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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cleaver v. State, Commercial Fisheries Entry Commission (6/7/2002) sp-5576

Cleaver v. State, Commercial Fisheries Entry Commission (6/7/2002) sp-5576

     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


JOHN T. CLEAVER,                        )
                              )    Supreme Court No. S-9689
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    1JU-99-968 CI
                              )
STATE OF ALASKA, COMMERCIAL)
FISHERIES ENTRY COMMISSION,   )    O P I N I O N
                              )
             Appellee.                   )    [No. 5576 - June 7,
                              2002]
________________________________)


          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances: Bruce B. Weyhrauch,  Law  Office
          of Bruce B. Weyhrauch, Juneau, for Appellant.
          Shannon  OFallon, Assistant Attorney General,
          and   Bruce  M.  Botelho,  Attorney  General,
          Juneau, for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION

          I.   In his first attempt at participating in the Northern

Southeast Inside Sablefish Longline fishery, John Cleaver  called

it  a season after only two days because his homemade wooden bait

chute was too dangerous, his equipment for fishing halibut proved

inadequate for sablefish, and his line got tangled in the gear of

other  fishers.   To  qualify  for skipper  participation  points

towards  a  permanent limited entry permit, Cleaver characterized

his   problems   as  an  extensive  mechanical  breakdown.    The

Commercial  Fisheries  Entry  Commission  did  not  accept   that

characterization, and denied Cleaver the points he needed  for  a

permit.  The superior court affirmed the commissions decision and

awarded attorneys fees to the state.  We affirm in all respects.

II.  FACTS AND PROCEEDINGS

          In  1973  the  Alaska legislature enacted  the  Limited

Fisheries   Entry  Act.1   The  act  established  the  Commercial

Fisheries  Entry  Commission and charged it with  the  duties  of

regulat[ing] entry into the commercial fisheries for all  fishery

resources  in  the  state and establish[ing] priorities  for  the

application  of  the provisions of this chapter  to  the  various

commercial  fisheries  of the state.2  The  legislature  required

that  the  prioritization of fishery applicants  be  based  on  a

reasonable balance of an applicants degree of economic dependence

on the fishery and extent of past participation in the fishery.3

          The  commission determined that the Northern  Southeast

Inside  Sablefish  Longline fishery could sustain  a  maximum  of

seventy-three  commercial  fishers.4   The  commission  developed

regulations to prioritize applicants for fishery permits using  a

one-hundred   point  scale  with  points  awarded  for   economic

dependence,  vessel  investment, and  past  participation.5   The

commission  decided that all applicants with  eighty-one  to  one

hundred  points  would be given permanent entry  permits  because

they would suffer significant economic hardship by exclusion from

the   fishery.6   The  permits  remaining  after   the   hardship

applicants  received permits would be awarded to those applicants

with  the  highest point totals.  As the applicants point  claims

were verified, the commission periodically calculated the minimum

points  required  for a permit based on the remaining  number  of

permits  and  the  point  totals  of  the  remaining  applicants.

Applicants  who  fell  below  this  denial  point  level   became

ineligible  for a permit.  The remaining applicants   those  with

less  than the eighty-one points but more than the current denial

point  level   received interim permits while their  applications

          were being verified and processed.7

          In 1972 John Cleaver began commercial fishing in Alaska

as a troller.  In 1979 Cleaver bought the F/V Deep Sea and fished

for  salmon and halibut.  During the spring of 1983, he attempted

to  longline8  for sablefish9 for the first time in the  Northern

Southeast  Inside  Sablefish Longline fishery.   Cleaver  assumed

that longlining for sablefish would be similar to the fishing  at

shallower depths that he had done previously.

