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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Simpson v. State, Commercial Fisheries Entry Commission (11/19/2004) sp-5846

Simpson v. State, Commercial Fisheries Entry Commission (11/19/2004) sp-5846

     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,
     e-mail corrections@appellate.courts.state.ak.us.

                                   
            THE SUPREME COURT OF THE STATE OF ALASKA


STEVEN SIMPSON,               )
                              )    Supreme Court No. S-10948
             Appellant,            )
                              )     Superior Court No. 3HO-99-137
CI
     v.                       )
                              )    O P I N I O N
STATE OF ALASKA,              )
COMMERCIAL FISHERIES          )    [No. 5846 - November 19, 2004]
ENTRY COMMISSION,             )
                              )
             Appellee.             )
                              )



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

          Appearances:   Michael  Hough,   Homer,   for
          Appellant.  John T. Baker, Assistant Attorney
          General,  Anchorage,  and  Gregg  D.  Renkes,
          Attorney General, Juneau, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          The   Commercial  Fisheries  Entry  Commission   (CFEC)

limited  participation in the Northern Southeast Inside sablefish

fishery, a non-distressed fishery, and set the maximum number  of

permits at seventy-three.  Steven Simpson challenged this  number

and  CFECs decision to deny him skipper participation points  for

1984.   The  superior court upheld CFECs decisions,  and  Simpson

appeals.  Because CFEC followed proper procedures in establishing

the  number  of permits and denying Simpson the disputed  skipper

participation points, we affirm the superior courts decision.

II.  FACTS AND PROCEEDINGS

          In   1985   the   Alaska  Commercial  Fisheries   Entry

Commission (CFEC) limited participation in the Northern Southeast

Inside sablefish (blackcod) longline fishery, because CFEC feared

for  the economic and environmental health of the fishery, which,

it  believed,  was threatened by overfishing.  Case law  required

CFEC  to  set the maximum number of permits at a level  no  lower

than  the highest number of units of gear in the fishery  in  the

four  years  prior  to  the January 1, 1985 qualification  date.1

CFEC  therefore  proposed limiting the number of vessels  in  the

fishery to seventy-three, the number of vessels fishing in  1984,

the   season  in  which  the  participation  was  highest.    The

Commissioner  of the Alaska Department of Fish and  Game  (ADF&G)

wrote CFEC, stating that even seventy-three is too large a number

to  promote  effective management in that area.  The commissioner

recommended exploring methods to reduce the number of permits  to

a lower level.  He stated that [i]t has been demonstrated that 40

to  50  vessels are capable of harvesting the quota, even  during

years when prices were considerably lower than they are now.

          To distribute the seventy-three permits, CFEC developed

a  point  system to determine the applicants order  of  priority,

based  on  each applicants past participation in the fishery  and

economic  dependence  on  the fishery.   The  past  participation

factor awards points for past participation as a skipper and past

participation as a crewmember, and the economic dependence factor

awards  points  for  relative income dependence  and  for  vessel

investment.2

          Simpson  applied  for a limited entry  permit  for  the

fishery  in November 1987; he claimed sixty-five points  for  (1)

past  participation  as a skipper in 1983 and  1984,  (2)  income

dependence,  and  (3)  vessel investment.   In  April  1989  CFEC

informed  Simpson  that he had qualified for  thirty-two  points.

          This total included seventeen points for his past participation

as  a  skipper in 1983 and fifteen points for vessel  investment.

CFEC awarded him no points for past participation as a skipper in

1984 or for income dependence.  In October 1989 CFEC conducted  a

hearing at Simpsons request.  At issue was whether Simpson should

receive  (1)  an additional eighteen points for participating  in

1984  as a skipper or, alternatively, an additional three  points

for  participating  that  year  as  a  crewmember,  and  (2)   an

additional  fifteen points for income dependence.  In  June  1992

the  hearing  officer awarded Simpson an additional three  points

for  participating  as  a crewmember in 1984  and  an  additional

fifteen  points  for  income  dependence  on  the  fishery.   The

additional eighteen points increased Simpsons original  total  of

thirty-two  to  fifty,  rather than the sixty-five  that  Simpson

sought.   The  hearing  officer concluded that  Simpson  did  not

qualify  for points as a skipper in 1984 because Simpson had  not

owned  an interim-use permit for this fishery that year, and  had

instead  used  the interim-use permit of one of his  crewmembers.

The hearing officers decision was mailed to Simpson, along with a

cover letter informing Simpson that he remained eligible to  fish

with  an  interim-use  permit.  Simpson  did  not  challenge  the

hearing officers decision.

