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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilber v. State, Commercial Fisheries Entry Commission (06/27/2008) sp-6278

Wilber v. State, Commercial Fisheries Entry Commission (06/27/2008) sp-6278, 187 P3d 460

     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

GLENN A. WILBER, )
) Supreme Court No. S- 12420
Appellant, )
) Superior Court No. 1SI-05-00087 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
COMMERCIAL FISHERIES ) No. 6278 June 27, 2008
ENTRY COMMISSION, )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska,  First Judicial District,  Sitka,
          Larry C. Zervos, Judge.

          Appearances:  Michael A. D. Stanley,  Juneau,
          for  Appellant.  Thomas E. Lenhart, Assistant
          Attorney   General,  and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee.

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

          FABE, Chief Justice.
          MATTHEWS, Justice, concurring.
I.   INTRODUCTION
          Glenn  Wilber challenges the Commercial Fisheries Entry
Commissions  (CFECs) limited entry regulations for the  Southeast
Alaska  Geoduck1  Fishery.   Wilber  received  a  nontransferable
permit  for  the  fishery but he desires a  transferable  permit.
Wilber   maintains   that   CFEC   regulations   measuring   past
participation  in  the  geoduck  fishery,  and  particularly  the
agencys combination of two seasons into one year for the purposes
of  assessing hardship, fall outside of the scope of the  agencys
authority  under  the  Limited Entry Acts  initial  permit  issue
provisions.  Because the CFEC regulations reasonably  respond  to
          the unusual circumstances of a mid-year moratorium on geoduck
harvesting,  and in light of the broad discretion  afforded  CFEC
under  the Limited Entry Act for determining hardship, we  affirm
the agencys decision to deny Wilber a transferable permit.
II.  FACTS AND PROCEEDINGS
          Geoducks were first commercially harvested in Southeast
Alaska in the early 1970s.  The fishery remained small throughout
the  1970s, but grew significantly throughout the 1980s,  to  the
point  that  in  1990 participants petitioned the CFEC  to  limit
entry  into  the fishery.  CFEC denied this petition,  and  three
others  that followed in 1993, 1996, and 1998.  Though it  denied
each  petition,  CFEC undertook an analysis  of  the  fishery  to
determine whether entry should be limited.
          Currently, the season for geoduck runs from  October  1
to  May  31.  The Alaska Department of Fish and Game manages  the
fishery  by  opening  different  locations  at  different   times
throughout the season.
          In  1996 the Alaska Legislature passed House Bill 547;2
the bill imposed a four-year moratorium on entry into the geoduck
and  other Southeast Alaska dive fisheries.3  The moratorium took
effect  July 1, 1996, and reached the expiration date set by  the
legislature  on July 1, 2000.4  The bill directed CFEC  to  study
whether  it was necessary to limit entry into the geoduck fishery
under  the Limited Entry Act (AS 16.43.01016.43.990).5  The  bill
largely  prohibited  new  divers from entering  the  fishery  and
allowed  past  participants to keep harvesting geoduck  under  an
interim  use  permit  system.6   The  bill  also  directed   that
participation  during the moratorium could not be  considered  as
evidence  of  past  participation in  any  limited  entry  system
following the moratorium.7
          In  1998  and  1999 CFEC held a series of  meetings  in
Southeast Alaska to solicit public comment about whether to limit
entry  into the geoduck fishery and possible ways to limit  entry
if  necessary.   In  November 1999 CFEC adopted  regulations  for
limiting  entry into the geoduck fishery.8  The regulations  took
effect  on  the last day of the moratorium, June 30, 2000.9   The
regulations established an eligibility period of January 1,  1992
to  July 1, 1996.  CFEC set the maximum number of permits for the
geoduck fishery at 104.10
          After  limiting entry into the fishery,  CFEC  proposed
regulations  to  establish a priority classification  system  for
distributing  the  104  permits in September  2000.   The  system
awarded points based on the following scale:

                                           
Year                 Pounds / Year         Points
                                           
1995 to July 1, 1996 400 pounds or more    10
                     At least 100 pounds,  7
                     but less than 400     
                     pounds                3
                     Less than 100 pounds
                                           
1994                 800 pounds or more    9
                     At least 400 pounds,  6
                     but less than 800     
                     pounds                3
                     Less than 400 pounds
                                           
1993                 2,700 pounds or more  8
                     At least 1,200        5
                     pounds, but less      
                     than 2,700 pounds     3
                     Less than 1,200
                     pounds
                                           