          Cleaver  had several problems during his first  attempt

at  longlining for sablefish in April 1983.  First,  the  halibut

anchors  that Cleaver used were not heavy enough to  get  to  the

depths  of  sablefish.  Second, the bait chute that he built  was

dangerous.   Cleavers  makeshift wooden bait  chute  allowed  the

lines to bounce up and down to the extent that he feared for  the

safety  of  his  crew.  Third, Cleavers depth sounding  equipment

gave  readings in meters instead of fathoms, which  Cleaver  said

gave  him  trouble  judging the depth.  As  Jana  Sushy,  one  of

Cleavers  two  deckhands  who was on  her  first  longline  trip,

admitted,  none of us really knew the proper details  or  overall

concept.   Cleavers  gear got tangled with the  gear  of  another

fisher,  and Cleaver gave up longlining for sablefish  after  two

days.  Cleaver landed only 385 pounds of sablefish.  Although the

fishery  was  opened later that year between  September  1-7  and

October  10-14, Cleaver did not attempt to longline for sablefish

again in 1983 because he did not have enough money to correct the

problems with his equipment.

          After  the  1983 season, Cleaver bought  the  necessary

equipment for longlining sablefish.  In 1984 Cleaver successfully

participated in the fishery.

          In 1987 Cleaver applied for a permanent entry permit to

the  Northern  Southeast Inside Sablefish Longline  fishery.   He

claimed   a   total   of  sixty-five  points:  eighteen   skipper

participation  points  for  the 1984  fishing  season,  seventeen

skipper participation points for the 1983 fishing season, fifteen

          points for income dependence, and fifteen points for vessel

investment.10   The  commission  originally  found  that  Cleaver

qualified  for  only forty and one-half points.   The  commission

allowed  only  seven  and one-half points for  vessel  investment

because Cleavers wife was a co-owner of the F/V Deep Sea, and  it

disallowed  any  points  for  skipper  participation   in   1983,

presumably  because  Cleavers  participation  that  year  was  so

minimal.  Cleaver timely requested an administrative hearing.  At

the hearing, Cleaver argued that he should get all fifteen points

for   vessel   investment  and  seventeen  points   for   skipper

participation in 1983 based on extraordinary circumstances.

          In  1991  a  hearing officer decided that  Cleaver  was

entitled to the full fifteen points for vessel investment because

the  Cleavers  purchased the F/V Deep Sea  as  joint  tenants  to

satisfy  the  financing  banks  requirements  and  because  Wendy

Cleaver was not applying for a permit in the fishery.  But as  to

skipper  participation in 1983, the hearing  officer  found  that

Cleaver   failed  to  prove  that  he  was  entitled  to  skipper

participation points based on extraordinary circumstances because

he  abandoned  his  intent to participate, because  his  loss  of

financial  ability to continue in the fishery did not  constitute

an   extraordinary  circumstance,  and  because  he   failed   to

demonstrate  that  he  made all reasonably  possible  efforts  to

participate  in the fishery.  The commission adopted the  hearing

officers decision as a final decision after sixty days.

          Cleaver  filed a petition for administrative review,  a

request  to  accept a late-filed petition, and a request  for  an

interim permit.  The commission declined to accept Cleavers  late

petition   to  reopen  his  application  because  he  failed   to

demonstrate due diligence from the time of his actual  notice  of

the  hearing  officer and final commission decisions and  because

his  underlying substantive claim fail[ed] to present  a  genuine

issue that would warrant further administrative proceedings.  The

commission also denied Cleaver an interim use permit.11

          Cleaver appealed to the superior court.  Superior Court

Judge  Patricia A. Collins affirmed the commissions decision  and

awarded  attorneys fees of $3,039 to the state, which was  twenty

percent  of the 101.3 hours spent on the appeal at a market  rate

of  $150  per hour.  Cleaver now appeals both the denial  of  his

petition  to  review his application and the award  of  attorneys

fees to this court.

III. STANDARDS OF REVIEW

          In  administrative  appeals,  we  directly  review  the

agency  action in question.12  We review the commissions  factual

findings  under the substantial evidence standard.13  Substantial

evidence  is  such relevant evidence as a reasonable  mind  might

accept  as  adequate  to  support a  conclusion.14   We  apply  a

deferential  reasonable basis standard of review  to  an  agencys

interpretation  of  its own regulations.15   Our  review  of  the

commissions  application of the law to the facts  is  limited  to

whether the decision was arbitrary, unreasonable, or an abuse  of

discretion.16

          We review a superior courts award of attorneys fees for

abuse of discretion.17

IV.  DISCUSSION

     A.   The  Commission Did Not Err by Refusing To Give Cleaver
          Skipper Participation Points for 1983 Based on Extraordinary
          Circumstances.
          
