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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Copeland v. State, Commercial Fisheries Entry Commission (09/21/2007) sp-6170

Copeland v. State, Commercial Fisheries Entry Commission (09/21/2007) sp-6170, 167 P3d 682

     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,


) Supreme Court No. S- 12275
Appellant, )
) Superior Court No.
v. ) 3AN-05-06568 CI
ENTRY COMMISSION, ) No. 6170 September 21, 2007
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Fred Torrisi, Judge.

          Appearances:   Michael  Hough,   Homer,   for
          Appellant.    Laura  C.  Bottger,   Assistant
          Attorney  General, Anchorage,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for

          Before:    Fabe,  Chief  Justice,   Matthews,
          Bryner,  and Carpeneti, Justices.  [Eastaugh,
          Justice, not participating.]

          FABE, Chief Justice.

          This  appeal  arises  out of the  Commercial  Fisheries
Entry  Commissions  (CFECs) denial of  a  limited  entry  fishing
permit to Steve Copeland.  Copeland applied for and was denied  a
limited  entry  permit in the Prince William  Sound  Purse  Seine
salmon  fishery.   He appealed the denial to the superior  court,
which affirmed CFECs decision to deny the permit.
          When  the superior court acts as an intermediate  court
of   appeal,   we   independently  review  the  merits   of   the
administrative    decision.1    When   reviewing    an    agencys
interpretation  of  its own regulation, we apply  the  reasonable
basis   standard.2    We   defer  to  the   agency   unless   its
interpretation  is  plainly erroneous and inconsistent  with  the
regulation.  3   When  reviewing  a  decision  based  on  factual
findings, we apply the substantial evidence test.4
          After  a  careful  review  of the  parties  briefs  and
arguments,  we  concur in the superior courts determination  that
CFECs  regulatory interpretations were reasonable  and  that  its
factual findings were based on substantial evidence.  Because the
courts  thoughtful  decision  on appeal  correctly  upheld  CFECs
determination, we adopt the superior courts decision, attached as
an  appendix,  in its entirety.  Because that decision  does  not
separately address Copelands claim for past participation  points
as  distinct  from  his  claim for special  circumstances  income
dependence points, we briefly address that issue.
          CFECs   regulations  provide  for  an  award  of   past
participation   points  based  on  a  showing  that   unavoidable
circumstances  prevented an applicant from participating  in  the
fishery.5  Copeland contends that CFEC abused its discretion when
it  refused  to award him past participation points  for  crewman
participation in 1970.  He claims he did not participate in  1970
due  to  domestic problems and appears to suggest that he  should
have been granted unavoidable circumstances points.  In its final
decision, CFEC noted that Copeland had offered testimony that  he
did  not participate in 1970 because of a poor prediction for the
fishery  and because he was doing well in another fishery.   CFEC
reasoned that Copelands decision not to participate may have been
a  sound business decision but concluded that Copeland failed  to
establish   that  circumstances  beyond  his  control   prevented
          In  Alaska  Commercial Fisheries  Entry  Commission  v.
Russo,   we  noted  that  the  unavoidable  circumstances  clause
requires  both  uniqueness and unavoidability.6  Based  on  these
requirements,   we   upheld   a  CFEC   interpretation   limiting
application of the clause to cases where fishermen are  prevented
from  fishing by circumstances beyond their control.7  In Younker
v.  Alaska Commercial Fisheries Entry Commission, we upheld CFECs
denial  of  unavoidable circumstances points to an applicant  who
did  not participate in a gillnet fishery.8  We reasoned that the
applicants circumstances were not unavoidable where he elected to
pass  up  gillnetting because purse seining was more  lucrative.9
The  applicants choice may have been sensible, but  was  not  the
only one available to him.10
          As  in  Younker, the record in this case suggests  that
Copeland   made  a  sensible  but  avoidable  decision   not   to
participate in 1970.  Copeland testified in 1976 that he did  not
participate  because  it  was just a  real  poor  forecast.   The
hearing  officer asked if there were any other reasons, to  which
Copeland responded I did . . . very good gillnetting late on  the
flats.  .  .  .  and,  as a rule when its a  good  summer  season
gillnetting, you can make more money doing that than crewing on a
seine  boat[.]  Copeland offered additional  testimony  regarding
          1970 during his second hearing, in January 1981.  He explained
his lack of participation in 1970 as follows:
          Well,  for one reason my wife was here and  I
          was gillnetting summer reds on the flats .  .
          .  and I was doing quite well and my wife was
          fishing with me.  I didnt live in Cordova  at
          the  time. . . . I would have had to  .  .  .
          [send]  my wife home [and] . . . .  it  would
          have put a lot of strain on our relationship.
          .  .  .  I  was  doing quite well gillnetting
          summer reds on the flats and 1970 was a  very
          poor seine season.
Based  on  Copelands  testimony in  1976  and  1981,  substantial
evidence  supports  CFECs determination  that  Copeland  was  not
prevented from fishing by circumstances beyond his control.
          For  this  reason and those contained in  the  superior
courts   decision  on  appeal,  we  AFFIRM  the  superior  courts
STEVE COPELAND,               )
          Appellant,               )
     v.   )
     Appellee.           )    Case No. 3AN-05-6568 CI
                         )    CFEC No. 90-127 A

