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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.