          Cleaver argues that his difficulties longlining  during

the  1983  sablefish  season met the criteria  for  extraordinary

circumstances and that the commission erred in refusing to  award

him skipper participation points for that year.

          Title  20  AAC  05.705(a)(1) sets out the schedule  for

skipper  participation points for 1982-84.18  To be eligible  for

the  points  for  a  certain year, the  regulation  requires  the

applicant to have commercially harvested at least 2,000 pounds of

sablefish in the fishery as a skipper.19  Cleaver harvested  only

385  pounds  of  sablefish  in 1983.   Accordingly,  he  was  not

eligible to claim skipper participation points for 1983 under  20

          AAC 05.705.

          Under  20 AAC 05.703(d), however, an applicant  may  be

awarded   points  he  was  otherwise  ineligible  to   claim   if

extraordinary  circumstances prevented his participation.20   The

hearing officer applied a three-part test to determine whether an

applicant  was  entitled  to  participation  points  because   of

extraordinary circumstances: (1)  whether the applicant  had  the

specific intent to participate in the fishery, (2) whether he was

prevented  from doing so due to some extraordinary circumstances,

and  (3)  whether,  despite  those  circumstances,  he  made  all

reasonably possible efforts to participate in the fishery.

          1.   Specific intent

          1.   The hearing officer found that Cleaver once had the specific

intent  to  participate in the fishery but abandoned that  intent

after  discovering  that his set-up on  the  Deep  Sea  was  both

inadequate and dangerous and concluding that he couldnt afford to

make  the  necessary changes that year.  The commissions decision

to  deny  Cleavers  petition  for reconsideration  noted  several

portions  of the hearing transcript where Cleaver indicated  that

he  gave up his specific intent to participate that year.  In one

portion, Cleaver testified that:

          it had been my intention to fish . . . in  in

          83,  I had had some friends that told me that

          was a good thing to do and I was  I wanted to

          do  it,  but  I  I felt that I was  going  to

          with the equipment that I had, I probably ran

          the  risk  of endangering other peoples  gear

          and  my  crew, hurting somebody and  I  didnt

          think it was safe or plausible to do it, so I

          chose not to.

Later  in  the hearing, the hearing officer and Cleaver had  this

exchange:

          Hearing Officer: [Y]ou just called it  a  day
          then?
          
          Mr. Cleaver: Yeah, I called it a season . . .
          [.]
          
          Hearing Officer: Season.

          Mr. Cleaver: . . . for the [sablefish].

In a third excerpt, Cleaver volunteers that he gave up:

          Hearing Officer: Okay.  So this happened back
          in April?
          
          Mr. Cleaver: Right.
          
          Hearing  Officer: You had your two days,  you
          had this landing . . . .
          
          Mr. Cleaver: And I gave it up at that point.

By his own testimony, Cleaver candidly admitted that he abandoned

his intent to participate in 1983.

          Furthermore, Cleaver made no attempt to participate  in

the  two  openings in the fishery later in the  year  during  the

periods  of  September 1-7 and October 10-14.  During  the  first

opening,  Cleaver was trolling for salmon; during the second,  he

had  already  returned  to Seattle for the  season.   Substantial

evidence  supports  the  hearing officers  finding  that  Cleaver

abandoned his intent to participate.

          2.   Extraordinary circumstances

          The  commissions  regulations  give  examples  of  what

situations constitute extraordinary circumstances.  Extraordinary

circumstances  include  . . . the loss  of  vessel  or  equipment

through sinking, destruction, or extensive mechanical breakdown .

.  . .  Extraordinary circumstances do not include . . . loss  of

the financial means to continue participation in the fishery.21

          The    commission    interpreted   the    extraordinary

circumstance  of extensive mechanical breakdown  to  exclude  the

problems  encountered by first-time participants in the  fishery.