                       Decision on Appeal1
     It  used  to  be that anyone with the gear and  an  attitude
could  drop  a  net and seek to harvest salmon in Alaska  waters.
That changed in 1973, with passage of a law that limited entry to
those  who  could  prove  their past participation  and  economic
dependence  upon  a  specific  fishery.2   A  point  system   was
developed3  to  implement these criteria, based on  ones  fishing
history  in the years 1960-72.  Steve Copeland came up one  point
short  of the 17 necessary to obtain a Prince William Sound purse
seine  permit,  and  so appeals.  He argues  primarily  that  the
Commission  erred in its application of the special circumstances
regulation,4 and ignored the mandate of an earlier superior court
Introduction to limited entry and Mr. Copelands fishing history
     There  are reasons, not all of them the best, for  why  this
case  took  30 years to reach this point.  The point  system  was
designed to measure the hardship that a gear license holder would
suffer from exclusion from the fishery  those fishing as crew  do
not  need a limited entry permit5  and so was complex by  nature,
and  particularly  so in this case.  Points for  the  then-recent
years  of 1971 and 1972 counted more than 1969-70, which in  turn
offered more possible points than earlier years.6  But the Prince
William  Sound purse seine fishery was mostly closed in 1972,  so
the  Commission didnt award points to anyone for that  year,7  on
the  theory  that  this  would be fair,  since  it  impacted  all
applicants  equally.  Mr. Copelands argument, at least  in  part,
and Judge Madsens 1980 opinion, is that this didnt quite work  in
his  case,  because  of  the way the Commission  interpreted  its
regulations.   A  closer look at his actual  fishing  history  is
necessary  to  understand this argument; there are  several  good
statements  of  this history in the record.  (I see  no  need  to
review  the  procedural history in depth, as  it  is  recited  at
several places in the record and set forth in the briefing.)
     Mr.  Copeland  fished  in both the  purse  seine  and  drift
gillnet fishery with his father in 1963 and 1964, starting around
     the time he turned 16.  (Applications for each of these fisheries
are  distinct; Mr. Copeland first held a gear license  for  drift
gillnetting in 1965, and he did receive an entry permit into this
fishery.)  He also crewed in the purse seine fishery in 1965  and
1966.   After  the  1966  season, Mr.  Copeland  and  Martin  Van
Slageren got together and purchased an old wooden boat,  so  they
could  purse  seine together in the years to come,  although  Mr.
Copeland didnt actually hold a gear license in his own name until
1973.  The two fished together in 1967, but not in 1968, when Mr.
Copeland crewed on board another boat.  They then fished together
again  in  1969,  and Mr. Copeland was awarded  points  for  half
ownership of the boat.  His partner received the extra point  for
holding  the gear license, and no points were awarded anyone  for
income dependence in that year.
     In  1970 Mr. Copeland did not participate in the purse seine
fishery and did not receive any points.  The reasons for this are
discussed extensively in the record, and, unfortunately  for  Mr.
Copeland, this is the year that the Commission chose to award the
points  that  couldnt be claimed in 1972 because the fishery  was
essentially closed in that year.  He sold his seine in 1970,  and
mostly gillnetted the following year, but he did receive a  point
for  his  1971  participation as a crewman  in  the  purse  seine
fishery.   Appellant  was also able to up  the  three  points  he
received for being half owner of the boat he owned with  Mr.  Van
Slageren  to  six, based on his full ownership of another  skiff,
and  he successfully defended an attack on the four points he had
for  the  lack of availability of alternative occupations,  which
turned  on  exactly  where he called home on December  31,  1972.
Resolution of these issues also contributed to some of the  early
delay  in  this  matter,  as  did  turnover  among  CFEC  hearing
officers,  the first appeal to superior court, and reconciliation
with  the various supreme court decisions that were issued during
this  period.  As noted earlier, the cumulative effect of all  of
this  was  to leave Mr. Copeland one point shy of the  17  points
ultimately determined to be necessary to qualify for a  permanent
entry  permit  into the PWS purse seine salmon fishery.   Interim
use  permits are issued to applicants whose cases are still under
review and claiming sufficient points to qualify.
Summary of Mr. Copelands claim for special circumstances points
     For the years in question, there is little doubt that a high
percentage  of Mr. Copelands income was derived from  the  Prince
William Sound salmon fishery.  But a combination of circumstances
his participation in the gillnet fishery, the intermittent nature
of  his  partnership, the fact that he didnt purse seine in  1970
and  the effective closure of the fishery in 1972  have left  him
without  any  points  in this category.   This,  he  asserts,  is
unfair; It is not even arguable that [his] income dependence  was