1992                 5,200 pounds or more  7
                     At least 2,200        5
                     pounds, but less      
                     than 5,200 pounds     2
                     Less than 2,200
                     pounds

CFEC  took  public  comment  on the  regulations  from  September
through  October.  All divers with a history of participating  in
the fishery were given notice of the point system.  CFEC received
comments  from  approximately  forty  divers,  including  Wilber.
Neither Wilber nor any other diver objected to combining the 1995
and 1996 years catch totals.
          CFECs point system awarded points for participation  in
the  calendar  years of 1992, 1993, 1994, and 1995 combined  with
the  first  half of 1996.11  The system awarded more  points  for
participation in recent years.  CFECs system awarded a maximum of
twenty-four  points.12  CFECs point system did not evaluate  past
participation   and  economic  dependence  separately   as   CFEC
considered the factors to be linked in the geoduck fishery.  CFEC
reasoned  that  [y]early harvest totals . . .  provide  the  best
information regarding participation and economic dependence.
          CFEC  combined 1995 with the first half of 1996 because
the  majority  of  geoduck landed in 1996 were caught  after  the
start  of  the  moratorium13 and thus could not be considered  in
CFECs  point system.  Additionally, CFEC believed that the  small
number  of geoduck caught in the beginning of 1996 made  it  more
reasonable  to  combine that year with 1995.  There  was  only  a
brief  four-day opening of the fishery in January 1996 in Symonds
Bay resulting in a harvest of 9,708 pounds of geoduck by nineteen
divers.    In  comparison,  104  divers  harvested  approximately
250,000  pounds in 1995, and after the moratorium began, some  93
divers harvested over 190,000 pounds in the remainder of 1996.
          CFEC  adopted its proposed point system on November  7,
2000.   It  also promulgated regulations establishing significant
and  minor  hardship  levels as required by AS 16.43.250(b)(c).14
CFEC  set  the significant hardship level at nineteen to  twenty-
four points.15  CFEC set the minor hardship level at zero to  ten
points.16  Applicants classified at the significant hardship level
automatically received transferable permits while those below the
minor  hardship level threshold received nontransferable permits.
Those  applicants  receiving between eleven and  eighteen  points
were formally unclassified but nevertheless received transferable
permits.
          Wilber  began  harvesting geoduck  in  1974.   However,
Wilber  did  not participate during the limited entry eligibility
period  until  1995.   Wilber harvested  1,849  pounds  during  a
January  1995  opening,  1,842  pounds  during  an  October  1995
opening, and 1,433 pounds during a January 1996 opening.   Wilber
applied  for  a limited entry permit for the geoduck  fishery  in
March  2001.   Wilber  claimed ten points, the  maximum  possible
points given that he only participated in the fishery in 1995 and
          1996 and prior to 1992.  CFEC classified Wilbers application at
ten  points,  leaving Wilber one point short  of  the  regulatory
threshold for receiving a transferable permit.
          Wilber requested a hearing on his application on May 6,
2001.   A CFEC hearing officer denied Wilbers request, concluding
that  it  did  not  raise any issues requiring  a  hearing.   The
officer treated Wilbers request as a constitutional challenge  to
the  geoduck  limited  entry regulations  and  issued  a  written
decision  finding  the regulations constitutional.   The  officer
affirmed CFECs classification of ten points.
          Wilber  hired  an  attorney after  his  request  for  a
hearing  was  denied, and he timely petitioned for administrative
review of the hearing officers decision.  Wilbers petition sought
the  commissioners  review of the geoduck fishery  limited  entry
regulations, arguing that 20 AAC 05.808 exceeded CFECs  statutory
authority under AS 16.43.250(a)(2).17  Wilber also argued that the
regulations violated the Alaska Constitutions guarantee of  equal
protection.   Wilber asked that the system be revised  to  fairly
weight  1996 participation, asserting that when this was done  he
would  qualify  for  sufficient points for a freely  transferable
permit.
          The   commissioners  denied  Wilbers   petition.    The