          CFEC  reviewed the hearing officers June 1992  decision

on  its  own  motion  and issued a Final Commission  Decision  in

August  1992.  This August 1992 decision clarified that CFEC  did

not  credit Simpson with any catch for either 1982, when  he  did

not  participate in the fishery, or 1984, when he did not possess

an  interim-use  permit.   CFEC mailed  Simpson  a  copy  of  the

decision, but it did not reach him because he had moved.  Simpson

did  not challenge the commissions decision.  The parties dispute

whether  Simpsons  attorney received a copy  of  the  commissions

decision.

          In  November 1997 CFEC mailed Simpson another  copy  of

the  commissions  1992  decision.   He  requested  a  hearing  in

February  1998, but in October 1998 CFEC denied this  request  as

untimely.   Simpson telephoned CFEC in May 1999 to inquire  about

the status of his application.  He was told his application would

probably be denied.

          CFEC determined in July 1999 that due to the number  of

applicants  with more than fifty points, [a]pplicants with  final

classifications of 50 or fewer points have no chance of receiving

permits.   It sent Simpson a final permit denial notice,  because

it  was  mathematically impossible for an applicant  with  50  or

fewer points to qualify for a . . . permit.  Simpson appealed  to

the superior court in August 1999.

          In  the meantime CFEC was considering the optimum level

of  participants  in the fishery.  The superior  court  therefore

granted a limited remand so the parties could present evidence to

CFEC on that topic; they did so.  CFEC issued a public notice and

proposal  in  April  2000  with a preliminary  rationale  for  an

optimum  number.  The superior court then accepted a  stipulation

to  stay  Simpsons  appeal  pending  CFECs  consideration  of   a

regulation  setting  seventy-three as the optimum  number.   CFEC

adopted  that  number in March 2001 and issued a final  rationale

document discussing public comment.  That document stated:

          If  we were to focus purely upon the needs of
          Fish  and  Game  managers  to  conserve   the
          resource  over all years, the optimum  number
          would be lower than 73, probably somewhere in
          the 40 to 50 range.  However, 73 represents a
          compromise  between demands  of  conservation
          and  recognition  that  73  will  likely   be
          manageable  in  many  years  while  providing
          sufficient  opportunity for participation  by
          fishers to avoid the fishery being considered
          too exclusive.
          
The  rationale document stated that an optimum number of seventy-

three does not fully respond to the concerns of the [ADF&G],  but

that  it  achieves  a reasonable balance of  the  factors  to  be

considered  in establishing an optimum number under AS 16.43.290.

The  regulation adopting seventy-three as the optimum number,  20

AAC  05.1145, became final in May 2001.  The superior court  then

lifted  the  stay  of  the appeal, and briefing  resumed  in  the

superior court.

          The  superior  court affirmed CFECs  decisions  in  all

respects,  deciding that (1) CFEC did not err in determining  the

optimum  number to be seventy-three, and that (2) Simpson  failed

to  exhaust  his  administrative remedies in his claim  for  past

participation points as skipper in 1984 and would not qualify for

a  permit  even if he had exhausted his administrative  remedies.

Simpson appeals from the superior courts decision.

III. DISCUSSION

     A.   Standard of Review

          We  review  here  the  decision of the  superior  court

acting  as  an intermediate appellate court when it  reviewed  an

administrative finding.  We independently review the merits of an

administrative   determination.3   In  reviewing   administrative

decisions,  we have recognized at least four principal  standards

of   review.4   These  are  the  substantial  evidence  test  for

questions of fact; the reasonable basis test for questions of law

involving agency expertise; the substitution of judgment test for

questions  of  law  where  no  expertise  is  involved;  and  the

reasonable  and  not arbitrary test for review of  administrative

regulations.5   We review an agencys interpretation  of  its  own

regulation under the reasonable basis standard, deferring to  the

agency  unless  the  interpretation  is  plainly  erroneous   and

inconsistent  with the regulation.6  We review questions  of  law

and  issues  of constitutional interpretation de novo  under  the

substitution of judgment standard.7

     B.   CFEC  Did Not Err in Setting the Number of Permits  for
          the   Northern  Southeast  Inside  Sablefish   Longline
          Fishery at Seventy-Three.
          
