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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. May v. State, Commercial Fisheries Entry Commission (12/21/2007) sp-6214
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
| BERT E. MAY, | ) |
| ) Supreme Court Nos. S- 12451/12452 | |
| Appellant, | ) |
| ) Superior Court Nos. | |
| v. | ) 1 KE-05-00014 Civil |
| ) 1 KE-05-00054 Civil | |
| STATE OF ALASKA, | ) |
| COMMERCIAL FISHERIES | ) O P I N I O N |
| ENTRY COMMISSION, | ) |
| ) No. 6214 - December 21, 2007 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Trevor N. Stephens, Judge.
Appearances: Michael W. Holman, Ketchikan,
for Appellant. Vanessa M. Lamantia,
Assistant Attorney General, and Talis J.
Colberg, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
Bert May challenges the denial by Commercial Fisheries
Entry Commission (CFEC) of his applications for entry permits in
the Southern Southeast Inside sablefish (black cod) longline and
pot fisheries. May contends that CFEC erred in its
determinations that he was ineligible to apply for permits in the
fisheries and that he was not entitled to any points. He also
claims CFEC erred in determining the maximum number of permits
for both fisheries. CFEC was correct in determining that May was
not entitled to any points. But CFECs determination that May was
not eligible to apply for a permit in the longline fishery was
not supported by substantial evidence. Thus, May has standing to
challenge the maximum number in that fishery, and we remand for
consideration of that challenge. Because CFEC properly
determined that May was not eligible to apply for a permit in the
pot fishery, we affirm the superior courts decision upholding
CFECs determinations in the pot fishery.
II. FACTS AND PROCEEDINGS
In 1973 the Alaska Legislature enacted the Limited
Entry Act,1 which established the Commercial Fisheries Entry
Commission and charged it with the duties of regulating entry
into the commercial fisheries for all fishery resources in the
state and establishing priorities for application of the chapter
to the various commercial fisheries in the state.2 CFEC
determines the maximum number of permits for each fishery and
establishes qualifications for the issuance of permits.3
CFEC limits participation in the Southern Southeast
Inside longline and pot fisheries.4 CFEC established eighteen as
the maximum number of entry permits for the longline fishery and
three as the maximum number of entry permits for the pot fishery.5
CFEC distributes the permits on a point system that determines
applicants order of priority based on past participation in the
fishery and economic dependence on the fishery, as measured by
income dependence and vessel investment.6
In November 1987 Bert May applied for entry permits in
the longline and pot fisheries. May claimed a total of forty-
four points, including twenty-nine points for past participation
as a skipper in 1980 and 19817 and fifteen points for vessel
investment. May subsequently amended his claim of points to
include extraordinary circumstances points for 1982 through 1984,
so that his claim totaled eighty-five points.8 On both
applications May claimed eligibility to apply based on
participation in 1980. He submitted his own affidavit, along
with affidavits from members of his crew and from Freeman
McGilton, manager of the Annette Island Packing Company (AIPC) in
1980. Mays affidavit stated:
In February and March of 1980, I began
fishing for black cod using pots. We werent
catching enough fish using pots so I decided
to change to longline gear. We went back to
port and changed our gear to longline gear. .
. . [W]e went back to the Southern Clarence
Straight[ ] area and also fished outside
[Noyes] island. We took our black cod
longline catch to the cold storage area in
Metlakatla. . . . I specifically remember
selling these fish to Fre[e]man McGilton of
the Annette Island Cold Storage.
McGiltons affidavit also recalled Mays sale of longline-
caught black cod to AIPC. The affidavits from May and McGilton
characterized the market for black cod in 1980 as sour and very
poor. McGilton indicated that because the market was not viable,
AIPC bought the fish to sell to other fishermen as bait.
In letters dated February 24, 1988 and March 3, 1988,
CFEC informed May that it denied his applications. The letters
explained that CFEC found May ineligible to apply because it had
no records of his participation or making legal landings in this
fishery between 1975 through 1984.
In a letter dated March 29, 1988, May indicated his
desire to contest CFECs determinations and requested an
administrative hearing. On May 19, 1988 and November 4, 1988,
CFEC held hearings to evaluate Mays claims.
At the May 19, 1988 hearing, hearing officer David A.