realistically  reflected8 by his income dependence  in  1970  and
1971.9  Accordingly, he reasons, he must be entitled to at  least
one  point  for income dependence, and of course that is  all  he
needs to obtain a permit.
     Mr.   Copeland  asserts  that  he  is  not  seeking   income
dependence  points for 1970 or 1971, nor for any  other  specific
year  or  years.   He also states that he is not challenging  the
     denial of points for all applicants in 1972, nor that Rose10 or
Kalmakoff11  were  wrongly decided.  So while it  seems  that  he
wants  to  hang  his  hat  entirely  on  the  broad  language  of
subsection  .630(b)(2), I feel it necessary  to  go  through  the
cases in a more traditional manner.  Before doing so, however, it
makes  sense  to  start  with  Judge Madsens  decision,  and  Mr.
Copelands contention that the CFEC was estopped from relitigating
the  issue of whether he is entitled to income dependence  points
under subsection .630(b)(2).12
Did the 1980 court decision mandate granting income dependence points?
     Because  appellant couched the issue in terms  of  estoppel,
the  Commission responded in kind with dicta of dubious value  in
this  context.13  But Mr. Copeland presented no authority at  all
in  his  reply  brief, saying only that the CFECs argument  would
require a conclusion that Judge Madsens decision had no weight or
effect,  except to the extent that CFEC at least  did  conduct  a
hearing,  even  though it then proceeded to ignore everything  he
said in his opinion.
     But the key word may have been contained in the language Mr.
Copeland  quoted in his opening brief  the issue must  have  been
resolved by final judgment on the merits (emphasis added).  Judge
Madsen did not retain jurisdiction, and he remanded the matter to
the  Commission, which means that the decision was not final  and
could not have been appealed.14  Now that it is back in court, it
is  somewhat analogous to Wolff v. Arctic Bowl, Inc.,15 where the
supreme  court  sustained  a trial judges  authority  to  reverse
himself  after  discretionary review of an order granting  a  new
trial was denied, holding that the earlier decision wasnt final.
     The doctrine of the law of the case is
     not  an  inexorable command.  It merely  expresses  the
     practice  of courts generally to refuse to reopen  what
     has  been decided, not a limit to their powers.  Though
     the  power  exists to reopen the points of law  already
     decided,  it  is  a  power which  will  necessarily  be
     exercised  sparingly, and only in a clear  instance  of
     previous  error, to prevent a manifest injustice.   The
     doctrine of law of the case is normally a salutary  one
     in  the  interest of economy of effort and of narrowing
     down the issues in successive stages of litigation .  .
     . .[16]
     Judge  Madsen could have reversed the Commission and ordered
that a permit be issued, but he didnt do that.  The order to hold
a  hearing  would be meaningless if the outcome was foreordained;
it  is  important to scrutinize the instructions of the court  on
remand.17   Those instructions were that Mr. Copeland  should  be
given  a hearing at which he can make a special showing of income
dependence.   And, as the Commission points out, there have  been
a host of arguably applicable supreme court decisions in the past
25  years.   Under  these circumstances, the Commission  was  not
foreclosed  from concluding that Mr. Copeland failed  to  make  a
special  showing,  and  this  court should  review  the  decision
independently.  This does not, of course, preclude  the  adoption
of  all  or  a  part  of Judge Madsens reasoning  on  the  income
     dependence issue.
Evolution of the special circumstances doctrine
     Although  subsection .630(b)(2) has been in place since  the
beginning,  the Commissions reasoning in those years started  and
ended  with  the  idea  that you cant limit  gear  if  you  start
awarding  all  sorts  of points to people  who  didnt  have  gear
licenses.   Accordingly, the point system  was  weighted  heavily
with  this  bias;  crew members didnt need permits  to  crew,  so
income dependence points were only awarded to those who held gear
licenses  in  the  most recent years.18  What  the  CFEC  saw  in
subsection  .630(b)(2) was a way to take care of a  gear  license
holder   who   broke   a   leg   in  1972,   or   otherwise   had
uncharacteristically low earnings that season, even though he  or
she  normally  made most of the years earnings in the  designated
fishery, as well as other such special circumstances.
     But  Judge  Tom  Stewart, upon hearing the plea  of  Phillip
Templeton,  looked  at  the  language  more  broadly,  and   with
reference  to the purpose of the legislation, which  included  an
admonition  to limit entry without unjust discrimination.19   Mr.
Templeton  fished  as an equal partner with his  brother.   While
Phillip  Templeton had the gear license in 1970, 1973  and  1974,
his  brother  had  the license in 1969, 1971  and  1972,  and  so
received  all  the income dependence points and consequently  the
permit.20    Judge  Stewart  ruled  that  subsection   .630(b)(2)