commissioners  decision noted that Wilbers narrow  interpretation
of  AS 16.43.250(a)(2) did not account for the provisions use  of
the  phrase  when reasonable for the fishery.  The  commissioners
saw  the  agencys use of an eighteen-month period as a  pragmatic
solution  to the legislatures imposition of a moratorium  in  the
middle of a calendar year.  They reasoned that using an eighteen-
month period made sense in light of th[e] statutory mid-year cut-
off,  very  short  January season, low participation,  and  small
poundage.    The  Commission  noted  that  none  of  the   divers
commenting  on  the  proposed  and final  regulations   including
Wilber   had  objected to this time period.  The Commission  thus
held   that   its   regulations  did  not  violate   the   Alaska
Constitutions equal protection clause.
          The  Commission pointed out that, even if Wilber had  a
valid  criticism of the CFEC regulation, he failed  to  offer  an
alternative  point scheme that would result in  him  getting  his
desired  relief  of a transferable permit.  The  Commission  also
noted  that changing the regulations as proposed by Wilber  would
necessitate  adjusting  all  of the existing  applications;  this
could  leave  Wilber with the nontransferable permit  he  started
with.   The  Commission explained that the agency had  considered
using  seasons  as  suggested by Wilber in his  appeal,  but  had
rejected that alternative in a desire to satisfy the legislatures
preference  for  measuring  eligibility  by  calendar  years   as
expressed  in  the  dive fishery moratorium  legislation  and  AS
16.43.250.   The  Commission concluded that  changing  the  point
system  at  such a late stage in the process would be detrimental
because  it  would  require recalculation of  numerous  completed
applications very near the end of the permit process.
          Wilber appealed the Commission decision to the superior
court.   The  superior  court determined  that  the  phrase  when
reasonable  for  the fishery in AS 16.43.250(a)  recognizes  that
          CFEC has a detailed knowledge about the biology, the history, the
politics,  the  mechanics, and probably several  aspects  of  the
fishery.   The  superior  court  also  ruled  that  weighing  the
hardship  factors  requires  CFEC  to  make  fundamental   policy
choices.   The  superior  court  concluded  that,  given   agency
expertise and fundamental policy concerns driving the regulation,
Wilber  failed  to  demonstrate that CFECs  regulation  lacked  a
reasonable basis in the law.  The superior court therefore denied
Wilbers appeal and affirmed the Commissions decision on July  25,
2006.
          Wilber appeals.
III. STANDARD OF REVIEW
          We  review  an  agencys regulation for  whether  it  is
consistent  with  and  reasonably  necessary  to  implement   the
statutes  authorizing  [its]  adoption.18   Toward  this  end  we
consider:   (1) whether CFEC exceeded its statutory authority  in
promulgating  the  regulation;  (2)  whether  the  regulation  is
reasonable  and  not  arbitrary; and (3) whether  the  regulation
conflicts  with  other  statutes or constitutional  provisions.19
When  the  interpretation of a statute or other question  of  law
implicates agency expertise as to complex matters or  as  to  the
formulation  of  fundamental policy,  we  defer  to  the  agencys
interpretation so long as it has a reasonable basis in the law.20
We have held that CFECs implementation of the hardship provisions
of  the  Limited Entry Act entails both administrative  expertise
and the formulation of fundamental policy.21
IV.  DISCUSSION
          Wilber argues that AS 16.43.250(a)(2) requires CFEC  to
employ  a  calendar  year of 365 days when  it  defines  priority
classifications   for  limiting  entry  into  Alaska   fisheries.
Alternatively,  Wilber argues that even  if  CFEC  can  adopt  an
eighteen-month qualification period, the 1995-1996  participation
period  that it adopted for the geoduck fishery is arbitrary  and
unreasonable  because  it collapses two  seasons  into  a  single
qualification period and gives insufficient consideration to  the
most recent participants in the fishery.  We disagree.
     A.   CFEC  Acted  Within  Its Statutory  Authority  when  It
          Combined   the  Pre-Moratorium  1996  Geoduck   Fishery
          Opening and the 1995 Calendar Year.
          
