateness was caused by his own lack of due
diligence.  Even if this problem were set aside, the hearing
officer reasoned, Leuthe would not be eligible for the "misadvice
policy" exception to the deadline because the agent who spoke to
Leuthe correctly advised him that he did not have enough points to
obtain an entry permit.  The hearing officer reviewed Leuthe's
point claims, and found him eligible for only nine of the sixteen
points necessary to obtain a permit.  He recommended that CFEC deny
Leuthe's application.
          CFEC notified Leuthe of this recommendation, and of his
right to respond and request an oral hearing before CFEC.  Leuthe
did not respond.
          In 1986 CFEC considered the hearing officer's
recommendation and issued a decision denying Leuthe's application.
CFEC concluded without discussion that Leuthe's application was
barred for late filing.  It explicitly declined to consider or
adopt the hearing officer's analysis of Leuthe's point claims.
          Leuthe petitioned for reconsideration of this decision,
listing specific grounds that he challenged, and CFEC agreed to
review the decision on those grounds.
          Twelve years later, in 1998, CFEC issued its decision on
reconsideration of Leuthe's claims.  The decision reviewed Leuthe's
case history in detail.  CFEC concluded that, because Leuthe had
not alleged any good cause, the applicable deadline was April 18,
1975.  Leuthe missed this deadline, it found, because of his own
lack of interest in fishing, and not because of any advice
received.  In addition, CFEC recalculated Leuthe's claimed points
and concluded that the agent's advice had been correct:  Leuthe was
ineligible for a permit.  CFEC again denied Leuthe's application.
          Leuthe appealed to the superior court.  Judge Harold M. 
Brown affirmed CFEC's denial of a permit, holding that because
Leuthe was substantively ineligible for a permit, his procedural
and timeliness arguments were moot.  Leuthe now appeals to this
court.
          Throughout the pendency of his application, Leuthe has
maintained an interim use permit for the Cook Inlet salmon drift
gill net fishery.
III. STANDARD OF REVIEW
          Because the superior court acted in this case as an
intermediate court of appeal, we will review the merits of the
underlying administrative decision independently, without deferring
to the superior court's decision. [Fn. 9]  We may affirm the
decision below on any ground supported by the record. [Fn. 10]
          When an agency's interpretation of statutory terms
"implicates agency expertise or the determination of fundamental
policies within the scope of the agency's statutory functions," we
apply the "reasonable basis" standard of review. [Fn. 11]  When the
agency's specialized knowledge and experience would not be
particularly probative of the meaning of the statute, we apply the
independent judgment standard and reach our own interpretation of
the statute. [Fn. 12]  When an agency applies its discretionary
power to waive or uphold a deadline, we will overturn its decision
only upon a showing of abuse of discretion. [Fn. 13]  Finally, we
apply the "substantial evidence" standard to agency findings of
fact. [Fn. 14] 
          We review issues of constitutional law under the
independent judgment standard. [Fn. 15]
IV.  DISCUSSION
          Because Leuthe filed his application three years after
the 1975 deadline, CFEC need not consider the application unless
Leuthe shows that he is eligible for the "misadvice" deadline
exception. [Fn. 16]  Leuthe's required factual showing for this
exception can be broken down into three elements: (1) that Leuthe
spoke to the CFEC agent prior to the deadline, [Fn. 17] (2) that
the CFEC agent misadvised him, and (3) that Leuthe missed the
deadline as a result of this misadvice.  It is Leuthe's burden to
show that the exception applies to his case; [Fn. 18] unless he
proves all elements of the misadvice exception, he cannot receive
a permit. 
          Leuthe has not met the second element of this burden
because he has not shown that the CFEC agent gave him misadvice. 
At no time since his 1981 hearing has Leuthe proven or even argued
why he should qualify for more than the nine points awarded by the
hearing officer.  Because Leuthe has not shown that the advice he
received in 1975 was wrong, his late application cannot be accepted
under the "misadvice" exception. Leuthe's ineligibility for a
license has been determined in proceedings which comported with due
process.  Therefore, we affirm the superior court and reject
Leuthe's application. [Fn. 19]
     A.   Leuthe Has Not Shown Eligibility for Enough Points to
Receive a Permit.

          Both the hearing officer and CFEC on reconsideration
considered Leuthe's point claims [Fn. 20] in detail.  Both
concluded that Leuthe is ineligible for an entry permit.  In his
recommendation, the hearing officer stated that Leuthe had
demonstrated eligibility for only nine of the sixteen points
necessary to receive a permit.  Although Leuthe claimed additional
points, the hearing officer found the claims unsupported by
evidence and applicable regulations.  But even if the additional
points had been granted, the hearing officer concluded that Leuthe
could receive at most fifteen points; he would still not be
eligible for an entry permit.  In its decision on reconsideration,
CFEC recalculated Leuthe's point claims and also concluded that he
was eligible for, at most, nine points.
          Leuthe has not directly argued before this court that
CFEC erred in determining his point claims. [Fn. 21]  In fact, at
no point since the initial hearing has Leuthe made arguments,
presented evidence, or suggested that evidence existed to show that
he is entitled to more than the nine points awarded by CFEC.  We
therefore conclude that Leuthe has not met his burden of showing
eligibility for an entry permit.
     B.   Leuthe Received Due Process in the Procedures Considering
His Point Claims.