required  that  Phillip, too, receive income  dependence  points,
starting a new view of the regulation, with applicants looking to
the broad statement that it was designed to govern all situations
not  specifically  covered by the regulations proper,21  and  the
Commission  trying to limit the case to its facts of a  perfectly
equal partnership spanning every year from 1969-74.
     In   Chocknok   v.   State,   Commercial   Fisheries   Entry
Commission,22  the  Commission  sought  to  narrow  the  possible
beneficiaries  by  using a five-part partnership  test,  but  the
Alaska  Supreme  Court  found  that  this  discriminated  against
partners  who were married to each other, and it again  expressed
its  disapproval  of the arbitrariness inherent in  awarding  one
business  partner  a  permit because he, rather  than  the  other
partner, happened as a matter of chance to hold the gear  license
while  the  other did not.23  Once again, however, the court  was
looking  at a partnership (two, actually) which ran right through
the relevant years, including 1971 and 1972.
     A  third case,24 decided between Templeton and Chocknok, did
involve  a  fisherman who didnt participate in 1971 or 1972,  and
the  courts  response  was  a lot like Judge  Madsens  two  years
earlier.   Lyle  Jones  had fished in the Southeast  purse  seine
fishery for 22 seasons, from 1949-1970, but didnt in 1971-72, and
so  was awarded no points for income dependence.  The court cited
the  broad language contained in Templeton, and remanded  to  the
Commission,  with instructions for it to set forth its  reasoning
in the event it concluded that no points should be awarded.
     Jones was unusual in that the reason he said he couldnt fish
in 1971 was because his boat had sunk in 1966,25 but there was no
issue  relating  to the holding of a gear license,  as  there  is
here.   In  1985,  the  court declined to  extend  the  reach  of
     subsection .630(b)(2) to crew members who were not partners.26
But  the  brief discussion in Jones was not mentioned in  Justice
Rabinowitzs more thoughtful opinion three years later, leaving us
with somewhat of a grey area.
     Artemie Kalmakoff fished as a gear license holder from 1960-
66,  and  as  a  crewman from 1967-72,27 and his application  for
special  circumstances points was summarily rejected, while  Lyle
Jones, whose boat sank in 1966 and who stopped fishing altogether
in 1970, saw his case remanded for consideration under subsection
.630(b)(2).28  The Kalmakoff court struggled to balance  fairness
with the Commissions fundamental mission, acknowledging that  its
determination that, other things being equal, those who held gear
licenses in 1971 and 1972 were more likely to suffer hardship  by
exclusion  than those who didnt, was fundamentally  true.29   The
court therefore concluded that the regulations favoring 1971  and
1972  gear  license  holders  are consistent  with  the  statutes
purpose,  noting that nothing in Templeton said otherwise.30   As
noted earlier, the court failed to mention the Jones opinion from
three  years  earlier,  and  the  implication  in  Jones  that  a
sufficient reason for not fishing in those years might fit within
the  special circumstances regulation no doubt spawned  the  many
pages  contained  in  this  record  addressing  exactly  why  Mr.
Copeland didnt in 1970.
     Another  piece  of  the puzzle is the decision  in  Rose  v.
Commercial  Fisheries  Entry  Commission,31  decided  two  months
before Jones.  This was also an appeal from Judge Madsen, another
Prince  William  Sound purse seine case, in which  the  applicant
crewed  from  1969-71, and then bought a boat in  preparation  to
start operating in his own gear in the ill-fated 1972 season.  As
we  know,  there  was  no real season that  year,  and  Mr.  Rose
encountered  the same difficulty as Appellant; income  dependence
points  were based on 1970-71 rather than 1971-72.32  The  Alaska
Supreme  Court  affirmed  Judge Madsens decision  sustaining  the
CFECs  denial  of income dependence points because the  applicant
didnt  have a gear license in 1970 or 1971.33  Justice Rabinowitz
dissented, taking the broad view that Mr. Rose was in fact income
dependent, and that subsection .630(b)(2) should be construed  to
grant him the points based on his 1971 income, even though he was
but  a crewman in that year.34  (Mr. Copeland fished as a crewman
in  1971,  and in any event disavows the argument that  Rose  was
wrongly  decided  or  that he is entitled  to  income  dependence
points in 1970 or 1971.)
     So   by  1985  we  have  the  following  interpretations  of
subsection .630(b)(2):
     1.        One  who fished as an equal partner and is  income
               dependent cannot be denied points based solely  on
               the fortuitous circumstances of which one held the
               gear license in two given years;35
     2.        If  an  applicant wasnt a partner and hadnt fished
               as  a gear license holder prior to 1973, no income
               dependence points are available, even if plans had
               been  laid to do so in 1972 when the fishery didnt
               open;36 but
     3.        An income dependent applicant, who had long held a