          Wilbers  central  argument in this  case  is  that  the
legislatures use of the term year in AS 16.43.250 limits CFEC  to
measuring past participation in twelve-month increments.   Wilber
argues that the meaning of the term year is plain, and that  CFEC
has  failed  to  offer  any  evidence of  legislative  intent  or
judicial construction that would permit departing from that plain
meaning.  Wilber argues that CFECs authority to choose among  the
AS  16.43.250 hardship factors does not include the authority  to
modify   those  factors.   Finally,  Wilber  argues  that   CFECs
interpretation  of  year in this case is contrary  to  its  other
regulations and normal practice.
          CFEC  maintains  that  year  is  subject  to  different
interpretations, many of which exceed 365 days.  CFEC argues that
it also has broad discretion to assess hardship as required by AS
          16.43.250, and that its decision in this case falls well within
that   discretion.    CFEC   contends   specifically   that   the
legislatures amendment of AS 16.43.250(a) in 1985 to use the term
when  reasonable  for  the fishery, gave it discretion  to  craft
point  systems  tailored  to the peculiarities  of  a  particular
fishery.
          The   superior  court  held  that  CFECs  approach  was
reasonable,  in  part  because the  statute  affords  CFEC  broad
discretion  to  account  for peculiarities  of  a  fishery.   The
superior  court noted that the regulation gave Wilber credit  for
his  past  participation  in  the fishery,  consistent  with  the
statutes   purpose,  and  that  nothing  about  CFECs   approach,
including its treatment of the 1995 and 1996 harvests, placed the
agencys  rule outside of its discretionary authority.   We  agree
with the superior court.
          The  Limited  Entry  Acts purpose  is  to  promote  the
conservation  and  the  sustained  yield  management  of  Alaskas
fishery  resource  and  the  economic  health  and  stability  of
commercial fishing in Alaska by regulating and controlling  entry
.  .  . into the commercial fisheries in the public interest  and
without  unjust  discrimination.22  We have  held  that  avoiding
unjust discrimination requires ranking applicants for the limited
number of permits according to the degree of hardship which  [the
fisherman]  would suffer by exclusion from the fishery.  23   The
specific  moratorium legislation in this case also required  that
the point system be weighted towards recent participants.24
          These  broad purposes are well served by 20 AAC 05.808.
CFEC  took  into account the amount of geoduck caught  by  divers
each  year,  came  up  with a ranking system that  compared  each
divers  catch, and awarded more points for those divers  who  had
caught  more  geoduck  in  the most recent  years  preceding  the
moratorium.   Wilber  advances  a narrow  interpretation  of  the
statutory   term  year,  and  asserts  that  the  terms   meaning
constrains  CFECs  authority to assess  hardship  based  on  past
participation.   We  are  not  convinced  that  the   legislature
intended to tether CFECs authority in this manner.
          CFECs regulation in this case considers both factors by
looking  at  how  much geoduck a given diver caught  during  four
different  periods: 1992, 1993, 1994, and 1995 to July  1,  1996.
The last, anomalous category simply measures participation during
the  1995 season for all but the nineteen divers who participated
in  the  four-day opening of the fishery in Symonds Bay prior  to
the  1996  mid-season moratorium.  CFEC hence considers a  divers
history  over  a  number of years, and it  considers  the  divers
history  during each of those years.  The regulation  gives  more
points  to divers who fished more years, more recently  prior  to
the  moratorium, and caught more geoduck.  It gives fewer  points
to  divers who fished fewer years, less recently, and caught less
geoduck.     The   regulation   thus   presents   a   reasonable,
straightforward  means of evaluating the economic  hardship  that
would  befall  individuals excluded from the fishery,  consistent
with the Limited Entry Acts mandate.25
          The conclusion we draw from our analysis of the text is
reinforced  by the broad discretion afforded CFEC to craft  point
          systems for measuring hardship.  The legislature confirmed this
grant  of  discretion by amending AS 16.43.250 in 1985, following
our  decision  in  Rutter  v. State, Commercial  Fisheries  Entry
Commission.26
          In  Rutter, we considered former AS 16.43.250(a), which
provided that CFEC was to consider certain enumerated factors  in
assessing  an  applicants degree of economic dependence  on   and
past  participation  in  a fishery.27  We interpreted  subsection
.250(a)  as  requiring that CFEC consider all  of  the  statutory
factors, and invalidated a CFEC regulation that failed to do so.28
The  legislature  responded by amending the statute  in  1985  to
replace  the  phrase preceding the enumerated factors   including
but  not  limited  to   with the phrase when reasonable  for  the
fishery.29   The  letter  of  intent  accompanying  the  amending
legislation stated that the legislatures intent was to allow CFEC
to  disregard  one  or  more particular hardship  standards  when
ranking applicants if the standards were unreasonable in light of
the   particular  fishery.30   The  letter  further  stated:  The
legislature recognizes that patterns of participation and  extent
of  economic dependence vary from fishery to fishery and intended
that,  in developing point systems for limited fisheries,  [CFEC]
should   exercise  some  discretion  in  how  to   measure   past
participation and economic dependence.31
          We  revisited our decision in Rutter in a separate case
not  long after the legislature passed its amendment.  In  Haynes
v.  State, Commercial Fisheries Entry Commission,32 we recognized