The commission reasoned that Cleavers lack of financial resources

to mechanically refit his vessel is a problem so common to first-

time  entrants  that  it  does not qualify  as  an  extraordinary

circumstance . . . .  [P]roblems faced by first-time entrants are

far  too  common to be treated as extraordinary, unavoidable,  or

special circumstances.

          The  commissions interpretation is reasonable. The term

extraordinary excludes the common.  The term mechanical breakdown

implies  that  the equipment worked at some point.  Inability  to

properly  use equipment and unsuitability of equipment   are  not

generally  considered  to be mechanical  breakdowns.   Thus,  the

commissions interpretation is reasonable under the regulation.

          We  have previously approved of the commissions similar

interpretation  of  the  term  unavoidable  circumstances  in   a

parallel  regulatory  situation.  In Alaska Commercial  Fisheries

Entry Commission v. Russo,22 Russo argued that he was entitled to

points  under  the  unavoidable circumstances clause  of  20  AAC

05.630(a)(5),23  similar to Cleavers claim for points  under  the

extraordinary  circumstances clause  of  20  AAC  05.703(d).   In

Russo,   we   upheld  the  commissions  interpretation   limiting

unavoidable  circumstances to cases where fishers were  prevented

from  fishing by circumstances beyond their control.24   Although

the  words  extraordinary and unavoidable have slightly different

meanings,  both  are  used to describe  problems  of  an  extreme

nature.  Both regulations allow the commission the discretion  to

award   past   participation  points  if  extreme   circumstances

prevented  the applicants participation.  Here, the  difficulties

Cleaver  encountered  during his first attempt  to  longline  for

sablefish were common to other first-time entrants and thus  were

not exceptional.

          Cleavers  lack of experience and appropriate  equipment

do  not constitute extraordinary circumstances, and neither  does

Cleavers  financial inability to resolve those  problems.25   The

record  demonstrates  that  Cleaver simply  lacked  the  economic

resources  to  participate in the fishery.  The  hearing  officer

found that Cleaver lost the financial ability to continue in  the

fishery.   At the hearing, Cleaver stated that I didnt  have  the

money  to really set up properly for  for [sablefish] and that  I

had  to  make some major changes and to make those major  changes

during  the season would have been  I  I just couldnt  have  done

          it.  We were too financially strapped to get it accomplished in

time  for  the  1983  . . . season in the fall.   However,  while

substantial  evidence supports the hearing officers finding  that

Cleaver  could  not participate in the fishery due  to  financial

problems,  the commission has consistently disallowed points  for

unavoidable circumstances when the problems were lack  of  money,

equipment,  or  experience faced by a first-time entrant  in  the

fishery.26  Thus the commissions application of the  law  to  the

facts  of  this case is not arbitrary, but rather consistent  and

reasonable.

          3.   All reasonably possible efforts to participate

          The hearing officer found that Cleaver did not make all

reasonably  possible efforts to participate because  he  did  not

seek a loan for the estimated $4,000 of modifications, equipment,

and  repairs  he  needed  to enable him to  safely  longline  for

sablefish.   Although Cleaver now presents evidence that  he  did

ask  one  bank for a loan,  he testified to the contrary  at  the

hearing:

          Hearing  Officer: I take it then,  you  didnt
          try  to  get the $4,000 loan from anybody  in
          order  to get  get the gear in shape to  make
          the [indisc.].
          
          Mr.  Cleaver: I was right up to  my  neck  in

          loans.   I couldnt  couldnt even think  about

          it.

Even  if  Cleaver did make an attempt to get a loan, that  single

effort  is  not  inconsistent with the hearing officers  finding.

Substantial  evidence supports the hearing officers finding  that

Cleaver   did  not  make  all  reasonably  possible  efforts   to

participate in 1983.

          We  uphold the commissions decision because the factual

findings  were supported by substantial evidence, the commissions

interpretation  of  the  term  extraordinary  circumstances   was

reasonable,  and its application of that interpretation  was  not

arbitrary.