     gear license   and   planned  to  fish  in  1971  and   1972
               but  didnt, is entitled to have the CFEC  evaluate
               his claim.37
     The  question  is,  where  does  this  leave  an  applicant,
generally  income  dependent on fishing, who didnt  hold  a  gear
license  prior  to  1973, but was a partner  in  1967  and  1969,
allegedly planned to fish as a partner in 1970 but didnt,  crewed
in  1971  and  couldnt accrue any points in 1972 because  of  the
closure?   Is  he  like Irven Rose, out of luck  because  of  the
combination  of his past history and the closure, or Lyle  Jones,
where  the  Commission was required to take a hard  look  at  the
reasons  he  didnt  fish in the year in which  income  dependence
points  were awarded?  Mr. Copeland of course argues the  latter,
that  his  are  particularized  occurrences  which  affect  [him]
uniquely;  that  he  has  made  the  requisite  showing  of  non-
     Before going on to consider whether Mr. Copeland did make  a
showing  of   unique circumstances that prevented him from  purse
seining  in 1970 as a partner or gear license holder, one  caveat
should  perhaps  be  given.  Appellant has  stressed  his  income
numbers in a general way, repeating that he needs only one  point
for  income  dependence to secure a permit, and  emphasizing  the
broad  language of subsection .630(b)(2), that his income is  not
realistically  reflected by the years 1970 and 1971.   While  the
opinion  in  Jones  arguably supports Mr. Copelands  position  in
part,  the Commissions point that Jones was remanded only because
it  had  failed  to  consider the evidence proffered  at  all  is
correct.39   There is the statute, the regulation and  the  cases
that interpret these; there is no authority for the notion that a
fisher  who  gets close, who is generally income  dependent,  who
almost  qualifies,  has  some sort  of  aggregate  claim.40   Mr.
Copelands  attempt  to  create such  an  entitlement  is  plainly
foreclosed by the cases cited.  Nor, given the courts explanation
of  Jones  in  Dominish, can it be said that Judge Madsens  order
remanding the case to the Commission was solely to determine  the
number of points to be awarded.
Were the Commissions findings about 1970 based on substantial evidence?
     Remand  was  ordered  in  Jones  for  consideration  of  the
particular  factors that caused [him] not to participate  in  the
Southeast  fishery during 1971 and 1972.41  Under  Mr.  Copelands
theory, and Judge Madsens decision, this was also required  here.
The Commission made findings of fact on this issue, which are  to
be  sustained  if supported by substantial evidence,42  which  is
such  evidence that a reasonable person might accept as  adequate
to  support a conclusion.43  A reviewing court is not to  reweigh
the evidence or choose between competing inferences, but just  to
decide  whether  a reasonable mind could accept the  findings  in
light of the entire record.44
     Findings were first made by hearing officer Frank Glass, but
Mr.  Copeland  notes  that  he supplemented  the  record  with  a
critical affidavit from his ex-wife upon administrative review by
the  Commissioners.   Judge Madsen seemed to assume  that  family
problems  was a sufficient answer to what happened in  1970   the
issue  was not directly before him  and Mr. Copeland argues  that
     this is correct.  His wife supports that reason, while at the
same  time noting that he did not have a seine boat ready to  go,
so  that  he would have had to crew on another boat, and that  he
had  had a falling out with the skipper with whom he intended  to
fish.   He  gillnetted that year, and had  a  good  season.   Mr.
Copeland, however, summarizes her position as  you go seining and
we are divorced.
     Appellant makes this last observation in the context of  his
request  for a past participation point for 1970.  While one  may
question  whether  this is a sufficient reason   should  one  get
rural  domicile  points  if a spouse insists  on  living  in  Los
Angeles?  there is more to the income dependence claim than this.
As   we   have   seen,   subsection  .630(b)(2)   also   requires
participation  as a gear license holder or partner,  and  so  Mr.
Copeland must show that aspect of his claim as well, in the  face
of the fact that he had no boat ready to go, crewed the following
year  and spent the 1970 season on a drift gillnet boat.   As  he
says, there is rarely only one answer to a question.
     And,  indeed, Mr. Copeland answered the question many times.
At  the 1976 hearing, he noted that by 1970 Wed pretty well given
up  on the boat.  We both decided the best thing to do is to sell
the boat for what we could get out of it.  We sold the seine that
year  and  split the money. . . .  He went on to explain  why  he
didnt operate gear in the purse seine fishery the following  year
as well.  But he also testified that purse seining would have put
a  strain  on  his  marriage, and that,  coupled  with  the  poor
prediction  for  the purse seiners, led to his decision;  he  did
very  well gillnetting.  It was also apparent that his first boat
was not nearly seaworthy during this period.
     The  hearing officer discussed this evidence and  found  the
