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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Basargin v State Commercial Fisheries Entry Commision (09/28/2001) sp-5478

Basargin v State Commercial Fisheries Entry Commision (09/28/2001) sp-5478

     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
                                 


THE ESTATE OF VASILY A.       )
BASARGIN,                     )    Supreme Court No. S-9786
                              )
             Appellant,       )    Superior Court No.
                              )    3HO-98-212 CI
     v.                       )
                              )    O P I N I O N
STATE OF ALASKA, COMMERCIAL   )
FISHERIES ENTRY COMMISSION,   )    [No. 5478 - September 28, 2001]
                              )
             Appellee.        )
______________________________)



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


          Appearances:  C. Michael Hough, Homer, for
Appellant.  Sabrina E. L. Fernandez, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.  


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


          EASTAUGH, Justice.


          The estate of Vasily Basargin, an applicant for a
commercial fisheries entry permit for the Prince William Sound
gillnet fishery, claims that the Alaska Commercial Fisheries Entry
Commission (CFEC) erroneously calculated his points.  The estate
argues that the CFEC erred by failing to grant him additional
points for "unavoidable circumstances,"for vessel and gear
investment, and for income dependence.  The estate also argues that
Basargin was not given a meaningful hearing opportunity.  
          We reject each of these arguments for the reasons
discussed in Superior Court Judge Harold M. Brown's decision which
affirmed the administrative decision of the CFEC.  
          In our view, Basargin was given a meaningful hearing
opportunity to present evidence on the applicable issues in
dispute.  We conclude that Basargin's English language limitations
and the cultural barriers he experienced as a member of an Old
Believer Russian Orthodox community did not entitle him to
"unavoidable circumstances"points.  We also conclude that even if
the additional points Basargin sought for vessel and gear
investment had been awarded him, he would not have had the eighteen
points necessary to be eligible for a permit.  We therefore
conclude that any possible error in calculating points for this
point category is harmless.  Finally, we conclude that substantial
evidence supports the CFEC's determination that Basargin was not
entitled to income dependence points for 1971 with respect to this
permit application.  Our reasons for reaching these conclusions are
well expressed by the superior court's decision.  
          We AFFIRM.  We attach Judge Brown's decision as an
appendix and incorporate it by reference.  

                         A P P E N D I X*


          IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

                 THIRD JUDICIAL DISTRICT AT KENAI


THE ESTATE OF VASILY A.       )
BASARGIN,                     )
                              )    
               Appellant,     )  
                              )    
     v.                       )    
                              )
STATE OF ALASKA, COMMERCIAL   )
FISHERIES ENTRY COMMISSION,   )
                              )
               Appellee.      )    Case No. 3HO-98-212 CI
______________________________)