     B.   The Superior Court Did Not Abuse Its Discretion by Its Award
          of Attorneys Fees.
          
          Cleaver  argues  that  the superior  court  abused  its

discretion  in  awarding  attorneys  fees.   The  superior  court

awarded  $3,039, which was twenty percent of $15,195, the  states

total claimed attorneys fees.  The state calculated its claim for

attorneys  fees by multiplying its attorneys actual  hours  spent

preparing the appeal, 101.3 hours, by a market rate of  $150  per

hour.

          Alaska  Rule of Appellate Procedure 508(e)27  grants  a

superior  court sitting as an intermediate court of appeal  broad

discretion to award attorneys fees.28  If the court finds that the

appeal was frivolous or brought simply for the purposes of delay,

full  actual fees may be awarded.  Otherwise, awards of attorneys

fees  under  Alaska Appellate Rule 508(e) should  only  partially

compensate  the  prevailing  party  for  attorneys  fees.29   The

appellate  court may exercise its sound discretion  and  award  a

substantial  sum  as  partial attorneys fees,  if  persuaded  the

amount  of  fees to be awarded is justified and reasonable.30   A

superior  court  may also look to Alaska Rule of Civil  Procedure

82(b)(2) as a guideline for a reasonable award of attorneys fees.31

          We  discern  no  abuse of discretion  in  the  superior

courts  award  of  attorneys fees.  The state  prevailed  on  all

appealed  issues.  Because the superior court  did  not  make  an

express  finding  that the appeal was frivolous,  full  attorneys

fees  are  not  permitted.  But even if the  superior  court  had

substituted the states 1997 billing rate, $94.72 for its internal

clients,  as  suggested by Cleaver, the award of $3,039  is  only

about  thirty percent of the states attorneys fees.   Given  this

partial  award  of  attorneys fees,  the  superior  courts  broad

discretion under Appellate Rule 508(e), the weakness of  Cleavers

substantive claims, and the remaining facts and circumstances  of

this  case,  the  superior  courts award  was  not  an  abuse  of

discretion.

V.   CONCLUSION

          Because the commission did not err in refusing to  give

Cleaver  skipper  participation points and because  the  superior

courts award of attorneys fees was not an abuse of discretion, we

AFFIRM  the commissions denial of a limited entry permit and  the

superior courts award of attorneys fees.


_______________________________
     1     See  ch.  79,  1 SLA 1973; Vik v. Commercial Fisheries
Entry  Commn, 636 P.2d 597, 598 (Alaska 1981).  The  act  is  now
codified at AS 16.43.010-.990.

     2    AS 16.43.100(a)(1) & (2); see also AS 16.43.020.

     3    AS 16.43.250(a).

     4      20  Alaska  Administrative  Code  (AAC)  05.310(f)(1)
(2000); 20 AAC 05.320(e)(1).

     5    20 AAC 05.701-.713.

     6    20 AAC 05.711(a).

     7    AS 16.43.210(a); 20 AAC 05.415(a).

     8     Longlining uses baited hooks on offshoots (gangions or
leaders)  of a single main line (usually several miles  long)  to
catch fish.  Trolling is towing individual fishing lines behind a
moving boat.

     9    Sablefish are also known as black cod.

     10    Cleaver made his claims under 20 AAC 05.705.

     11     Although  the  commissions decision  denied  Cleavers
request  for a 1999 interim use permit, Cleavers appeals  to  the
superior  court  and  this  court have resulted  in  issuance  of
interim   use  permits  to  him  by  the  commission  under   the
requirement  of  Kalmakoff v. State, Commercial  Fisheries  Entry
Commn, 697 P.2d 650, 652 (Alaska 1985).

     12     Northern Alaska Envtl. Ctr. v. State, Dept of Natural
Res., 2 P.3d 629, 633 (Alaska 2000).

     13     Jones  v. Commercial Fisheries Entry Commn, 649  P.2d
247, 249 n.4 (Alaska 1982).

     14    Commercial Fisheries Entry Commn, State v. Baxter, 806
P.2d  1373,  1374  (Alaska  1991)  (quoting  Keiner  v.  City  of
Anchorage, 378 P.2d 406, 411 (Alaska 1963)).