earliest  testimony the most convincing.  He concluded  that  the
choice between purse seining and gillnetting in 1970 turned on an
ordinary   biological  variable  that  affected  all  prospective
participants,  and did not amount to an unavoidable circumstance.
The  seine  had been sold, the boat was in poor repair,  and  the
hearing  officer concluded that Mr. Copeland had not  established
that   he   ever  intended  to  purse  seine  that   year.    The
Commissioners  came  to  the same conclusion,  quoting  both  Mr.
Copelands testimony and his wifes affidavit.  While Appellant may
argue  with the law and the relevance of the findings, they  were
adequate  to  support  the conclusion, and  therefore  constitute
substantial evidence.
     Mr.  Copeland didnt purse seine at all in 1970, and he didnt
fish  as  an  operator of purse seine gear in 1971.  By  1972  he
didnt  own a seine, his seine boat was unseaworthy and hed  never
used  his skiff for seining.  So even viewing this case from  the
Jones  perspective,  as  opposed to comparing  it  to  Rose,  the
special circumstances claim fails for lack of proof, both  as  to
the  reason  he  didnt  purse seine  in  1970,  and  his  alleged
intention to do so as a partner or gear license holder.
Does the denial of income dependence points violate the Constitution?
     Appellant  asserts in his opening brief that the Commissions
decision denying all income dependence points denied him both due
process and equal protection of the law.  He correctly states the
framework used in deciding due process claims,45 but he does  not
address  the  risk  of erroneous deprivation  engendered  by  the
present  procedure, nor say anything at all about the governments
interest in the procedures used.
     As  mentioned earlier, Mr. Copeland disavowed several of the
more  likely  arguments,  presumably  in  recognition  that  they
wouldnt  quite  carry the day, or had previously  been  rejected.
But  the  broad reading of subsection .630(b)(2) that he suggests
is  simply  too  amorphous to apply, and he offers no  substitute
procedures that would allow the Commission to seek to identify in
some  objective manner a prioritized ranking of applicants.46   I
agree with the CFEC that Appellants argument on this point is  so
cursory as to be deemed waived.47
     Similarly, his equal protection analysis attempts to  do  an
end  run  around  the  decision in Rose.  The  Rose  court  cited
Apokedak I on the futility of seeking a perfect point system;  if
such   were  required,  there  would  be  few  laws  establishing
classifications   that   would  sustain   an   equal   protection
challenge.48   Mr.  Copeland simply was not an  established  gear
license  holder  in the purse seine fishery; he  was  a  two-time
partner,  who decided to gillnet in 1970 and fished a crewman  in
1971.   He  was  on  the edge of an imperfect  classification,  a
modified  system of grandfather rights,49 and even an application
of  the special circumstances regulation failed to push him  over
the  top.  You cant read the Apokedak and Rose decisions  without
concluding that Appellants equal protection argument has  already
been  made  and  rejected  in  this context.   The  gear  license
requirement and the point system advance the Limited  Entry  Acts
legitimate purposes, and the classifications made in  it  bear  a
fair and substantial relation to those purposes.50
     Mr.  Copeland also cites Deubelbeiss v. Commercial Fisheries
Entry  Commission,51  a  decision in which  a  Cook  Inlet  drift
gillnetter,  who was also a point short, successfully  challenged
the point scheme for the availability of alternative occupations.
The  Commission  had  used  census districts  to  roughly  divide
applicants into groups by population, but Mr. Deubelbeiss  argued
that  Ninilchik,  a small village halfway between  Kenai/Soldotna
and  Homer,  shouldnt be lumped in with these larger communities,
and  the  supreme  court  agreed.  Justice Rabinowitz  dissented,
wondering  what  better  device than census  districts  might  be
postulated,52   and  Justice  Compton  concurred   on   statutory
grounds.53   To  the  extent that Mr.  Copeland  argues  that  AS
16.43.010,  requiring  that  entry  be  limited  without   unjust
discrimination,  sounds like equal protection,  he  has  a  valid
point,  but this does not obviate the fact that his argument  has
already been rejected by the court.  Again he seeks to recast  it
here  in a broader form, drawing from the language of the earlier
superior court decision, but I discern no new grounds for  relief
on this basis.
     Mr.  Copeland  also  makes a claim  for  past  participation
points in 1970.  The Alaska Supreme Court long ago held that  the
unavoidable  circumstances regulation54 is not as  broad  as  the
special circumstances rule,55 which has already been discussed at
length.  While one can readily understand why Mr. Copeland  chose
to  gillnet  in 1970, there was simply nothing unavoidable  about
the choice,56 and no error by the CFEC in rejecting the claim.
     The  decision of the Entry Commission is affirmed.  The file
will remain in Dillingham through March 31.
     Dated: March 6, 2006