                  MEMORANDUM DECISION AND ORDER

     This appeal arises out of the Commercial Fisheries Entry
Commission's (CFEC) denial of a limited entry permit for the Prince
William Sound salmon drift gillnet fishery to the estate of Vasily
A. Basargin (Vasily Basargin and his estate are hereinafter
collectively referred to as Basargin).  The court affirms the
CFEC's decision.  
                            BACKGROUND
     Basargin applied for a Prince William Sound drift gillnet
entry permit on March 7, 1977.  Basargin's application was governed
by regulations adopted in 1974 that rank individual applicants on
a point system according to their relative dependence on the
fishery as of the January 1, 1973 qualification date.  Eighteen
points are necessary for the issuance of a permit.  
     Basargin originally claimed 22 points on his application:  1
point for crew participation in 1972; 6 points for ownership of a
vessel; 4 points for availability of alternative occupations; 3
points for active participation as a gear license holder in 1972;
and 6 points for 1972 income dependence.  On April 18, 1977, the
CFEC staff classified Basargin's application with 3 points:  1
point for 1972 crew participation, and 2 points for availability of
alternative occupations.  
     Basargin requested and was granted an administrative hearing
on September 13, 1977.  Basargin appeared at the hearing with
counsel.  A deadline of December 13, 1977, was set for the
presentation of further evidence in support of Basargin's claims. 
Some further evidence was presented to the CFEC on December 12,
1977, but a request for an extension of the deadline so that
further evidence could be entered was denied.  
     On November 10, 1982, the CFEC hearing officer issued his
decision recommending denial of Basargin's application.  In
addition to the 3 points initially awarded to Basargin, the hearing
officer awarded 6 points for income dependence in 1972 and 4 points
for investment in a vessel.  The officer rejected Basargin's claims
for 1972 active and consistent participation and his claim for 1971
income dependence.  This left Basargin with only 13 of the 18
points necessary for issuance of a permit.  
     Basargin then requested an oral presentation before the
commissioners, as well as a request to present additional evidence. 
Although the CFEC declined to hear additional evidence on certain
issues that it determined were not relevant, it did agree to hear
additional evidence regarding Basargin's ownership of vessels and
gear and his 1972 participation claims.  
     The CFEC conducted the oral presentation on March 23, 1984. 
Present were Basargin, his attorney, and his son, Faddey.  Because
required commission members were not present at this presentation,
a second presentation was conducted on October 10, 1984.  
     Due to heavy caseload and other concerns beyond the scope of
this appeal, the CFEC did not issue its final commission decision
on administrative appeal until August 3, 1998.  That decision
awarded an additional 2 points for availability of alternative
occupations, but reduced to 3 points Basargin's award for vessel
and gear ownership.  Thus, Basargin currently has been awarded 14
of the 18 points necessary for issuance of a permit.  
     Basargin requested reconsideration of the CFEC's final
decision, but reconsideration was denied.  This timely appeal
followed.  
                       ASSIGNMENTS OF ERROR
     Basargin's statement of points on appeal lists multiple
assignments of error, but the court will only consider on appeal
those points that are actually argued in an appellant's brief.  See
Johnson v. Johnson, 836 P.2d 930 (Alaska 1992).  Thus, for purposes
of this appeal, Basargin has assigned as error that (1) the CFEC
denied Basargin meaningful hearings; (2) the CFEC improperly denied
Basargin points on his participation claim; (3) the CFEC improperly
denied Basargin points on his vessel and gear claims; and (4) the
CFEC improperly denied Basargin points on his economic dependence
claims.  
                        STANDARD OF REVIEW
     The superior court applies four principal standards of review
in administrative appeals:  The "substantial evidence"test is used
for questions of fact.  The "reasonable basis"test is used for
questions of law involving agency expertise.  The "substitution of
judgment"test is used for questions of law where no expertise is
involved.  The "reasonable and not arbitrary"test is used for
review of administrative regulations.  Romann v. State, Dept. of
Transp. and Public Facilities, 991 P.2d 186 (Alaska 1999).
                            DISCUSSION
     1.   Due Process
     Basargin argues that he has been denied due process of law
because he was denied a meaningful opportunity to be heard on the
matter of the issuance of the limited entry permit.  See Keyes v.
Humana Hosp. Alaska, Inc., 750 P.2d 343 (Alaska 1988).  The CFEC
responds that Basargin had three separate opportunities to be heard
on the matter, and that these opportunities satisfied the
requirements of due process.  The court reviews this constitutional
question under the "substitution of judgment"standard.  
     The thrust of Basargin's argument regarding due process is
that the three hearings afforded him did not provide a "meaningful"
opportunity to be heard because the definitions underlying the
adjudication of his application changed significantly during its
pendency.  The court finds Basargin's arguments unpersuasive. 
While doubtless Basargin would have preferred an opportunity to
fine tune his argument to each new nuance announced by the Alaska
Supreme Court in this area, he presents no authority for the
proposition that he is entitled to such an opportunity as a matter
of due process.  
     The facts at issue in this application have remained constant
since the date of Basargin's original application:  the extent and
circumstances of Basargin's participation in the Prince William
Sound drift gillnet fishery prior to 1973, his ownership of vessels
and gear, his economic dependence on the fishery, and the
availability of alternative employment opportunities.  Basargin was
given ample opportunity to present evidence and argument regarding
these facts in 1978, and again in 1984.  
     Basargin's reliance on Forquer v. State, Commercial Fisheries
Entry Comm'n, 677 P.2d 1236 (Alaska 1984), is misplaced.  The
fishermen in Forquer applied for permits and were denied.  The
fishermen then submitted additional evidence, but were denied again
without a hearing.  The supreme court held that the fishermen were
entitled to a hearing under AS 16.43.260(c).  The hearing that the
supreme court found necessary for the Forquer fishermen was the
very hearing that Basargin had in 1978.  Forquer provides no
