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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Trademark Shellfish, LLC v. State, Dept of Fish and Game (11/23/2007) sp-6204
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
| ALASKA TRADEMARK | ) |
| SHELLFISH, LLC, | ) Supreme Court No. S- 12120 |
| ) | |
| Appellant, | ) Superior Court No. 1KE-00-211 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, DEPART- | ) No. 6204 November 23, 2007 |
| MENT OF FISH AND GAME; | ) |
| COMMISSIONER FRANK RUE; | ) |
| DOUG MECUM; SCOTT | ) |
| MARSHALL; and JOHN DOES 1-10, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Michael A. Thompson, Judge.
Appearances: Bruce B. Weyhrauch, Law Office
of Bruce B. Weyhrauch, LLC, Juneau, for
Appellant. Joanne M. Grace, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Alaska Trademark Shellfish, LLC (ATS), applied to the
State of Alaska for aquatic farming permits with concomitant
rights to harvest wild geoducks. After the State of Alaska
denied ATSs application, ATS claimed that because the state had
promised ATS that it could harvest wild geoducks, the state was
obligated to reimburse ATS for its expenses in seeking the
permits. The superior court rejected this claim because it
concluded that the state defendants were entitled to immunity.
Because we conclude that no evidence would permit an inference
that the state actually promised ATS that it could harvest wild
geoducks, we affirm.
II. FACTS AND PROCEEDINGS
Alaska Trademark Shellfish applied for state permits
early in 1999 to allow it to engage in geoduck farming.1 ATS
assertedly believed that these permits would allow it to harvest
wild geoducks located on its farm sites; it therefore
investigated farm sites with large stocks of wild geoducks. When
the Alaska Department of Fish and Game (ADF&G) had not acted on
ATSs permit applications by February 2000, ATS sued the state and
requested an injunction, damages, and declaratory relief. ADF&G
thereafter denied ATSs permit applications because ATS refused to
agree not to harvest wild geoducks. ATS appealed the denial to
the superior court, asking the court to order ADF&G to issue the
permits and to rule that the permits allowed ATS to harvest wild
geoducks. The superior court upheld ADF&Gs decision to deny the
permits, reasoning that the Alaska Constitution barred ADF&G from
granting aquatic farmers the exclusive right to harvest wild
geoducks. ATS appealed to this court; we affirmed on the
alternative ground that ADF&G lacked the statutory authority to
grant aquatic farmers the exclusive right to harvest wild stocks.2
After we decided the permit appeal, ATS returned to the
superior court and argued at a status hearing that it had a
viable claim to recover the money it spent in reliance on ADF&Gs
alleged promises that ATS could harvest wild geoducks. The state
defendants moved for declaratory judgment, contending that ATSs
claim was not viable because ATS failed to adequately plead and
preserve the claim, and because ADF&G and its officials were
immune from suit. The superior court entered a declaratory
judgment for the state defendants; it held that ADF&G and its
officials were immune from suit under AS 09.50.250 and the
doctrine of official immunity.
ATS appeals.3
III. STANDARD OF REVIEW
Although ATSs appeal challenges a declaratory judgment,
because the declaratory judgment was in effect a complete summary
judgment, we will apply the summary judgment standard of review.4
We review a grant of summary judgment de novo.5 Summary judgment
is proper if there is no genuine factual dispute and the moving
party is entitled to judgment as a matter of law.6 We can also
affirm a grant of summary judgment on alternative grounds, based
on any matter appearing in the record.7
IV. DISCUSSION
ATS raises four issues on appeal. First, it argues
that it adequately pleaded and preserved its damages claim.
Second, it argues that it presented sufficient evidence to
support an estoppel claim. We treat this as a claim for
promissory estoppel.8 Third, it claims that the court erred in
applying the doctrines of sovereign and official immunity.
Fourth, it requests that we reverse the superior courts award of
attorneys fees to the state.
For the purpose of this appeal, we assume but do not
decide that ATS adequately pleaded and preserved its damages
claim. Because we conclude that the record contains no evidence
permitting an inference that the state actually promised ATS that
it could harvest the wild geoducks, complete summary judgment in
favor of the state defendants was proper. We therefore do not
need to address the issues of sovereign immunity and official
immunity.