                              /s/  Fred Torrisi
                              Superior Court Judge

     1     Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

     2      Simpson  v. State, Commercial Fisheries Entry  Commn,
101 P.3d 605, 609 (Alaska 2004).

     3     Id.  (quoting Lauth v. State, 12 P.3d 181, 184 (Alaska

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

     5      20  Alaska  Administrative  Code  (AAC)  05.630(a)(5)

          [I]f  unavoidable  circumstances  exist  such
          that an applicants past participation in  the
          fishery  is  not realistically  reflected  by
          points awarded for past participation for the
          years 1960  1972, the commission may award an
          applicant up to a maximum of 16 points upon a
          special showing of past participation  during
          the years 19601972 . . . .
     6    833 P.2d 7, 9 (Alaska 1992).

     7    Id. at  9-10.

     8    598 P.2d 917, 923 (Alaska 1979).

     9    Id.

     10    Id.

1      This   decision  has  been  edited  to  comply  with   the
technical  rules of the Alaska Supreme Court, and  most  internal
citations have been omitted.

     2     AS  16.43.010 et seq.; see especially  .140 and  .250.
For history and background of the program, see Isakson v. Rickey,
550   P.2d  359  (Alaska  1976),  superseded  on  other  grounds,
Commercial Fisheries Entry Commn v. Apokedak, 606 P.2d 1255, 1261
(Alaska 1980); Rose v. Commercial Fisheries Entry Commn, 647 P.2d
154  (Alaska 1982); and State v. Ostrosky, 667 P.2d 1184  (Alaska

     3    See 20 AAC 05.600 et seq.

     4    20 AAC 05.630(b)(2).

     5    AS 16.43.140(a) & (b).

     6    20 AAC 05.630.

     7    20 AAC 05.650(a).

8    20 AAC 05.630(b)(2).

