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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

Alaska Trademark Shellfish, LLC v. State, Dept of Fish and Game (11/23/2007) sp-6204, 172 P3d 764

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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
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

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

          EASTAUGH, Justice.
          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.
          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
          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
          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
     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
          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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