Ingram read a handwritten note submitted by May9 and
characterized it as inconsistent with earlier . . . evidence.
May and a witness, Barry Bracken of the Alaska Department of Fish
and Game, testified regarding Mays request for a full hearing.
May testified that he was properly licensed and fished on the F/V
Cigale in 1980 for black cod and that he had sales in 1980 to
AIPC but was unable to produce fish tickets documenting the
sales. May stated that he started fishing with pots, but they
werent effective, so he gave up and we came back in, put on the
longline gear. May also testified that he had submitted the
undated handwritten letter to explain why he did not fish with
the Cigale after 1980. Barry Bracken testified about regulations
in the federal intrusion area, one of the areas May claims to
have fished. The hearing officer concluded by finding that there
was a genuine issue for purposes of granting a hearing, so the
hearings are granted on both these applications and youll be
issued your interim use permit.
On November 4, 1988, CFEC held another hearing to
consider Mays applications. As the hearing officer summarized,
May testified that he made landings in 1980 between Point Chacon
and Duke Island, directly West of West Rock Island. And then on
a curve, down through an area within the contiguous zone, but
outside the State waters . . . . Pretty much straight south of
Cape Chacon. May indicated the areas he fished with Xs on a map.
Some of these marks are south of the AB line the line
traditionally understood, although currently a subject of
dispute, to be the dividing line between U.S. and Canadian
waters, located at 54 degrees, 40 minutes latitude.
Bracken testified that the areas directly south of Cape
Chacon were included in the definition for the Southern Southeast
Inside area and indicated that anyone fishing during 1980 with a
statewide sable fish permit, in the area below the AB line would
have been fishing legally. Bracken affirmed the hearing officers
understanding that north of the [AB] line, any fishing he did in
[19]80 would have been illegal, south of the [AB] line it was
legal. Ron Berg, a biologist with the National Marine Fisheries
Service, testified that the State had authority in 1978 to
regulate fishing north and south of the AB line.
On December 31, 2002, the hearing officer denied Mays
entry permit applications. The hearing officer concluded that
May was not eligible to apply for a permit because his claims
that he participated in the fisheries in 1980 failed. The
hearing officer concluded that May probably caught black cod with
longline gear north of the [AB] line . . . [but not] south of
that line. He reasoned that Mays landings north of the [AB] line
were illegal since the area was not open at the time. The
hearing officer also concluded that May did not catch black cod
with pot gear anywhere in 1980 other than the outside federal
waters off Noyes Island. He also determined that May failed to
prove a commercial harvest in 1980, concluding that AIPC issued
no fish ticket . . . because Mr. May was not selling commercial
caught fish. He was merely reselling bait that he had earlier
purchased from AIPC or elsewhere. Before deciding that May had
not proved his eligibility to apply, the hearing officer also
noted Mays failure to produce a fish ticket and considerable
vagueness and uncertainty surrounding the way things worked in
1980. The hearing officer also found that May failed to prove
points based on past participation or extraordinary circumstances
and failed to prove investment in a vessel that he intended to
use in the fishery.
May requested administrative review of the denials. In
January 2004 CFEC issued its final decisions denying Mays
applications. CFEC admitted that it was a close question whether
Mays activity in 1980 rendered him eligible, but ultimately
affirmed the hearing officers determination that May was not
eligible to apply for a permit in either fishery.
CFEC also determined, that, even if May were eligible
to apply, he failed to demonstrate that he qualified for
sufficient points to be awarded a permit. CFEC rejected Mays
claim for past participation points based on extraordinary
circumstances in 1981-1984, concluding that Mays failure to
participate was the result of the failure of a business venture
due to the loss of the financial means to continue participation10
rather than a result of extraordinary circumstances. Finally,
CFEC held that May lacked standing to challenge the maximum
number of permits in the fisheries.11
May appealed CFECs final decision to the superior
court. Superior Court Judge Trevor N. Stephens upheld CFECs
decision. May appeals.