     9    He quotes Copeland v. Alaska Commercial Fisheries Entry
Commn, 3AN-79-2207 CI (Alaska Super., August 13, 1980).

10   Rose, 647 P.2d 154.

     11    Kalmakoff v. State, Commercial Fisheries Entry  Commn,
693 P.2d 844 (Alaska 1985).

     12    Copeland cites Chugach Elec. Assn v. Regulatory  Commn
of Alaska, 49 P.3d 246, 250-51 (Alaska 2002).

     13    The  Commission relies on United States v.  Vulcanized
Rubber  &  Plastics Co., 178 F. Supp 723, 726  (E.D.  Pa.  1959),
affd,  288  F.2d 257 (3d Cir. 1961), cert. denied, 368  U.S.  821

     14    Alaska  Rule of Appellate Procedure 202(a);  City  and
Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska  1979),
disavowed on other grounds, State v. Alex, 646 P.2d 203, 208  n.4
(Alaska 1982).

     15   560 P.2d 758, 763 (Alaska 1977).

     16    Watts  v.  Seward Sch. Bd., 421 P.2d 586, 618  (Alaska
1966) (Rabinowitz, J., concurring in part and dissenting in part)
(internal  citations and quotations omitted),  rehg  denied,  423
P.2d 678 (Alaska 1967), vacated, 391 U.S. 592 (1968), reinstated,
454 P.2d 732 (Alaska 1969), cert. denied, 397 U.S. 921 (1970).

     17   Cf. Johns Heating Service v. Lamb, 129 P.3d 919 (Alaska

18   See generally Kalmakoff, 693 P.2d at 851-52.

     19    AS  16.43.010(a);  State, Commercial  Fisheries  Entry
Commn v. Templeton, 598 P.2d 77, 81 (Alaska 1979).

     20   Templeton, 598 P.2d at 79.

     21   Id. at 81.

     22   696 P.2d 669 (Alaska 1985).

     23   Id. at 674.

     24    Jones  v.  Commercial Fisheries Entry Commission,  649
P.2d 247  (Alaska 1982).

     25   Id. at 249, 251; see Brandal, 128 P.3d at 737 n.22.

26    Kalmakoff,  693  P.2d  at 850-55;  see  also  Brandal,  128
P.3d at 737 n.23.

     27   Kalmakoff, 693 P.2d at 846.

     28   Jones, 649 P.2d at 251.

     29   Kalmakoff, 693 P.2d at 853.

     30   Id. at 854.

     31   647 P.2d 154 (Alaska 1982).

     32   Id. at 157-58.

     33   Id. at 163.

     34   Id. at 164-65 (Rabinowitz, J., dissenting).

     35   Templeton, 598 P.2d at 81.

     36   Kalmakoff, 693 P.2d 844; Rose, 647 P.2d 154.

37   Jones, 649 P.2d 247.

     38   Rose, 647 P.2d at 161.

     39    See  Dominish  v.  State, Commercial  Fisheries  Entry
Commn, 907 P.2d 487, 493-94 (Alaska 1995).

     40   Id.

     41   Jones, 649 P.2d at 251; see also Dominish, 907 P.2d at

     42    Leuthe v. State, Commercial Fisheries Entry Commn,  20
P.3d 547, 550 (Alaska 2001) (citing Jones, 649 P.2d at 249 n.4).

     43   Crivello v. State, Commercial Fisheries Entry Commn, 59
P.3d  741,  745 (Alaska 2002) (citing Commercial Fisheries  Entry
Commn  v.  Baxter, 806 P.2d 1373, 1374 (Alaska 1991)); Yahara  v.
Construction  &  Rigging, Inc., 851 P.2d 69,  72  (Alaska  1993);
Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978).

     44   Doyon Universal Servs. v. Allen, 999 P.2d 764, 771
(Alaska 2000).

     45    See  Brandal, 128 P.3d 732, 738 (Alaska 2006)  (citing
Mathews v. Eldridge, 424 U.S. 319 (1976)).

     46   Rose, 647 P.2d at 159.

     47    Dominish (citing Gates v. City of Tenakee Springs, 822
P.2d 455, 460 (Alaska 1991)).

     48    Rose, 647 P.2d at 160 (citing Apokedak, 606 P.2d 1255,
1267 (Alaska 1980)).

     49   Apokedak, 606 P.2d at 1267.

     50   Id. at 1268.

     51   689 P.2d 487 (Alaska 1984).

     52   Id. at 490-91.

     53   Id. at 491-94.

     54   20 AAC 05.630(a)(5).

     55   Rose, 647 P.2d at 160-62.

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

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