          CFEC  has  the  authority to limit participation  in  a

fishery by setting the maximum number of permits.8  We stated  in

Johns  v. Commercial Fisheries Entry Commission that for  a  non-

distressed fishery CFEC is required to set the maximum level at a

level  that is no lower than the highest number of units of  gear

          fished in the four years prior to the limitation of the

particular  fishery.9  The permits are distributed to  applicants

on  a  ranking system.10  Following the distribution, CFEC  shall

establish  the optimum number of entry permits based on statutory

factors.11  The optimum number  can fall within a range of numbers

that  will  result  in a reasonable return  to  fishermen  and  a

healthy  fishery.12   This range may increase  or  decrease  with

changes in biological or market conditions.13

          CFEC must follow certain procedures to bring the actual

number  of  permits, a figure based on the maximum  number,  into

line  with the optimum number.14  Thus, if the optimum number  of

permits is fewer than the outstanding number of permits, CFEC may

establish   a  buy-back  program  for  the  fishery,   purchasing

outstanding permits until the optimum number is reached.15    But

if  the  number  of outstanding entry permits is fewer  than  the

optimum number, CFEC is required to issue new entry permits until

the optimum number is reached.16

          1.   Maximum number

          Simpson contends that the maximum number of permits for

this fishery is too low.  He claims the maximum number adopted by

CFEC is not reasonably necessary to (1) carry out the purposes of

the  Limited  Entry  Act17 (Act), (2) avoid hardship  to  persons

engaged in the fishery, and (3) meet the constitutional goals  we

discussed in Johns18 and State v. Ostrosky.19  He argues that the

maximum  number  is  inconsistent with the  Acts  requirement  of

accomplishing the limitation without unjust discrimination.

          CFEC argues that Johns states that (1) it must set  the

maximum  number for a non-distressed fishery at a level no  lower

than  the highest number of units of gear in the fishery  in  any

one  of  the four years prior to the limitation of the fishery,20

and (2) conservation concerns based on the recommendations of the

ADF&G are a sound basis for determining the maximum number.21

          The  Act  does not provide guidelines for  setting  the

maximum number for non-distressed fisheries,22 other than stating

          that the number should further the legislative purpose.23  In

Johns,  a case also involving a non-distressed fishery and  facts

similar  to those here, we stated that the legislature could  not

have

          reasonably  intended that the maximum  number
          for  a  non-distressed fishery be lower  than
          the  historic high.  We therefore  find  that
          CFEC  is obligated to set the maximum number,
          for  a  non-distressed fishery,  at  a  level
          which is no lower than the highest number  of
          units  of gear fished in the four years prior
          to the limitation of the particular fishery.24
          
Consequently, we stated that the number could not be  lower  than

forty-one  in the fishery at issue in Johns, because [a]  maximum

of  forty-one  purse seiners participated in the fishery  in  the

four  years  prior to limitation.25  Johns did not state  clearly

that  for  a  non-distressed fishery the  number  should  be  the

highest number of units of gear fished in that fishery in any one

of  the  four  previous  years, as AS 16.43.240(a)  requires  for

distressed fisheries.26

          We now expressly hold that for a non-distressed fishery

CFEC must set the maximum number at a level that is no lower than

the highest number of units of gear fished in any one year of the

four  years  prior  to the limitation of the particular  fishery.

Otherwise  the words highest and maximum would make the sentences

quoted  above  illogical, because totaling all  the  participants

during  the  four years would produce a single number that  could

not  have a maximum.27  Similarly, we required the maximum number

to be no lower than the highest number historically;28 the highest

number  would  normally mean the highest in any  season,  because

both  highest  and  maximum imply a comparison  between  seasons.

This  interpretation presents the best way grammatically to  read

this language.  The highest number, therefore, does not mean  the

total  number of permits fished during the four qualifying years,

as  Simpson seems to argue.  Furthermore, our quoted language  in

Johns referred to the statute applicable to a distressed fishery,

AS  16.43.240(a), which states that the maximum number  of  entry

          permits . . . shall be the highest number of units of gear fished

in  that  fishery  during any one of the four  years  immediately

preceding  January 1, 1973.29  This implied that the  requirement

that  the  maximum  number for non-distressed fisheries  was  the

maximum number for any one year.

          Per  Johns,  CFEC  was therefore required  to  set  the

maximum  number  at a level no lower than the highest  number  of

participants  during any one year of the past four  years.   CFEC

set the maximum at seventy-three, thus meeting the first part  of

the Johns requirement.  Johns also requires CFEC to meet the Acts

two   legislative  purposes  of  enabling  fishermen  to  receive

adequate  remuneration and conserving the fishery.30  In  meeting

these purposes, CFEC may consider evidence from other departments

regarding (1) level of stocks in the fishery, (2) predictions for

changes,  and (3) recommendations regarding the maximum number.31

CFEC  here  considered  ADF&Gs comments  that  this  fishery  was

troubled  and  that even seventy-three might be an  unsustainable

number.   CFEC  accordingly struck a permissible balance  between

the  Acts  purposes of ensuring that fishermen  receive  adequate

remuneration and conserving the fishery.