III. STANDARD OF REVIEW
In administrative appeals, we directly review the
merits of the agency decision.12 We have recognized four
principal standards of review for administrative decisions: the
substantial evidence test applies to questions of fact; the
reasonable basis test applies to questions of law involving
agency expertise; the substitution of judgment test applies to
questions of law where no expertise is involved; and the
reasonable and not arbitrary test applies to review of
administrative regulations.13
When reviewing an agencys interpretation of its own
regulation, we apply the reasonable basis standard.14 We defer to
the agency unless its interpretation is plainly erroneous and
inconsistent with the regulation. 15 When reviewing factual
findings, we apply the substantial evidence test.16 Substantial
evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion.17
IV. DISCUSSION
A. Longline Fishery
1. CFEC erred when it determined that May was not
eligible to apply for a permit in the longline
fishery.
An applicant must establish that he or she is eligible
to apply for a permit. To establish eligibility for the Southern
Southeast Inside longline fishery, an applicant must prove that
he or she harvested the fishery resource commercially while
participating in the fishery as the holder of a gear license . .
. and an interim-use permit . . . during at least one of the
calendar years 1975-1984.18 Participation is defined as:
Active engagement in a commercial fishing
operation that harvested and sold the
sablefish resource in the fishery for which
the applicant is applying if the sablefish
sales were in accordance with regulations
governing the sale or use of commercially
caught sablefish applicable at the time of
sale, including regulations regarding proper
completion of reports required of processors,
buyers, and fishermen.[19]
In sum, to establish eligibility an applicant must prove both a
commercial harvest and that participation took place within the
boundaries of the fishery while properly licensed.
May challenges CFECs determination that he was not
eligible to apply for a permit in the longline fishery. CFEC
based its determination on its findings that May did not
participate in the fishery and did not prove a commercial
harvest. May contests both findings.
May first contends that CFEC erred when it determined
that he did not participate in the fishery. This question turns
largely on where May fished in 1980 and whether he submitted
adequate documentation to support his claim of where he fished.
The affidavits from his crew and from May himself indicated that
they fished in Southern Clarence Strait and in the waters outside
Noyes Island.
During the November 4, 1988 hearing, May indicated the
areas he fished with an X. As CFEC summarized, the marks are all
in waters between 132 degrees 20' and 131 degrees 40' West
longitude, and 54 degrees 30' and 54 degrees 50' North latitude.
Barry Bracken had testified that although the waters above 54
degrees 40' North latitude (the AB line) were closed, the waters
below that line were open.20
In his decision, the hearing officer stated that [i]n
deciding where Mr. May probably fished in 1980, and with what
kind of gear, one has to choose which version of the events to
believe, his testimony at the hearing or his earlier statement,
which is in accord with the statements of his crew. The hearing
officer concluded:
[May] probably fished with longline gear in
the southern part of Clarence Strait,
probably north of the [AB] line and possibly
south of it, and then went back to the
federal waters outside Noyes Island. . . .
The record supports a finding that Mr. May
probably caught black cod with longline gear
north of the [AB] line (the federal intrusion
zone in the southern part of Clarence Strait)
but it does not support a finding that he did
so south of that line. . . . Unfortunately,
his landings north of the [AB] line were
illegal since the area was not open at the
time, and his landings in outside federal
waters were far beyond the area included in
Southeastern Alaska . . . .
In deciding that May was not eligible, the hearing officer also
noted considerable vagueness and uncertainty surrounding the way
things worked in 1980 . . . .
But as the hearing officer recognized, despite any
uncertainty, it was undisputed that any fishing May did south of
the AB line was legal. And May himself indicated that he fished
below the AB line. Mays earlier affidavit and those of his crew
confirm that he was fishing in the general geographic area.
Contrary to the hearing officers suggestion, these affidavits are
not inconsistent with a finding that May caught fish south of the
AB line. Although the affidavits do not give an exact latitude
sufficient to prove exactly how far south May fished, they do not
contradict a finding that May fished south of the AB line. Yet
despite the affidavits of Mays crew, Mays own testimony, and the
hearing officers note that May possibly fished south of [the AB
line], the hearing officer inexplicably concluded that May did
not catch black cod south of the AB line. Under these
circumstances, this determination is not supported by substantial
evidence.
Similarly, CFECs determination that May did not prove a
commercial harvest is based on speculation rather than
substantial evidence. In contesting CFECs finding, May points to
his own affidavit and testimony along with affidavits from his
crew and an AIPC manager indicating that he sold black cod and a
ledger sheet from AIPC as proof of his commercial sale. May
maintains that the hearing officers conclusion that May merely
resold bait to AIPC and sold black cod to other fishermen not to
AIPC amounts to speculation and theory that is not supported by
substantial evidence. We agree.