          Leuthe raises a number of due process objections to the
proceedings below.  Fishery entry permit applicants are entitled to
due process in the adjudication of their claims. [Fn. 22]  However,
Leuthe has not demonstrated any violation of his right to due
process.
          1.   Leuthe has had adequate opportunity to prove his
point claims. 

          Leuthe has had ample opportunity to prove his point
claims over the past nineteen years.  He could have done so in
1982, when he was notified of his right to respond to the hearing
officer's recommendations, again in 1986 when he petitioned CFEC
for reconsideration, and yet a third time in 1999, when he appealed
CFEC's decision to the superior court.  Despite these
opportunities, he has never advanced any argument that he is
eligible for sufficient points to qualify for an entry permit and
was therefore misadvised by the CFEC agent in 1975.  Leuthe argues
that CFEC did not afford him due process because the
"[c]ommissioners refused [to] consider such point issues except to
determine whether Mr. Leuthe was misadvised by an agent of CFEC." 
He claims that due process requires a separate hearing on point
claims after the timeliness of his application has been determined. 
However, calculation of the point claims was a necessary step in
resolving the misadvice question.  Both the hearing officer and
CFEC on reconsideration fully considered the claims as part of that
inquiry.  Leuthe does not explain, nor can we discern, any reason
why due process should require separate hearings on logically
intertwined issues. [Fn. 23]  We find no due process violation in
CFEC's treatment of Leuthe's point claims. [Fn. 24]
          2.   Leuthe has not shown that changes in the law
affected his point claims.

          While CFEC's 1986 decision on the hearing officer's
recommendation was pending, we issued a series of decisions that
prompted significant changes in CFEC regulations governing point
claims. [Fn. 25]  Leuthe claims that he advanced new arguments in
light of these changes, but was denied a hearing.  This allegation,
if substantiated, might support remand for a new hearing. [Fn. 26] 
However, Leuthe neither explains any new point claims, nor
documents his alleged communications with CFEC regarding the new
claims.  The record before us shows no sign of such claims; CFEC's
seemingly exhaustive list of all communications with Leuthe does
not indicate that Leuthe advanced any new arguments in light of
changes in the law, or that CFEC denied a hearing to consider such
arguments. Moreover, it appears that CFEC independently reviewed
all pending cases at the time of the changes, and found no reason
to change its assessment of Leuthe's claims.  Because this
allegation of due process violation is unsupported by the record or
any detailed argument, we reject it.
          3.   CFEC's proposal to supplement the record did not
violate due process.

          Five months after CFEC submitted its certified record to
the superior court, CFEC moved to supplement the record with new
documentary evidence.  The superior court never ruled on this
motion, and CFEC's new documents were not admitted as evidence in
this case.  Leuthe raises numerous arguments why the documents
should not be admissible.  Because they were never admitted, we
need not consider this issue.
V.   CONCLUSION
          Because Leuthe has not shown that he was misadvised about
his eligibility for a permit, despite procedurally adequate
opportunities for him to make this showing, we reject his appeal
and AFFIRM the decision of the superior court.


                            FOOTNOTES


Footnote 1:

     See Vik v. Commercial Fisheries Entry Comm'n, 636 P.2d 597,
598-99 (Alaska 1981).


Footnote 2:

     See AS 16.42.020; AS 16.43.240.


Footnote 3:

     See AS 16.43.260(a).  Later cases and regulatory changes
amended this requirement.  See, e.g., Isakson v. Rickey, 550 P.2d
359 (Alaska 1976); State, Commercial Fisheries Entry Comm'n v.
Templeton, 598 P.2d 77, 80-81 (Alaska 1979).  These changes do not
affect Leuthe's case.  See Part IV.B.2, below.


Footnote 4:

     See AS 16.43.250.


Footnote 5:

     See AS 16.43.260(b); 20 AAC 05.600-.804 (1974).


Footnote 6:

     See 20 AAC 05.510(a).


Footnote 7:

     See 20 AAC 05.510(e).


Footnote 8:

     See Wickersham v. State, Commercial Fisheries Entry Comm'n,
680 P.2d 1135, 1143-45 (Alaska 1984).


Footnote 9:

     See Usibelli Coal Mine, Inc. v. State, Dep't of Natural
Resources, 921 P.2d 1134, 1141 (Alaska 1996).


Footnote 10:

     See Mackie v. Chizmar, 965 P.2d 1202, 1207 n.4 (Alaska 1998).


Footnote 11:

     Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175
(Alaska 1986).


Footnote 12:

     See id.


Footnote 13:

     See Forquer v. State, Commercial Fisheries Entry Comm'n, 677
P.2d 1236, 1244 (Alaska 1984).