          In  challenging  the maximum number, an applicant  must

show  that  the  number was an expression of whim rather  than  a

product of reason.32  Because CFEC complied with the requirements

of  Johns  by  considering past participation and  other  related

factors  as  explained above, its decision to set the maximum  at

seventy-three was not an expression of whim.  We therefore uphold

it.

          Simpson  advances two other arguments  related  to  the

maximum  number.   First,  he  argues  that  according  to  CFECs

records,  the highest number of units of gear in one of the  four

years  before the limitation was seventy-four, not seventy-three.

CFEC  replies  that Simpson waived his argument that seventy-four

people  participated in the fishery in 1984, because he  did  not

make  it in his opening superior court brief.  We agree with CFEC

          and the superior court that Simpson waived this argument because

he  raised  it  for  the first time in his superior  court  reply

brief.33

          Second, Simpson apparently argues that CFEC can  exceed

and has exceeded maximum permit levels in other fisheries without

triggering the lottery provision of AS 16.43.270.34  Thus, Simpson

contends  that  CFEC was wrong to assert that if it  exceeds  the

maximum  number of permits, [it] is required to conduct a lottery

to  reach the maximum number precisely.   This argument misstates

CFECs position and is also irrelevant.

            Contrary  to Simpsons argument, CFEC does  not  claim

that  it  must conduct a lottery simply because it increases  the

maximum  number.  Instead, CFEC correctly points out that  it  is

required  by  law  to  conduct  a permit  lottery  under  certain

circumstances.35  Simpson also fails in his attempt to  analogize

this fishery to fisheries in which CFEC has issued more than  the

maximum  number of permits.  CFEC exceeded the maximum number  in

Johns because it was required to do so by law.36  The Norton Sound

herring  seine fisherys original maximum number was increased  to

comply  with  Johns  when  CFEC learned  the  highest  number  of

participants  in  one of the four years prior to  limitation  was

higher than CFECs initial research revealed.37  Neither situation

applies  in  this case.  Simpsons argument that CFEC  has  issued

more  than  the  maximum  number of permits  in  other  fisheries

without conducting a lottery is therefore irrelevant.

          2.   Optimum number

          Simpson  contends that the 1994 adoption of the  shared

quota system to replace the derby system in this fishery resulted

in  significant advantages to the participants, the  market,  the

public,  and  the environment.  Each fisher under a shared  quota

system receives an equal share of each years quota, whereas  each

fisher  under  a  derby system tries to catch  as  many  fish  as

possible  during  the season.  Simpson contends that  this  quota

system  established an economically stable and equally  lucrative

          fishery.  He argues that the optimum number of permits should be

greater than seventy-three, and contends that it should be 109.

          CFEC argues that Simpson must show not merely that CFEC

achieved  an imperfect balance of the statutory factors  it  must

consider in establishing the optimum number, but rather  that  it

failed to reasonably consider the factors at all.38  It claims he

has  failed  to  do  this.   CFEC maintains  that  it  thoroughly

considered  data  related to both the conservation  and  economic

considerations,  including information the  ADF&G  provided.   It

contends  that  it struck a reasonable balance  of  the  relevant

factors in accordance with the Acts purposes and it did not abuse

its discretion.

          Alaska Statute 16.43.290 requires CFEC to establish the

optimum  number of permits and lists the factors  CFEC  needs  to

consider in doing so.  It provides:

          Following the issuance of entry permits under
          AS  16.43.270, [which is based on the maximum
          number,]  the commission shall establish  the
          optimum  number  of entry  permits  for  each
          fishery  based upon a reasonable  balance  of
          the  following general standards:(1)      the
          number   of   entry  permits  sufficient   to
          maintain an economically healthy fishery that
          will  result in a reasonable average rate  of
          economic     return    to    the    fishermen
          participating  in  that fishery,  considering
          time  fished  and  necessary  investments  in
          vessels and gear;(2)     the number of  entry
          permits  necessary to harvest  the  allowable
          commercial  take  of  the  fishery   resource
          during  all  years  in an orderly,  efficient
          manner,  and  consistent with  sound  fishery
          management techniques;(3)     the  number  of
          entry  permits  sufficient to  avoid  serious
          economic hardship to those currently  engaged
          in  the  fishery, considering other  economic
          opportunities   reasonably    available    to
          them.[39]
          
The  optimum  number,  which is codified by regulation  for  this

fishery,40 may be greater or less than the number of permits that

have been actually issued for the fishery.41

          As  noted  above,  CFEC  had evidence  that  the  stock

          strength of the fishery was declining, and ADF&G thought that

even  seventy-three permits would be too many.  The  fishery,  as

well  as the fishers livelihood, depends on a sustainable  catch.