During his hearings, May testified that he sold
longline-caught black cod to AIPC in 1980. May also submitted
affidavits from members of his crew recalling the catch and sale
of black cod with longline gear, as well as an affidavit from
Freeman McGilton, manager of AIPC, who indicated that he bought
longline-caught black cod from May in 1980. May also submitted
an accounts receivable ledger from AIPC along with a letter
stating that it appears that Mr. May did sell black cod to
Annette Island Packing Company in [1980].
Despite this evidence, the hearing officer reasoned
that AIPC issued no fish ticket because Mr. May was not selling
commercially caught fish. He concluded:
The bait Mr. May sold to AIPC on May 13 was
probably part of the bait he purchased for
his pots before going out to federal waters
off Noyes Island with the [Cigale]. It
probably stayed frozen in the [Cigales]
freezer, and when his disastrous attempts to
fish for black cod ended, he was left with a
surplus of bait, which he then sold to (or
back to) AIPC. . . . It appears more likely
than not that Mr. May did not sell black cod
to AIPC in 1980 but, rather, sold a total of
691 pounds of black cod to someone, perhaps
another fisherman, and AIPC merely advanced
him the amount to be paid by the buyer.
But as May notes, this conclusion is based solely on speculation.
And this speculative conclusion contradicts the sworn affidavits
of May, his crew, and Freeman McGilton, manager of AIPC.21 Under
these circumstances, the hearing officers decision that May did
not commercially harvest sablefish with longline gear is not
supported by substantial evidence.
In upholding the hearing officers decision, CFEC noted
Mays failure to produce fish tickets and concluded that [s]uch an
unauthorized landing would not be entitled to credit toward
eligibility. In its brief before this court, CFEC does not argue
that the failure to produce fish tickets is dispositive indeed
such an argument would be inconsistent with CFECs own precedent.
In Krumal,22 Ayojiak,23 and Weis,24 CFEC found applicants eligible
despite a lack of fish tickets. In those cases, CFEC excused the
lack of fish tickets where applicants had explanations for their
inability to produce the tickets and where evidence supported a
finding that applicants had commercially harvested the resource
while properly licensed.
Though not dispositive, CFEC argues that Mays failure
to produce a fish ticket raises an inference that a landing may
not have occurred, or if it did occur, may have been unauthorized
and cannot be used to demonstrate eligibility.25 CFEC goes on to
contend that May failed to overcome this inference because he
never explained the absence of fish tickets and never proved a
commercial harvest.
But as we explained above, the record supports a
conclusion that May commercially harvested sablefish with
longline gear. Moreover, he did offer an explanation for the
lack of fish tickets. During his May 19, 1988 hearing, May
admitted that he was unable to produce fish tickets to support
the sale of sablefish in 1980. Mays counsel explained that May
attempted to obtain fish tickets from AIPC. However, he did not
succeed:
Freeman said well I dont know, lets go look
in the loft. So they went and looked in the
loft, and they said no, everythings down in
Seattle now, because thats where their home
office is. So they went to Seattle and they
said we dont know where they are. What we
have is accounts receivable sheets which they
evidently faxed up to Annette Island, so that
Annette Island could figure out where they
were.
Mays counsel explained that Annette Island has changed hands
three times since this thing was put up. Bert no longer really
fishes for them. So theyre not really helpful. Thus, contrary
to CFECs contention, May did offer an explanation as to why he
did not have fish tickets. Taken together, the affidavits and
testimony that May submitted to prove his commercial harvest,
along with this explanation for his failure to produce fish
tickets, overcome any negative inference resulting from Mays
failure to produce fish tickets. As a result, we conclude that
CFEC erred when it determined that May was not eligible to apply
for a permit in the longline fishery.
2. CFEC did not err in declining to award past
participation points based on extraordinary
circumstances.
CFEC determines applicants order of priority using a
points-based system that awards points for past participation in
the fishery and economic dependence on the fishery.26 CFEC
determined that, even if May were eligible to apply for a permit,
he had not established that he qualified for any points. May
contests this determination, claiming he is entitled to past
participation points based on extraordinary circumstances.