Footnote 14:

     See Jones v. State, Commercial Fisheries Entry Comm'n, 649
P.2d 247, 249 n.4 (Alaska 1982).


Footnote 15:

     See Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).


Footnote 16:

     Under the "misadvice or lost in the mail" policy, CFEC accepts
late entry permit applications only upon a showing that the
applicant filed late because of misadvice received from a CFEC
agent, or because the application was lost in the mail.  We
discussed this policy in Estate of Miner v. State, Commercial
Fisheries Entry Commission, 635 P.2d 827 (Alaska 1981) (rejecting
equal protection and due process challenges to the policy as
applied to deny the late application of a mentally ill applicant)
and Wickersham v. State, Commercial Fisheries Entry Commission, 680
P.2d 1135, 1140 (Alaska 1984) (rejecting statutory challenge to the
policy because appellants lacked standing).  See also Vik v. State,
Commercial Fisheries Entry Comm'n, 636 P.2d 597, 600 (Alaska 1981). 
The "lost in the mail" prong of the policy is not at issue in this
case; Leuthe has not claimed that his application was lost in the
mail.


Footnote 17:

     Although the hearing officer initially concluded that the Fish
and Game employee who advised Leuthe was not an agent of CFEC, CFEC
no longer advances this argument and it is not a part of this
appeal. 


Footnote 18:

     See 20 AAC 05.520(a) ("Every applicant shall have the burden
of establishing his qualifications for an entry permit."); 20 AAC
05.1820(d) ("The applicant or other party shall bear the burden of
proving by a preponderance of the evidence that a determination of
the commission is erroneous.").


Footnote 19:

     We reach this conclusion on grounds that Leuthe has not met
his burden of proving misadvice.  Therefore, we do not reach the
question of what deadline should apply to his 1975 conversation
with the CFEC agent.

          Leuthe argues that his 1978 application should be
considered timely because he spoke to the CFEC agent prior to the
May 18, 1975 "good cause" deadline.  As he points out, CFEC in its
briefing for an unpublished superior court case, Wassillie v.
Adasiak, 3AN-75-506 Civ., conceded that it never held any
applicants to the April 18 deadline, but instead applied the May 18
deadline to all applicants without requiring a good cause showing. 
This argument is not without merit.  However, no matter when Leuthe
spoke to the agent, he cannot qualify for the misadvice exception
without showing misadvice.  Because we do not reach the issue of
timeliness, we also need not address the estoppel and equal
protection arguments advanced by Leuthe regarding his timeliness
claims.


Footnote 20:

     Leuthe's "point claims" are his claims that he had enough
points under CFEC's point system to qualify for an entry permit.


Footnote 21:

     Leuthe implied before the superior court and again before this
court that the point claims were part of his appeal.  However, he
never discussed the claims themselves. Given this cursory
treatment, we cannot consider the claims as part of this appeal. 
See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska
1991) ("where an argument is given only cursory statement in the
argument portion of a brief, the point will not be considered on
appeal"); see also Nenana City School District v. Coghill, 898 P.2d
929, 934 (Alaska 1995) (issue on appeal from administrative agency
waived or abandoned when inadequately briefed before superior
court).


Footnote 22:

     See Wickersham v. State, Commercial Fisheries Entry Comm'n,
680 P.2d 1135, 1144 (Alaska 1984).  The due process entitlement in
CFEC hearings is subject to

          the exception that one need not hold a hearing
if there is nothing to hold a hearing about . . . .  Thus, if an
application is rejected because it is outside valid time limits and
this lateness appears on the face of the application and is not
contested by the applicant, then  there would be no substantial and
material issue which could be resolved at a hearing, and thus no
need to hold the hearing at all.

Miner, 635 P.2d at 834.


Footnote 23:

     In his reply brief, Leuthe argues that CFEC on reconsideration
should not have considered his point claims, because he had asked
for reconsideration of the timeliness issue only.  Because this
argument was raised for the first time in a reply brief before this
court, it is waived.  See Conam Alaska v. Bell Lavalin, Inc., 842
P.2d 148, 158 (Alaska 1992); Alaska R. App. P. 212(c)(3).  We note,
however, that because of the misadvice policy, reconsideration of
timeliness necessarily included reconsideration of Leuthe's points
eligibility.


Footnote 24:

     Leuthe also argues in his reply brief that all other late
applicants were allowed a hearing on their point claims after the
timing issue was resolved.  Although Leuthe made the same
unsupported factual assertion in the introduction of his opening
brief, the argument appears only in the reply brief.  Because the
issue is not argued in the opening brief and appears only in the
reply brief, it is waived.  See Conam, 842 P.2d at 158; Alaska R.
App. P. 212(c)(3).


Footnote 25:

     See 20 AAC 05.525-526, 20 AAC 05.630(b)(4) (regulations
governing point calculations for persons who held gear licenses in
partnership or who claimed alternative occupation points).


Footnote 26:

     See Cashen v. State, Commercial Fisheries Entry Comm'n, 686
P.2d 1219 (Alaska 1984) (requiring new hearings for fishery entry
permit applicants based on changes in the law).