Thus,  CFEC  wrote  that it believed that  conservation  of  this

resource is the primary consideration.  Its decision to  set  the

optimum number at seventy-three, therefore, is reasonable and not

arbitrary, and is also consistent with the statute and reasonably

necessary to its purposes; it consequently satisfies the standard

of review we apply when reviewing an administrative regulation.42

We therefore uphold it.

          3.   Bringing  the  maximum number into line  with  the
               optimum number
               
          Simpson  asserts  that  it was incorrect  for  CFEC  to

contend below that setting the optimum number above seventy-three

would require CFEC to sell the additional permits for fair market

value.   He states that CFEC was asked to establish, not  revise,

an  optimum  number of permits for the fishery;  he  consequently

argues that AS 16.43.290 does not address the sale of permits.

          Simpsons briefs do not make it clear how an increase in

the optimum number would benefit Simpson, i.e., make him eligible

to  obtain  a  permit without paying for it.  It is  the  maximum

number  that  is  important  in this case.   Perhaps  Simpson  is

contending  that  setting the optimum number at a  figure  larger

than  seventy-three  somehow  would have  increased  the  maximum

number  enough  beyond seventy-three that his point  total  would

have made him eligible for a permit.  Or perhaps he is contending

that  if  the  optimum number had been much larger than  seventy-

three,  CFEC would not have auctioned off the additional permits,

and  instead would have issued him a permit without requiring him

to pay fair market value for it.

          But  such  contentions would be inconsistent  with  the

controlling  statute.   As  we stated in  Johns,  once  CFEC  has

determined the optimum number for a fishery, [i]f the optimum  is

greater  than  the number of permits issued plus  the  number  of

applications  pending,  the  excess  should  be  sold  under  the

          provisions of AS 16.43.330.43  CFEC may sell additional permits if

the  number  of outstanding entry permits for a fishery  is  less

than  the  optimum number.44  Alaska Statute 16.43.330 calls  for

issuing  the  additional permits in a manner that  assure[s]  the

receipt of fair market value.45  Therefore, if the optimum number

exceeded the maximum number, the controlling statute would be  AS

16.43.330,  not AS 16.43.290, the statute Simpson  cites.    This

means  that increasing the optimum number would not help Simpson.

He  would have to pay fair market value for an auctioned  permit;

he might as well purchase a permit on the open market.

          Simpsons assertion that CFEC has not auctioned  permits
in  the past does not demonstrate any error here.  CFECs practice
in other fisheries does not establish that it erred when it found
that  the  maximum number of permits for this fishery  should  be
seventy-three  and that the optimum number was  no  greater  than
seventy-three.

     C.   CFEC  Did Not Violate Simpsons Constitutional Right  to
          Equal Protection.
          
          Simpson  argues  that  this fishery  will  exclude,  in

violation  of article I, section 1 and article VIII, sections  3,

15,  and  17 of the Alaska Constitution,  fishers who  have  been

participating in the fishery for at least twenty years.

          CFEC  argues  that Johns states that (1) article  VIII,

section 15 of the Alaska Constitution authorizes a limited  entry

system,46  and that (2) regardless of changed circumstances,  the

Acts  optimum  number  provision is the mechanism  by  which  the

constitutionality of the limited entry system is maintained.47

          In Johns we stated that the

          CFECs   action  was  justified  by   resource
          conservation  reasons.   Imposing  a  limited
          entry  system for these reasons is  expressly
          authorized by article VIII, section 15 of the
          Alaska Constitution.  It is a non-sequitur to
          contend   that  the  exclusivity   which   is
          inherent in any limited entry system violates
          the  state  constitution, since  the  limited
          entry  system is authorized under  the  state
          constitution.[48]
          
Similarly, we stated in Ostrosky that article VIII, section 15 of

the Alaska Constitution authorized a limited entry system despite

the  implicit prohibition found in article VIII, section 3 of the

Alaska  Constitution.49   Simpsons  constitutional  argument   is

therefore without merit.