CFEC awards up to seventy points for past participation
in the fishery.27 To be eligible for skipper participation
points, an applicant must have commercially harvested at least
1,000 pounds of sablefish in the longline fishery and 2,000
pounds of sablefish in the pot fishery as a skipper.28 Skipper
participation points are available for the 1982 through 1984
seasons.29 In addition, those who are eligible for points for the
1982, 1983, or 1984 seasons may also claim points for the 1975
through 1981 seasons.30 May does not claim to have participated
in the years 1982 through 1984. As a result, he is not eligible
for past participation points unless he can demonstrate that
extraordinary circumstances prevented him from participating in
1982, 1983, or 1984.
CFEC regulations provide:
If extraordinary circumstances prevented an
applicant from participating in the fishery
in a given season, the commission will, in
its discretion, award the applicant those
points the applicant could reasonably have
claimed but for the extraordinary
circumstances. Extraordinary circumstances
include temporary illness or disability, the
loss of a vessel or equipment through
sinking, destruction, or extensive mechanical
breakdown, and other similar objectively
verifiable causes of non-participation.
Extraordinary circumstances do not include,
for example, voluntary or involuntary
retirement from the fishery, permanent
illness, permanent disability, or loss of the
financial means to participate in the
fishery.[31]
May contends that he proved extraordinary circumstances
when he testified that he was forced to sell the Cigale in 1981
when his marriage dissolved. He argues that this was a moral
obligation, that circumstances were sudden and beyond his
control. As a result, he concludes that extraordinary
circumstances prevented him from participating in 1982 and claims
that he should be awarded points for at least 1980 through 1982
in the pot fishery and for 1975 and 1980 through 1982 in the
longline fishery.
We hold that CFEC properly denied Mays claim for past
participation points. As May recognizes, 20 AAC 05.707(a)(1)(C)
and 20 AAC 05.709(a)(1)(C) require that an applicant be eligible
for points in 1982, 1983, or 1984 before he can claim points for
previous years. Mays only claim for points in 1982 through 1984
is his extraordinary circumstances claim, which CFEC properly
denied.
In Cleaver v. State, Commercial Fisheries Entry
Commission, we upheld the hearing officers determination that an
applicant with mechanical problems did not meet the three-part
test for extraordinary circumstances.32 This test requires an
applicant to show: (1) specific intent to participate; (2) that
extraordinary circumstances prevented participation; and (3) that
the applicant made all reasonable [or possible] efforts.33 We
noted that Cleavers lack of experience and appropriate equipment
[did] not constitute extraordinary circumstances.34
Similarly, May cannot show extraordinary circumstances.
As the hearing officer noted, May had another vessel the F/V
Satellite which he could have used in the years 1982 through
1984 but elected not to use. When asked at his November 4, 1988
hearing why he did not fish with the Satellite, May testified
that his wife was after half of any income that I had prior to
the divorce. So I couldnt do anything without giving her half.
When asked if there was any other reason, he testified that the
price was terrible. In other words, May made no showing of any
intent to participate, nor did he demonstrate how even if it
qualified as an extraordinary circumstance35 the sale of the
Cigale prevented him from using the Satellite. Because May does
not meet the test for extraordinary circumstances, CFEC properly
refused to award him past participation points.
3. CFEC did not err in declining to award vessel
investment points.
CFEC regulations provide that [a]n applicant may claim
15 points for investment, as of January 1, 1985, in a vessel that
the applicant used or intended to use in the Southern Southeast
Inside sablefish fishery.36 To be eligible for vessel investment
points, an applicant must demonstrate that the sum of the
applicants annual catch values for the years 1982-1984 is at
least $1,000.37 May argues that he should be granted fifteen
points for vessel investment because he still owned the
[Satellite] on and after the qualification date and, but for the
extraordinary circumstances . . . [that required the sale of the
Cigale,] he would likely have harvested at least $1,000 worth of
sablefish in 1982-1984.
But May points to no evidence that he used or intended
to use the Satellite in the fishery. Indeed, he testified that
the Satellite was seaworthy and that he still had some pots and
longline gear, yet he did not use the vessel in the fishery.