that the amendment clearly grants discretion to the CFEC to award
points  for  economic  dependence based on  less  than  all  four
indicia, effectively overruling Rutter.33  Wilber points out that
the  Haynes decision does not give CFEC carte blanche  to  modify
factors under AS 16.43.250 once it has decided to consider  them.
But this was not the kind of prerogative exercised by CFEC below,
nor  is  it the kind of authority that CFEC argues for on appeal.
As CFEC notes, its approach can only be considered a modification
if one accepts Wilbers narrow interpretation of AS 16.43.250.  We
decline  to  adopt  that  interpretation, however,  because  CFEC
responded  reasonably to the legislatures mid-year moratorium,  a
situation not expressly contemplated by the statute.  This  falls
well  within the discretion envisioned by the legislature in  its
1985 amendments to AS 16.43.250, as it enables CFEC to tailor its
point system to a unique circumstance of the geoduck fishery.34
          As  we have already noted, determining the hardship  an
individual  would  suffer from exclusion from a fishery  requires
both  administrative expertise and the formulation of fundamental
policy.35  Not only did CFEC have the broad discretion to create a
geoduck  fishery  point system, it needed to use this  discretion
because the legislatures imposition of a moratorium in the middle
of  a  year was unusual.  Though Wilber notes that CFEC  has  not
combined calendar years in other point systems, he fails to  cite
examples  where the legislature has imposed the type of  mid-year
moratorium  that occurred here.  The other point systems  created
by  CFEC  in response to the legislatures dive fishery moratorium
were  also  necessarily  unusual.36   In  light  of  the  unusual
circumstances presented to it, CFEC created a valid point  system
          for measuring hardship in the geoduck fishery, and acted well
within its broad discretion under the Limited Entry Act.
V.   CONCLUSION
          For  the reasons detailed above, we AFFIRM the decision
of the CFEC.
MATTHEWS, Justice, concurring.
          This concurring opinion concerns an issue that has  not
been properly raised and therefore is waived.  I write separately
because  the  issue may be important when other winter  fisheries
are made subject to limited entry.
          Geoduck fishing seasons run from October through  May.1
But  the  CFEC  measures past participation on a calendar  rather
than a seasonal year.  This measurement can seriously distort the
extent  of a fishermans past participation.  A fisherman who  has
harvested  geoduck  for  two seasons may  have  done  so  in  one
calendar  year.   Likewise, a fisherman who has  participated  in
only  one  season may have done so in two calendar years.   Since
the  objective mandated by statute is to measure the extent of  a
fishermans past participation,2 it seems apparent that  something
is  wrong  with a system that awards a one-season fisherman  more
points than a two-season fisherman.
          But that is what has happened to Wilber.  He fished  in
two   seasons,   1994-95  and  1995-96.    His   1994-95   season
participation  occurred in January 1995 when he  harvested  1,849
pounds  in Symonds Bay.  In the 1995-96 season, he fished in  two
openings,  one  in  October near Craig where he  harvested  1,842
pounds,  and  one  in January in Symonds Bay where  he  harvested
1,433  pounds.   Looking  at  the  top  tier  harvest  thresholds
established by the regulation,3 it is evident that Wilber  is  an
industrious and effective fisherman.  Yet Wilber received  credit
under  the  regulation  for only one year  of  participation  and
received   only  ten  points.   By  contrast,  a  fisherman   who
participated  in  only one season, that of 1994-95,  landing  say
1,000  pounds  in  October 1994 and 500 pounds in  January  1995,
would  receive  nineteen  points and be  eligible  to  receive  a
transferrable permit.
          Under  Alaska  law,  courts may review  regulations  to
determine   whether  they  are  reasonable  and  not  arbitrary.4
Successful  challenges under this standard  are  usually  process
oriented.  That is, courts find that the entity promulgating  the
regulation  failed to consider some important  factor.   However,
sometimes enactments are simply so unfair or so remotely  related
to  reasonable objectives that they must be considered  arbitrary
and unreasonable on substantive grounds.5
          I  think  a  convincing case might  be  made  that  the
regulation  in question is arbitrary and unreasonable because  it
measures  past participation on an annual rather than a  seasonal
basis.   But  this argument was not raised in the superior  court
and  at  best  is only alluded to by Wilber in his briefs  before
this court.  The issue therefore is waived.6  As to the arguments
that are properly before this court, I agree with the opinion  of
the court.
_______________________________
     1     The  Pacific  geoduck clam (Panopea  abrupta)  is  the
largest  intertidal clam in the world, weighing up to ten pounds,
and  reaching  life  spans of up to 163  years.   See  J.M.  Lobo
Orensanz, et al., Precaution in the Harvest of Methuselahs  Clams
the   Difficulty  of  Getting  Timely  Feedback  from  Slow-paced
Dynamics,  61  Can. J. Fish. Aquat. Sci. 1355  (2004).   Geoducks
have  slow  growth  rates, taking five to seven  years  to  reach
harvestable  size.   The  ecology of the geoduck  is  only  dimly
understood,  and sampling estimates tend to vary  widely  due  to
their  broad  geographic  distribution  and  the  difficulty   in
identifying  subtidal geoduck habitats.  See Christopher  Siddon,
Evaluation  of the Southeastern Alaska Geoduck (Panopea  Abrupta)
Stock  Assessment Methodologies, Alaska Department  of  Fish  and
Game,  Special  Publication No. 07-02, March 2007,  available  at
http://www.sf.adfg.state.ak.us/FedAidPDFs/sp07-02.pdf.