support for Basargin's argument that an additional hearing is
required upon evolution of the relevant case law, or because an
applicant desires to submit additional evidence after having had
the initial opportunity to do so.  
     Basargin was provided with ample opportunity to be heard in
this case, and his arguments that he was denied due process of law
are without merit.  
     2.   Specific Point Disallowances
     Basargin next argues that the CFEC wrongfully denied him
points for participation in the fishery, for ownership of vessels
and gear, and for income dependence on the fishery.  Basargin's
challenges to these point determinations are matters of fact, and
thus the court reviews the determinations of the CFEC on a
"substantial evidence"standard.  Thus, the court will uphold the
CFEC findings if they are supported by "such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion." Commercial Fisheries Entry Comm'n, State of Alaska v.
Baxter, 806 P.2d 1373, 1374 (Alaska 1991).
     a.   Participation
     Basargin was awarded 1 point for participation in the Prince
William Sound fishery as a crew member in 1972.  He argues that, as
an equal partner with a gear license holder for that year (his son
Faddey), he is entitled to additional participation points due to
"unavoidable circumstances"under 20 AAC 05.630(a)(5).  The CFEC
argues that Basargin is ineligible for any points (other than crew
participation points) under 20 AAC 05.630(a) because he was not a
gear license holder for those years, and that the "unavoidable
circumstances"exception does not operate to allow Basargin points
for his partnership status.  
     Basargin argues that his case should be remanded so that he
can make a showing that unavoidable circumstances led to Faddey,
rather than himself, holding the gear license for Prince William
Sound in 1972.  Assuming he could make this showing, he argues that
he would be entitled to claim participation points based on gear
holder status under 20 AAC 05.630(a)(1).  However, as explained in
Alaska Commercial Fisheries Entry Comm'n v. Russo, 833 P.2d 7
(Alaska 1992), only actual gear license holders are entitled to
participation points under 20 AAC 05.630(a)(1), and non-license
holders cannot obtain license holder status for purposes of
participation points by claiming that their partnership with a
license holder amounts to "unavoidable circumstances." 
     Basargin also appears to be arguing that the "unavoidable
circumstances"exception of 20 AAC 05.630(a)(5) is not limited to
gear license holders, but instead applies to anyone who can show
that his or her past participation in the fishery is not accurately
reflected by the points otherwise awarded.  Again, he argues that
he should be allowed to present evidence on remand to support this
argument.  
     As noted above, Basargin had ample opportunity to present his
case to the CFEC.  If unavoidable circumstances were indeed present
such that 1 point for crew participation in 1972 did not accurately
reflect Basargin's past participation in the fishery, the existence
and relevance of those circumstances were known to Basargin by the
time of his hearings before the CFEC.  There is no indication that
he presented any such evidence to the CFEC, and he is not entitled
to present it now.  
     Substantial evidence supports an award of one point for
Basargin's past participation as a crewman in the Prince William
Sound fishery.  Accordingly, Basargin's arguments on this point are
without merit.  
     b.   Income dependence
     Basargin was awarded 6 points for income dependence in 1972. 
He argues that his partnership with a gear license holder
constitutes "special circumstances"under 20 AAC 05.630(b)(2), and
that he should be allowed to present evidence that, he argues,
would entitle him to up to an additional 4 points.  The CFEC
responds that this partnership status was already taken into
account in awarding Basargin the maximum of 6 points for income
dependence in the 1972 fishery.  
     The court agrees with the CFEC that neither additional points
nor a remand for additional hearing is necessary in this matter. 
As Basargin points out, the supreme court has interpreted "special
circumstances"under 20 AAC 05.630(b)(2) to be broader than the
"unavoidable circumstances"under 20 AAC 05.630(a)(5).  See Russo,
833 P.2d at 9-10.  However, the CFEC already took Basargin's
circumstances into account in awarding him 6 points for economic
dependence.  
     As with evidence of the circumstances of Basargin's
participation in the fishery, Basargin was on notice of the
existence and relevance of any special circumstances that might
have existed regarding his income dependence.  Despite this notice,
the evidence presented to the CFEC by Basargin indicated that he
had not fished Prince William Sound at all prior to 1972, and had
fished in 1972 as a partner with a gear license holder.  
     Assuming for purposes of this discussion that Basargin is
correct in interpreting 20 AAC 05.630(b)(2) as requiring
consideration of an applicant's overall circumstances without
regards to the stated maximum points for 1971 and 1972, Basargin
has not presented such evidence of overall circumstances.  Instead,
he has presented evidence, presumably accurate, that provides
substantial evidence for the CFEC's award of 6 points for
dependence on the Prince William Sound fishery.  Accordingly, his
argument regarding economic dependence is without merit.  
     c.   Vessel and gear
     Finally, Basargin argues that he is entitled to the maximum of
6 points for his ownership interests in vessels and gear.  As he
has already been awarded 3 points for vessel and gear ownership, he
could gain an additional 3 points if he were to prevail on this
point.  Thus, at most, Basargin would end up with 17 points out of
the 18 necessary for issuance of a permit.  
     Because Basargin cannot obtain the points necessary for
issuance of a permit, his arguments regarding ownership are moot. 
The court declines to address those arguments at this time.  
                            CONCLUSION
     The court finds that Basargin received due process in
consideration of his application for a Prince William Sound drift
gillnet permit, and further finds that substantial evidence
supported the CFEC's factual findings.  Based on these factual
findings, Basargin has not demonstrated that he is entitled to a
permit.  This court hereby AFFIRMS the CFEC's denial of Basargin's
application for such a permit.  
     DATED at Kenai, Alaska, this 26th day of June, 2000.  

                                   /s/                      
                                   HAROLD M. BROWN
                                   Superior Court Judge

* We have edited the superior court's decision to conform to our technical rules.