Instead, he suggests that he intended to use it but was somehow
prevented from doing so by the sale of the Cigale. But he does
not explain how that sale prevented him from using the Satellite
in the fishery. Mays own testimony that he did not use the
Satellite because of his divorce and the low price contradicts
his argument that he intended to use the Satellite in the
fishery. Based on this testimony, CFECs conclusion that May did
not use or intend to use the Satellite in the fishery in 1982
through 1984 is supported by substantial evidence. As a result,
CFEC properly determined that May was not entitled to fifteen
points for vessel investment.
4. CFEC erred when it determined that May lacks
standing to challenge the maximum number of
permits in the longline fishery.
CFEC may limit participation in a fishery by setting a
maximum number of permits.38 As we explained in Simpson v. State,
Commercial Fisheries Entry Commission, the maximum number must be
at a level no lower than the highest number of participants
during any one of the four years prior to limitation of the
fishery and must meet the Acts two legislative purposes of
enabling fishermen to receive adequate remuneration and
conserving the fishery. 39
May challenges CFECs determination that eighteen is
the maximum number of permits in the longline fishery. He claims
that CFEC failed to cite any evidence to support its
determination of the maximum number in the fishery and contests
CFECs determination that he does not have standing to challenge
the maximum number of permits in the longline fishery.
In its final commission decision, CFEC concluded that
May did not have standing to challenge the maximum number because
he was not eligible to apply for a permit and because he
qualified for zero points.40 But as explained above, we hold that
May was eligible to apply for a permit. And although we affirm
CFECs determination that May was not entitled to points, CFEC
does not refute Mays contention that even an applicant with zero
points could qualify for a permit if the maximum number were
higher. As a result, May has an interest in challenging the
maximum number of permits.
CFEC also maintains that May has the burden of proof in
challenging the maximum number. CFEC quotes our holding in
Simpson that a person challenging the maximum number has the
burden of showing that the number was an expression of whim
rather than a product of reason.41 It asserts that May failed to
meet this burden and argues that the regulation is presumed
valid. CFEC contends that May is attempting to shift the burden
of proof and is asking that this court indulge him in a search of
Commission records to support his proposition that the maximum
number should be higher.
CFEC is correct that we held in Simpson that an
applicant challenging a maximum number must show that the number
was the expression of whim.42 However, unlike in Simpson, where
CFEC had considered Alaska Department of Fish and Game comments
that this fishery was troubled and that even seventy-three might
be too large a number to promote effective management,43 CFEC
points to no documentation explaining its determinations in this
case. We therefore cannot conclude as a matter of law that Mays
contention is without merit. Because CFEC based its
determination below on its conclusion that May did not have
standing to challenge the maximum number, and because we hold
that he does have an interest in challenging the maximum number,
we remand for further consideration of his argument.44
B. Pot Fishery
1. CFEC did not err when it determined that May was
not eligible to apply for a permit in the pot
fishery.
To be eligible to apply for a permit in the pot
fishery, as in the longline fishery, an applicant must prove that
he or she harvested the fishery resource commercially while
participating in the fishery as the holder of a gear license . .
. and an interim-use permit . . . during at least one of the
calendar years 1975-1984.45 Because May bases his claim of
eligibility on his activities in 1980, his eligibility in the pot
fishery turns on his ability to demonstrate that he participated
in the fishery in 1980 and that he commercially harvested the
resource in that year.
May challenges CFECs determination that he did not
prove a commercial harvest using pot gear, as well as its
determination that he did not participate in the fishery in 1980.
On the question of commercial harvest, he argues that CFEC erred
in concluding that he did not prove a commercial harvest with pot
gear. He asserts that the hearing officers conclusion that he
did not harvest black cod is based on speculation and maintains
that the hearing officers finding that May did not sell black cod
should be reversed.
Although May testified at the hearing that he must have
sold black cod caught with pot gear, the affidavits he submitted
recall the sale of longline-caught black cod only. For example,
Larry Vandehey submitted an affidavit that he was a crewman with
May in 1980. He indicated that they began fishing for black cod
using pots:
Those efforts were not very successful so we
decided to change to longline gear. Once the
gear had been changed, we began fishing in
the Southern Clarence Straits area and just
outside of [Noyes] Island for black cod using
our longline gear. I remember that we sold
our longline caught black cod catch to
Annette Island Cold Storage that year.