     D.   CFEC   Did   Not   Err  in  Denying   Simpson   Skipper
          Participation Points for the 1984 Season.
          
          Simpson  argues that CFEC erred in denying  him  points

for  participating  as  a skipper in 1984.   CFEC  contends  that

Simpson failed to exhaust his administrative remedies and that he

does  not  qualify as a skipper under the plain language  of  the

governing   regulation.   We  need  not   address   CFECs   first

contention,  because  whether  or  not   Simpson  exhausted   his

administrative remedies, he loses on the merits.

          Per   20   AAC   05.705(a)(1)(A),   to   receive   past

participation  points  as a skipper, one must  have  commercially

harvested the resource as a skipper.50  Skipper is defined by  20

AAC  05.713(9) to mean a gear operator who . . . (C) was licensed

according to the following: (i) for the years 1978-1984  had,  at

the  time  the skipper participation occurred, a valid  sablefish

interim-use  permit for the fishery for which  the  applicant  is

applying.51

          Simpson stated in his affidavit: I completely forgot to

get  an inside Blackcod license in 1984 until the day before  the

opening.  Since one of my crewmembers, Kenton B. Pierce,  was  in

possession  of a valid inside license for that year we  sold  the

fish  on  his license.  Pierce confirmed that he did not wish  to

apply  for a limited entry blackcod permit and that the  delivery

should  be  credited to Simpson as the skipper.  Because  Simpson

had  on  board and used a valid sablefish interim-use permit  for

the  fishery  issued to his crewmember, Simpson  argues  that  he

satisfies 20 AAC 05.713(9)(C)(i).

          The  plain language of 20 AAC 05.713(9)(C)(i)  requires

that, to be a skipper, an applicant must have had a valid interim-

use  permit.   Simpson  did not have  one  for  1984.   Only  his

crewmember  did.   The  plain  language  interpretation  of   the

definition therefore supports CFECs argument.52  In addition,  in

          Crivello v. State, Commercial Fisheries Entry Commission we

upheld  CFECs  decision  not to permit a partner  to  donate  his

vessel  and  gear  ownership points to the other  partner.53   We

reached a similar conclusion in Alaska Commercial Fisheries Entry

Commission v. Russo.54

          Russo, who did not himself hold a gear license for  the

disputed  year, sought  participation points as an equal  partner

of  a  gear  license  holder.55  He relied on  State,  Commercial

Fisheries  Entry  Commission v. Templeton, in  which  we  granted

Templeton   income   dependence   points   under   the    special

circumstances  provision  of  20  AAC  05.630(b)(2)  even  though

Templeton  lacked a gear license for those disputed years.56   We

rejected Russos claim, stating that Templeton has been limited  .

.  . to cases involving income dependence points.  Templeton does

not  apply  to  equal  protection claims or to  claims  for  past

participation  points . . . .57  We reasoned that  [t]here  is  a

textual difference between the special circumstances clause, .  .

.  applicable  to  income dependence points and  the  unavoidable

circumstances  clause,  . . . applicable  to  past  participation

points.58   Unavoidable implies a narrower set  of  circumstances

than  special  and requires both uniqueness and unavoidability.59

We stated that the

          CFECs     interpretation    of    unavoidable
          circumstances,  which  results  in   limiting
          application  of  the clause  to  cases  where
          fishermen  are  prevented  from  fishing   by
          circumstances   beyond  their   control,   is
          supported  by  this distinction.   While  the
          cases   of  non-licensee  partners   may   be
          relatively unique, thus justifying a  finding
          of   special  circumstances,  they  were  not
          brought   about  by  uncontrollable  external
          forces, thus justifying CFECs refusal to find
          unavoidable circumstances.[60]
          
          Simpson seeks past participation points, even though he

admits  he  did  not have a valid interim-use  permit  for  1984.

Although we relied in Russo on the difference between the special

circumstance  clause and the unavoidable circumstance  clause,  a

          distinction not apparent in this case, we also rejected the

argument  Simpson  makes  here:  that  non-licensed  fishers  can

receive past participation points.