     15     Bartlett v. State, Commercial Fisheries Entry  Commn,
948 P.2d 987, 990 (Alaska 1997).

     16    Rose v. Commercial Fisheries Entry Commn, 647 P.2d 154,
161  (Alaska 1982) (citing State, Dept of Admin. v. Bowers Office
Prods., Inc., 621 P.2d 11, 13 (Alaska 1980)).

     17    Stoshs I/M v. Fairbanks N. Star Borough, 12 P.3d 1180,
1183 (Alaska 2000).

     18    20 AAC 05.705(a)(1) provides:

               (A) Skipper participation points may  be
          claimed  for  a given season subject  to  the
          requirement  that  the  applicant  must  have
          commercially harvested at least 2,000  pounds
          of sablefish in the fishery as a skipper.   A
          rebuttable   presumption  exists   that   the
          applicant was a crewmember and not a  skipper
          for that season if the applicant had only one
          day  with  landings in the  fishery  and  the
          sablefish  poundage from that  days  landings
          represented less than 15 percent of the total
          sablefish poundage delivered from the  vessel
          during that season in the fishery.
               (B)   An  applicant  may  claim  skipper
          participation  points for  the  1982  -  1984
          seasons as shown in the following schedule:
                    Season               Available
                                   Points
                    1984
                                        18
                    1983
                                        17
                    1982
                                        16
                                        
     19    20 AAC 05.705(a)(1)(A).

     20    20 AAC 05.703(d) provides:

               If extraordinary circumstances prevented
          an   applicant  from  participating  in   the
          fishery  in  a  given season, the  commission
          will,  in its discretion, award the applicant
          those  points the applicant could  reasonably
          have   claimed   but  for  the  extraordinary
          circumstance.    Extraordinary  circumstances
          include temporary illness or disability,  the
          loss  of vessel or equipment through sinking,
          destruction,    or    extensive    mechanical
          breakdown,   and  other  similar  objectively
          verifiable   causes   of   non-participation.
          Extraordinary circumstances do  not  include,
          for   example,   voluntary   or   involuntary
          retirement   from   the  fishery,   permanent
          illness, permanent disability, or loss of the
          financial means to continue participation  in
          the fishery.
          
     21    Id.

     22    833 P.2d 7 (Alaska 1992).

     23    Id. at 8.

     24    Id. at 9-10.

     25     E.g.,  In re Lundahl, CFEC File No. 75-642 (July  17,
1991)  (The problems he encountered (primarily, gearing up)  were
not unique to this applicant; rather, they are common among those
entering  a  fishery for the first time.); In re  Anderson,  CFEC
File  No. 75-624 (May 7, 1982) (Inability to obtain financing  is
not,  by itself, an unavoidable circumstance . . . . [T]he  costs
and difficulties incurred in entering a fishery must be faced  by
all  fishermen. (internal quotation marks omitted)); In re  Vick,
CFEC File No. 75-756 (October 27, 1982).

     26    20 AAC 05.703(d).

     27    Alaska R. App. P. 508(e) provides:

               Attorneys  fees  may be  allowed  in  an
          amount  to  be determined by the court.    If
          such  an  allowance is made, the clerk  shall
          issue  an appropriate order awarding fees  at
          the  same  time that an opinion or  an  order
          under  Rule  214  is  filed.   If  the  court
          determines that an appeal or cross-appeal  is
          frivolous or that it has been brought  simply
          for  purposes of delay, actual attorneys fees
          may   be   awarded   to   the   appellee   or
          cross-appellee.
          
     28     Municipality of Anchorage, Police & Fire Ret. Bd.  v.
Coffey, 893 P.2d 722, 731 (Alaska 1995).

     29     State  Pub. Employees Ret. Bd. v. Cacioppo, 813  P.2d
679,  685 (Alaska 1991) (quoting Kenai Peninsula Borough v.  Cook
Inlet Region, Inc., 807 P.2d 487, 501 (Alaska 1991)).

     30    Id.; see also Stalnaker v. Williams, 960 P.2d 590, 598
(Alaska  1998) (affirming award of eighty-six percent  of  actual
fees).

     31     See Carr-Gottstein Props. v. State, 899 P.2d 136, 148
(Alaska 1995).