Similarly, Freeman McGilton of AIPC indicated in his affidavit:
I specifically remember buying longline caught black cod from
Bert May . . . in 1980. None of the affidavits recalls the sale
of black cod caught with pot gear.46
Because May failed to produce fish tickets to
demonstrate sale of black cod caught with pots, he must overcome
the negative inference that results from his failure to produce
fish tickets. Unlike the longline fishery, where May had his own
affidavit, those of his crew, and that of a manager at AIPC to
support his claim of a commercial harvest of black cod with
longline gear, the only evidence he provided to prove a harvest
with pot gear is his statement years later that he must have sold
black cod caught with pots. In this case, that statement is
insufficient to overcome the negative inference that arises from
his inability to produce fish tickets.47 We therefore uphold
CFECs determination that May was not eligible to apply for a
permit in the pot fishery.48
2. May lacks standing to challenge the maximum number
in the pot fishery.
May also challenges the maximum number in the pot
fishery. But we need not consider an argument without a showing
of prejudice.49 Because we hold that May is not eligible for a
permit in the pot fishery, he cannot show that he is prejudiced
by any error in setting the maximum number; he is not entitled to
a permit regardless of the maximum number.
V. CONCLUSION
We hold that CFEC erred in determining that May was not
eligible to apply for a permit in the longline fishery, but
uphold its points determinations in that fishery. We REMAND the
case to CFEC for consideration of his argument regarding the
maximum number in that fishery. We AFFIRM the superior courts
decision upholding CFECs determination that May was not eligible
to apply for a permit in the pot fishery, and therefore do not
consider his arguments regarding the award of points or the
maximum number in that fishery.
_______________________________
1 See ch. 79, 1, SLA 1973; AS 16.43.010 .990 (2006).
2 Cleaver v. State, Commercial Fisheries Entry Commn, 48
P.3d 464, 465 (Alaska 2002) (citation omitted) (internal
quotations omitted).
3 AS 16.43.100(a)(6); AS 16.43.100(a)(9).
4 20 Alaska Administrative Code (AAC) 05.310(f)(2)
(2006).
5 20 AAC 05.320(e)(2). CFEC had previously determined
that twelve was the maximum number in the longline fishery, but
it amended the regulation to make eighteen the maximum number
after researching Mays petition for administrative review.
6 20 AAC 05.707; 20 AAC 05.709.
7 At a hearing on November 4, 1988, May clarified that he
wished to claim fourteen points for participation in 1980 and
fifteen points for extraordinary circumstances in 1981.
8 After his administrative hearing, May submitted
documentation claiming extraordinary circumstances points for
1981 through 1984 based on the unanticipated and unavoidable
[a]ctions of his former wife in forcing the sale of the vessel.
20 AAC 05.707(a) and 05.709(a) provide that a maximum of seventy
points are available for past participation. May claimed the
maximum of seventy points plus fifteen points for vessel
investment for a total of eighty-five points.
9 The handwritten, undated note stated:
In the spring of 1980 there was no market for
Black Cod, so after spending more than
$400,000.00 getting the [F/V Cigale] ready to
catch and freeze Black Cod, my wife could not
stand the pressure so I had to sell the
[Cigale] to settle the [divorce]. Now I am
getting a new boat and would like to try
again.
10 CFEC quoted 20 AAC 05.703(d), which provides that
[e]xtraordinary circumstances do not include . . . loss of the
financial means to continue participation in the fishery.
11 CFEC did note that it researched Mays claim that twelve
was not the appropriate maximum number in the longline fishery.
CFEC later changed the regulation to reflect a maximum number of
eighteen in that fishery.
12 Cleaver v. State, Commercial Fisheries Entry Commn, 48
P.3d 464, 467 (Alaska 2002).
13 Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
14 Simpson v. State, Commercial Fisheries Entry Commn, 101
P.3d 605, 609 (Alaska 2004).
15 Id. (quoting Lauth v. State, 12 P.3d 181, 184 (Alaska
2000)).
16 Cleaver, 48 P.3d at 467 (internal citation and
quotations omitted).
17 Id.
18 20 AAC 05.703(a); see also AS 16.43.260(a).
19 20 AAC 05.713(7).