A. ATS Cannot Prove Promissory Estoppel Because There Was
No Actual Promise.
Four elements are necessary to prove a claim of
promissory estoppel: (1) an actual promise that induces the
action or forbearance; (2) the action or forbearance was actually
foreseen or reasonably foreseeable; (3) the action or forbearance
amounted to a substantial change of position; and (4) enforcement
of the promise is necessary in the interest of justice.9 If
there is no actual promise that induces the action or
forbearance, there can be no promissory estoppel.10 As the state
argues, the actual promise must be definitive, must be very
clear, and must use precise language.11 An actual promise is
analytically identical to the acceptance of an offer in contract
law.12 This means that an actual promise must manifest an
unequivocal intent to be bound.13
ATS argues that ADF&G made an actual promise that ATS
could harvest and sell standing stocks of geoducks located on its
aquatic farm sites. ATS identifies three statements that it
considers unequivocal promises to that effect. The state
responds that although some rights to wild stock passed with
stock acquisition permits (which are issued separately from
aquatic farming permits), those permits limited the farmers use
of the stock to providing brood or seed stock, or for growing out
stock with controlled, enhanced cultivation.14
We will examine in turn the three statements identified
by ATS.
The first statement was made by ADF&Gs mariculture
coordinator and was disseminated at an aquatic farming convention
in 1996. It reads:
[A stock acquisition permit] authorizes you
to acquire the target species you want to
farm and transfers the ownership to you. The
plant or animal acquired becomes private
property at that point. It is the document
that takes the resource out of the public
domain and becomes yours to culture and sell.
ATS interprets this statement as a promise that a farmer may
either culture or sell wild geoducks. The state has two
responses. First, it argues that this statement merely explains
what rights will pass with a stock acquisition permit, and
asserts that it is not a promise that farmers may obtain such
permits for the purpose of harvesting and selling wild stocks for
profit without cultivation. (Emphasis in original.) Second, it
emphasizes that a farmer who obtains a stock acquisition permit
can only use wild stocks for the purposes allowed under the terms
of the permit.
We agree with the state. As we previously observed in
Alaska Trademark Shellfish, LLC v. State (ATS I), [p]ertinent
statutes do not authorize a farmer to use standing, wild stocks
of geoducks for harvest and sale without having first propagated,
farmed, or cultivated the wild geoducks.15 Because ADF&Gs first
disputed statement does not promise farmers that they can acquire
stock acquisition permits for the purpose of commercial harvest,
and because farmers were required to culture and sell wild stocks
if they obtained such a permit, this statement is not a promise
that farmers could harvest wild geoducks for commercial purposes
even if they successfully acquired a stock acquisition permit.
The second disputed statement comes from a 1999 letter
from ADF&Gs commissioner to shellfish growers: The department
believes that property rights to standing stocks pass to the
permittee with the lease, operations permit[,] and stock
acquisition permit. ATS does not analyze this statement in much
detail, saying only that it was a reiteration of the first
statement. The state argues that [t]his letter merely states
that if and when all of the necessary permits are in place, the
standing stocks belong to the permittee. The commissioner did
not assert, much less promise, that a stock acquisition permit
would allow an applicant to acquire wild stocks for direct
harvest and sale.
We are again convinced by the states argument. The
commissioners letter does not state that an aquatic farmer is
entitled to a stock acquisition permit if he or she wishes to
harvest standing wild stocks; it merely states that undefined
property rights to the stocks pass to the farmer once he or she
obtains the necessary permits. The limits on those property
rights have already been discussed above.