     2    House Bill (H.B.) 547, 19th Leg., 2d Sess. (1996).

     3    Ch. 125,  2, SLA 1996.

     4    Id.  4-5.

     5    Id.  2.

     6    Id.

     7    Id.

     8    20 Alaska Administrative Code (AAC) 05.806-09 (1999).

     9    See id.; ch. 125,  4, SLA 1996.

     10    20 AAC 05.320(i).

     11    See 20 AAC 05.808.

     12     20  AAC  05.808(a).   There are actually  thirty-four
possible  points  available, but CFECs hardship scale  will  only
award a maximum of 24 points.  Id.

     13    See AS 16.43.228(g).

     14    AS 16.43.250(b)(c) provides:

               (b)   The commission shall designate  in
          the      regulations      those      priority
          classifications  of  applicants   who   would
          suffer   significant  economic  hardship   by
          exclusion from the fishery.
          
               (c)   The commission shall designate  in
          the      regulations      those      priority
          classifications  of  applicants   who   would
          suffer   only  minor  economic  hardship   by
          exclusion from the fishery.
          
     15    20 AAC 05.809(a).

     16    20 AAC 05.809(b).

     17    AS 16.43.250 provides in relevant part:

               (a)   Following the establishment of the
          maximum  number  of  units  of  gear  for   a
          particular  fishery under AS  16.43.240,  the
          commission     shall    adopt     regulations
          establishing   qualifications   for   ranking
          applicants for entry permits according to the
          degree of hardship which they would suffer by
          exclusion  from the fishery. The  regulations
          shall  define  priority  classifications   of
          similarly  situated applicants based  upon  a
          reasonable balance of the following  hardship
          standards:
          
                    (1)  [economic dependence];
          
                    (2)   extent  of past participation
               in    the   fishery,   including,   when
               reasonable  for the fishery, the  number
               of   years  of  participation   in   the
               fishery,   and   the   consistency    of
               participation during each year.
               
     18     Grunert  v.  State, 109 P.3d 924, 929  (Alaska  2005)
(internal  quotation  marks  omitted)  (alteration  in  original)
(quoting  Interior Alaska Airboat Assn v. State, Bd. of Game,  18
P.3d 686, 689 (Alaska 2001)).

     19     Id.  (citing  and  quoting Meier  v.  State,  Bd.  of
Fisheries, 739 P.2d 172, 173 (Alaska 1987)).

     20     Rose v. State, Commercial Fisheries Entry Commn,  647
P.2d 154, 161 (Alaska 1982).

     21    Id.

     22    AS 16.43.010.

     23     State,  Commercial Fisheries Entry Commn v. Apokedak,
606 P.2d 1255, 1261 (Alaska 1980).

     24    Ch. 125,  1, SLA 1996.

     25    See Rose, 647 P.2d at 161.

     26    668 P.2d 1343 (Alaska 1983), superseded by statute, ch.
22,   5,  SLA  1985, as recognized in Haynes v. State, Commercial
Fisheries Entry Commn, 746 P.2d 892, 894 (Alaska 1987).