          Simpson  also argues that he is entitled to  additional

points  because he and Pierce were joint operators.  CFEC  argues

that  Simpson  is not entitled to joint operator points,  because

the  applicant  must  participate as a  skipper  to  be  a  joint

operator.61

          The  joint  operators regulation, 20 AAC  05.703(b)(4),

states:

          After  the  pounds  landed and  annual  catch
          value  of  the  joint  operation  have   been
          allocated   among  the  joint  operators   in
          accordance  with (1)-(3) of this  subsection,
          skipper  participation  points  and  relative
          income  dependence points will be  determined
          for each joint operator who was a skipper  as
          defined in 20 AAC 05.713(9) as follows:
               (A)   Skipper participation points  will
          be  determined  in  accordance  with  20  AAC
          05.705(a)(1), 20 AAC 05.707(a)(1), and 20 AAC
          05.709(a)(1).
               (B)  [Relative income dependence points]
          
(Emphasis added.)  The catch is divided among the joint operators

according  to  the  procedures listed in 20 AAC 05.703(b)(1)-(3),

and,  as  the  emphasized  passage  shows,  20  AAC  05.703(b)(4)

requires  the  joint operator to be a skipper to receive  skipper

participation points.  Moreover, 20 AAC 05.703(b)(1) states  that

the  pounds and catch value allocated to each individual will  be

based on catch records recorded under each applicants interim-use

permit.  Simpson did not have an interim-use permit in 1984.

          Applying  the reasonable basis standard of  review,  we

therefore  uphold  CFECs decision not to  grant  Simpson  skipper

participation  points  for  1984 because  we  conclude  that  the

decision  is neither plainly erroneous nor inconsistent  with  20

AAC 05.703(b), .705(a)(1), and .713(9).

IV.  CONCLUSION

          For these reasons, we hold that CFEC did not err in (1)

setting  the maximum number and the optimum number of permits  at

          seventy-three, and (2) denying Simpson skipper participation

points  for  the 1984 season.  We therefore AFFIRM  the  superior

court decision that affirmed CFECs decision.

_______________________________
     1     Johns  v. Commercial Fisheries Entry Commn,  758  P.2d
1256, 1261-62 (Alaska 1988) (applying AS 16.43.240).

     2     The  point system for this fishery is described in  20
Alaska Administrative Code (AAC) 05.705 (2003).

     3    Bruner v. Petersen, 944 P.2d 43, 47 n.5 (Alaska 1997).

     4    Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska 1975).

     5    Id.

     6    Lauth v. State, 12 P.3d 181, 184 (Alaska 2000) (quoting
Bd.  of  Trade, Inc. v. State, Dept of Labor, Wage & Hour Admin.,
968 P.2d 86, 89 (Alaska 1998)).

     7     Revelle  v.  Marston, 898 P.2d 917, 925  n.13  (Alaska
1995).

     8    AS 16.43.240.

     9    758 P.2d 1256, 1262 n.6 (Alaska 1988).

     10    AS 16.43.250-.260; Johns, 758 P.2d at 1258.

     11    AS 16.43.290.

     12    See AS 16.43.990(6); AS 16.43.290.

     13    See AS 16.43.300.

     14    AS 16.43.310-.330.

     15    AS 16.43.310.

     16    AS 16.43.330.

     17    AS 16.43.010.

     18    Johns, 758 P.2d at 1263-64.

     19    State v. Ostrosky, 667 P.2d 1184, 1190 (Alaska 1983).

     20    Johns, 758 P.2d at 1262 n.6.

     21    Id. at 1263.

     22    Id. at 1258.

     23     Rutter  v. State, 668 P.2d 1343, 1346 (Alaska  1983),
superseded  by  statute as stated in Haynes v. State,  Commercial
Fisheries Entry Commn, 746 P.2d 892, 894 (Alaska 1987).

     24    Johns, 758 P.2d at 1262 n.6 (discussing AS 16.43.240).

     25    Id. at 1261.

     26    Id. at 1262 n.6.

     27      This  assumes  that  CFEC  knows  how  many   people
participated  in the fishery, so that maximum does not  refer  to
the  largest possible total number out of several possible  total
numbers of participants for those years.

     28    Johns, 758 P.2d at 1262 n.6.

     29    AS 16.43.240(a).

     30    Johns, 758 P.2d at 1263.

     31    Id.

     32    Id.

     33    Alaska R. App. P. 212(c)(3).

     34     AS 16.43.270, dealing with initial issuances of entry
permits, states in part:

          (a)    The   commission  shall  issue   entry
          permits,  for  each  fishery,  first  to  all
          qualified   applicants   in   the    priority
          classifications    designated    under     AS
          16.43.250(b) and then to qualified applicants
          in     order     of    descending    priority
          classification,  until the  number  of  entry
          permits  issued equals the maximum number  of
          entry  permits established under AS 16.43.230
          and 16.43.240 for each fishery, except that a
          person   within   a  priority  classification
          specified  under AS 16.43.250(b) may  not  be
          denied an entry permit.
          