The third disputed statement is contained in a 1999
ADF&G internal email that states: Simply put, the standing stock
(pre-existing wild stock) on a leased and permitted aquatic farm
site becomes the property of the aquatic farm site operator, to
be disposed of in any legal manner. As the state argues, this
statement could not be interpreted by a reasonable fact finder to
be a promise made to ATS because the statement was contained in
an ADF&G internal email sent in September 1999, months after ATS
had filed its permit applications. An actual promise must be
made to the promisee, and it must be made before the promisee
either acts or suspends action.16
Promissory estoppel enable[s] the courts to enforce
contract-like promises made unenforceable by technical defects or
defenses.17 Because there is no evidence that would allow a
reasonable fact finder to infer that ADF&G promised ATS that
geoduck farmers could obtain permits for the purposes of
harvesting standing wild stocks, we conclude as a matter of law
that ATS has no cause of action for promissory estoppel. The
state was therefore entitled to complete summary judgment on the
alternative ground that ADF&G never promised ATS the right to
harvest wild geoducks on its farm sites.18
Further, given the nature of the ADF&G statements and
the common property clauses in the Alaska Constitution, no
reliance on the statements would be reasonable.19
V. CONCLUSION
We therefore AFFIRM the judgment on the alternative
ground that ADF&G never made an actual promise to ATS.
_______________________________
1 The geoduck is an unusually large, slow-growing species
of clam that commands high market prices. Alaska Trademark
Shellfish, LLC v. State (ATS I), 91 P.3d 953, 954 (Alaska 2004).
2 Id. (holding that ADF&G lacks statutory authority to
grant aquatic farmers exclusive rights to harvest wild geoducks
on their farm sites).
3 The appellees are the State of Alaska, ADF&G, and
various state employees and officials. We refer to them
collectively as the state, ADF&G, or the state defendants.
4 Cf. Greater Anchorage Area Borough v. City of
Anchorage, 504 P.2d 1027, 1030-31 (Alaska 1972) (holding that
judgment can be final although superior court does not call it
final judgment).
5 McCormick v. Reliance Ins. Co., 46 P.3d 1009, 1011
(Alaska 2002).
6 Id.
7 Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)
(observing that appellate court can consider any matter appearing
in record to affirm lower courts decree).
8 Although ATS argues in its opening brief that it was
entitled to equitable estoppel, the state correctly contends in
its appellees brief that ATS is actually seeking promissory
estoppel. As we have previously held, the primary difference
between promissory and equitable estoppels is that the former is
offensive, and can be used for affirmative enforcement of a
promise, whereas the latter is defensive, and can be used only
for preventing the opposing party from raising a particular claim
or defense. Simpson v. Murkowski, 129 P.3d 435, 440 n.18 (Alaska
2006) (quoting Mortvedt v. State, Dept of Natural Res., 858 P.2d
1140, 1143 n.7 (Alaska 1993) (citation omitted)).
9 Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1284
(Alaska 1985) (applying Restatement (Second) of Contracts 90
(1979); State v. First Natl Bank, 629 P.2d 78, 81 (Alaska 1981);
1A Arthur L. Corbin, Corbin on Contracts 200, at 215-21 (1963)).
10 First Natl Bank, 629 P.2d at 81.
11 Simpson v. Murkowski, 129 P.3d 435, 442-43 (Alaska
2006) (holding that governors letter proposing phased elimination
of longevity bonuses was not actual promise because it was not
sufficiently definite).
12 Brady v. State, 965 P.2d 1, 6, 11 (Alaska 1998)
(holding that state did not promise to sell timber even though
state official said we will begin preparation of a sale in the
area requested upon receipt of the presale deposit).
13 Id. at 10.
14 See AS 16.40.120 (2004) (governing aquatic stock
acquisition permits); AS 16.40.100 (2004) (governing aquatic
farming permits).
15 Alaska Trademark Shellfish, LLC v. State (ATS I), 91
P.3d 953, 955 (Alaska 2004).
16 See Zeman, 699 P.2d at 1284 (applying Restatement
(Second) of Contracts 90 (1979); First Natl Bank, 629 P.2d at
81; 1A Arthur L. Corbin, Corbin on Contracts 200, at 215-21
(1963)). Because the Restatement uses the language promisor and
promisee, the promise must be made to the person who subsequently
acts or suspends action, unless the Restatements third-party
analysis applies. Because the promise must induce the action or
forbearance, it must precede the action or forbearance.
17 Brady, 965 P.2d at 10.
18 Because ATS has failed to state a claim for promissory
estoppel, we do not need to consider whether the state and its
employees are immune from suit. ATS also argues that the
superior courts award of attorneys fees against ATS must be
overturned because on remand ADF&G will no longer be the
prevailing party. Our rejection of ATSs liability claim disposes
of this argument.
19 Alaska Const. art. VIII, 1.
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