20 Ron Berg testified that the federal fisheries
management plan at the time did not include waters east of 132
degrees 40' West longitude (the waters in which May indicated
that he fished) and claimed that the State could have asserted
management over the area both north and south of the 54 degree
40' line.
21 The affidavits explained that AIPC bought the fish to
be used as bait because the market for black cod in 1980 was not
viable.
22 CFEC 90-105 (1994) (finding applicant eligible despite
lack of fish ticket where evidence suggested a pattern of
problems with processor providing fish tickets).
23 CFEC 75-514 (1983) (finding applicant eligible despite
lack of fish tickets where Commission had recognized problems
with landing records in the area).
24 CFEC 00-038-A (2001) (finding applicant eligible
despite lack of fish tickets where there was evidence from
witnesses [of commercial harvest] and [applicant produced] the
weight slip for a delivery . . . by a diver who accompanied the
applicant).
25 The definition of participation under 20 AAC 05.713(7)
states that sales must be in accordance with regulations
governing the sale or use of commercially caught sablefish
applicable at the time of sale, including regulations regarding
proper completion of reports required of processors, buyers, and
fishermen. Regulations require submission of fish tickets within
seven days after landing. 5 AAC 39.130.
26 20 AAC 05.707.
27 20 AAC 05.707(a); 20 AAC 05.709(a).
28 20 AAC 05.707(a)(1)(A); 20 AAC 05.709(a)(1)(A). The
regulation continues:
A rebuttable presumption exists that the
applicant was a crewmember and not a skipper
for that season if the applicant had only one
day with landings in the fishery and the
sablefish poundage from that days landings
represented less than 15 percent of the total
sablefish poundage delivered from the vessel
during that season in the fishery.
29 20 AAC 05.707(a)(1)(B); 20 AAC 05.709(a)(1)(B).
30 20 AAC 05.707(a)(1)(B); 20 AAC 05.709(a)(1)(B).
31 20 AAC 05.703(d).
32 48 P.3d 464, 468-70 (Alaska 2002).
33 Id.
34 Id. at 469.
35 As CFEC noted in its final decision, the extraordinary
circumstances provision specifically excludes the loss of the
financial means to continue participation in the fishery.
36 20 AAC 05.707(b)(3) (emphasis added).
37 20 AAC 05.707(b)(1); 20 AAC 05.709(b)(1).
38 AS 16.43.240 (2006).
39 Id. at 611 (quoting Johns v. Commercial Fisheries Entry
Commn, 758 P.2d 1256, 1263 (Alaska 1988)).
40 In its final decision, CFEC noted that it did further
research in response to Mays claim and determined that eighteen
(not the previously adopted number of twelve) was the highest
number of vessels that participated in the four years prior to
limitation.
41 101 P.3d at 611 (quoting Johns, 758 P.2d at 1263).
42 Id.
43 Id. at 608.
44 We note that although May has the burden of
establishing that the maximum number was an expression of whim
rather than the product of reason, this burden does not relieve
CFEC from its obligation to respond to requests for information
regarding the establishment of the maximum number.
45 20 AAC 05.703(a); see also AS 16.43.260(a).
46 May maintains that the affidavits do not reference
black cod caught with pot gear because he submitted those
affidavits in support of his longline interim-use permit. But he
failed to produce similar affidavits in support of his pot
permit, despite having had ample opportunity to do so when he
petitioned for administrative review of the hearing officers
decision.
47 Because participation and commercial harvest are both
required for eligibility, and because we uphold CFECs
determination that May did not prove a commercial harvest with
pot gear, we need not consider his argument that CFEC erred when
it determined that he did not participate in the fishery in 1980.
48 Because we hold that May was not eligible to apply for
a permit in the pot fishery, we need not consider his argument
that CFEC erred in determining that he was entitled to no points
for vessel investment or past participation.
49 See Younker v. Alaska Commercial Fisheries Entry Commn,
598 P.2d 917, 920-21 (Alaska 1979) (holding that we would not
consider an argument that preferential treatment of gear license
holders discriminated against an applicant where he had not shown
injury from that preference); see also Johns v. Commercial
Fisheries Entry Commn, 758 P.2d 1256, 1262-63 (Alaska 1988)
(holding that error in setting a maximum number lower than the
historic high did not require reversal where applicant was not
prejudiced).
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