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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

May v. State, Commercial Fisheries Entry Commission (12/21/2007) sp-6214, 175 P3d 1211

     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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