     27    Former AS 16.43.250(a) provided in relevant part:

          The   regulations   shall   define   priority
          classifications    of   similarly    situated
          applicants based upon a reasonable balance of
          the following hardship standards:
          
               (1)   degree of economic dependence upon
          the  fishery,  including but not  limited  to
          percentage   of  income  derived   from   the
          fishery, reliance on alternative occupations,
          availability   of  alternative   occupations,
          investment in vessels and gear;
          
               (2)  extent of past participation in the
          fishery,  including but not  limited  to  the
          number  of  years  of  participation  in  the
          fishery, and the consistency of participation
          during each year.
          
Ch. 47,  5, SLA 1981.

     28    Rutter, 668 P.2d at 1349.

     29    Ch. 22,  5, SLA 1985.

     30    1985 Senate Journal 483.

     31    Id.

     32    746 P.2d at 893.

     33    Id. at 894.

     34    See 1985 Senate Journal 483.

     35    Rose, 647 P.2d at 161.

     36     See  20  AAC  05.814 (applying the same qualification
periods  for the sea cucumber fishery); 20 AAC 05.820 (evaluating
hardship  in  the  sea urchin fishery based on the  total  pounds
caught  by  a  diver in the twelve-and-a-half  years  before  the
moratorium).

     1     There  are  biological reasons for this:  Harvest  for
geoducks has been allowed from October 1 through May 31 to  avoid
the summer spawning and recovery period and to minimize paralytic
shellfish   poisoning  (PSP)  toxin  levels.  Alaska   Commercial
Fisheries  Entry Commission, Southeast Alaska Geoduck  Clam  Dive
Fishery  Rationale  for CFECs Regulatory Decisions  7  (Dec.  28,
2000).

          In  recognition  of  these biological  reasons  geoduck
harvesting regulations define a registration year as starting  on
October  1  and  ending on September 30.  5 Alaska Administrative
Code  (AAC)  38.146(b)  (2007).  All gear  and  vessels  used  to
harvest geoducks must be registered and registration certificates
must  be kept on each vessel during harvesting.  5 AAC 38.020(c).
Certificates  are  issued on the basis of the  registration  year
October 1 through September 30.

     2     AS  16.43.250(a)(2).   While  CFEC  asserts  that  the
language of this statute, which speaks of the number of years  of
participation in the fishery, guided its decision to implement  a
calendar-year  based participation system, year as  used  in  the
statute  can  readily mean season.  Indeed, CFEC  has  previously
interpreted  year  as season in some winter  fisheries.   20  AAC
05.693(a) (awarding past participation points in the Southeastern
Alaska  red and blue king crab pot fishery on a seasonal  basis);
20  AAC  05.694(a)  (awarding past participation  points  in  the
Southeastern Alaska brown king crab fishery on a seasonal basis);
20  AAC  05.695(a)  (awarding past participation  points  in  the
Southeastern  tanner crab pot fishery on a seasonal  basis);  see
also  5  AAC  34.020(b) (king crab registration year is  June  28
through June 27); 5 AAC 35.020(c) (tanner crab registration  year
is August 1 through July 31).

     3    See supra Slip Op. at 4.

     4     State  v.  Morry, 836 P.2d 358, 362-64 (Alaska  1992);
Johns  v.  Commercial Fisheries Entry Commn, 758 P.2d 1256,  1261
(Alaska 1988).

     5     An example of a statute that operated so unfairly that
it could not stand is the section of the workers compensation act
devising a formula for determining gross weekly earnings that was
struck down in Gilmore v. Alaska Workers Compensation Board,  882
P.2d  922 (Alaska 1994), superceded by statute, AS 23.30.220,  as
recognized in Dougan v. Aurora Electric, Inc., 50 P.3d 789,  796-
97  (Alaska  2002).   This  section  was  struck  down  on  equal
protection  grounds because it was needlessly  unfair.   Gilmore,
882 P.2d at 928-29.  It seems clear that had it been a regulation
rather than a statute, the section would also have failed to pass
muster under the arbitrary and unreasonable standard.

     6     Powercorp Alaska, LLC v. State, Alaska Indus.  Dev.  &
Exp. Auth., Alaska Energy Auth., 171 P.3d 159, 165 & n.25 (Alaska
2007)  (issues not briefed or raised in administrative appeal  to
superior court are waived).

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