          (b)    If,   within   the   lowest   priority
          classification  of  qualified  applicants  to
          which some entry permits may be issued, there
          are  more  applicants than  there  are  entry
          permits to be issued, then the allocation  of
          entry    permits    within   that    priority
          classification shall be by lottery.  However,
          the  commission shall issue entry permits  to
          all  qualified  applicants in  that  priority
          classification if the total number of permits
          issued  for  the fishery does not exceed  the
          maximum  number of entry permits  established
          under  AS 16.43.240 for that fishery by  more
          than five percent or 10 permits, whichever is
          greater.
          
The  number of these entry permits is then brought into line with
the optimum number in the manner described below in Part III.B.3.

     35     The lottery provision applies when there are too many
applicants  within  a  given point level to precisely  reach  the
maximum number of permits and the issuance of permits to all  the
applicants at that point level would exceed the maximum number by
more than five percent or ten permits, whichever is greater.  See
AS 16.43.270(b).

     36    Under AS 16.43.250, CFEC is required to define priority
classifications  based  upon the hardship of  similarly  situated
applicants for permits.  Johns, 758 P.2d at 1262.  It  then  must
issue  permits  to  qualified applicants in order  of  descending
priority  classification,  until the  number  of  permits  issued
equals the maximum number . . . .  Id. (quoting AS 16.43.270(a)).
But  a  permit  cannot be denied to one who falls in  a  priority
category  which  would  suffer significant economic  hardship  by
exclusion  from  the fishery.  Id. (citing AS 16.43.270(a)).   In
Johns,  CFEC had determined that all applicants above  a  certain
point  level  would  suffer  significant  economic  hardship   if
excluded; therefore, CFEC was required to issue permits to all of
these  applicants  even though it surpassed the  maximum  number.
Johns, 758 P.2d at 1262-63.

     37    See Norval E. Nelson, Jr., CFEC 89-308-A at 18.

     38    Johns, 758 P.2d at 1265; AS 16.43.290.

     39    AS 16.43.290.

     40    20 AAC 05.1145.

     41    Johns, 758 P.2d at 1258.

     42    Lauth v. State, 12 P.3d 181, 184 (Alaska 2000).

     43    Johns, 758 P.2d at 1266.

     44     AS  16.43.330;  see also Vik v. Commercial  Fisheries
Entry Commn, 636 P.2d 597, 598 n.3 (Alaska 1981) (New permits may
be issued when the number of outstanding permits is less than the
optimum.).

     45    AS 16.43.330.

     46    Johns, 758 P.2d at 1264.

     47    Id. at 1263 n.8, 1266.

     48    Id. at 1264 (citations omitted).

     49     State v. Ostrosky, 667 P.2d 1184, 1189 (Alaska 1983);
see  also  id.  at  1190 (We conclude that  the  purpose  of  the
amendment to article VIII, section 15 was to grant the state  the
power   to   impose  a  limited  entry  system  in  any  fishery,
notwithstanding  any  state constitutional  provisions  otherwise
prohibiting  such a system.); id. (The authority to  impose  some
limited   entry  system  became  in  1972  a  part   of   Alaskas
constitution.  The amendment granting that authority  cannot,  in
turn, be challenged as unconstitutional under preexisting clauses
in the same document.).

     50    20 AAC 05.705(a)(1)(A).

     51     20  AAC  05.713(9).   There  is  no  dispute  Simpson
satisfied 20 AAC 05.713(9)(A) and (B).

     52     We  apply  a sliding scale approach for  interpreting
statutes.   Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d  1227,
1239  (Alaska 2003) ( The plainer the statutory language is,  the
more  convincing the evidence of contrary legislative purpose  or
intent  must be. ) (quoting Municipality of Anchorage v.  Suzuki,
41 P.3d 147, 150 (Alaska 2002)); Tesoro Petroleum Corp. v. State,
42  P.3d  531,  537 (Alaska 2002).  Simpson has  not  argued  any
legislative  or  regulatory intent contrary  to  the  regulations
plain meaning.

     53    Crivello v. State, Commercial Fisheries Entry Commn, 59
P.3d 741, 745-46 (Alaska 2002).

     54     Alaska Commercial Fisheries Entry Commn v. Russo, 833
P.2d 7 (Alaska 1992).

     55    Id. at 8.

     56     Id.  at 8-9 (finding trial courts reliance on  State,
Commercial  Fisheries  Entry Commn  v.  Templeton,  598  P.2d  77
(Alaska 1979), misplaced).

     57    Id. at 9.

     58    Id.

     59    Id.

     60    Id. at 9-10.

     61    20 AAC 05.703.