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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. State, Commercial Fisheries Entry Commission (07/03/2008) sp-6279

Nelson v. State, Commercial Fisheries Entry Commission (07/03/2008) sp-6279, 186 P3d 582

     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

NORVAL H. NELSON, SR., )
) Supreme Court No. S- 12563
Appellant, )
) Superior Court No. 3AN-03-9559 CI
v. )
)
STATE OF ALASKA, ) O P I N I O N
COMMERCIAL FISHERIES )
ENTRY COMMISSION, ) No. 6279 - July 3, 2008
)
Appellee. )
)
)
NORVAL E. NELSON, JR., ) Supreme Court No. S- 12564
)
Appellant, ) Superior Court No. 3AN-03-9560 CI
)
v. )
)
STATE OF ALASKA, )
COMMERCIAL FISHERIES )
ENTRY COMMISSION, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District,  Anchorage,  Michael   L.
          Wolverton, Judge.

          Appearances:   Michael  Hough,   Homer,   for
          Appellants. John T. Baker, Assistant Attorney
          General,  Anchorage, and  Talis  J.  Colberg,
          Attorney   General,  Juneau,  for   Appellee.
          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          WINFREE, Justice.

I.   INTRODUCTION
          The Alaska Commercial Fisheries Entry Commission (CFEC)
issues  entry  permits  and interim-use  permits  for  commercial
fishing purposes.1  Both types of permits are renewable annually.2
The  CFEC  designates distressed and certain other fisheries  for
limited entry and caps the number of entry permits it issues  for
these  fisheries.3  A point system determines who receives  entry
permits  for  these fisheries; points are available for  economic
dependence  on  and past participation in a given fishery.4   The
CFEC  has authority to issue an interim-use permit while an entry
permit application is pending or being appealed.5
          In  1987 father and son fishers applied separately  for
entry permits in a sablefish fishery the CFEC had designated  for
limited   entry.6    The  CFEC  denied  both   applications   for
insufficient  points.  The father and son  argue,  as  they  have
throughout  their proceedings, that they each should  be  awarded
additional  points  for  two reasons:  (1)  the  CFEC  should  be
estopped  from  denying  each of them additional  skipper  points
because its misinformation caused both of them not to qualify for
those  points;  and (2) they each qualify for additional  skipper
points under a regulatory extraordinary circumstances exception.7
We  affirm  the  denials of the extra points, and  therefore  the
denials  of  the entry permits, because the CFEC did not  err  in
concluding that the father and son were not misinformed and  that
neither   qualified  for  additional  points  for   extraordinary
circumstances.
II.  FACTS AND PROCEEDINGS
          Norval  H. Nelson, Sr. (Nelson Sr.) and his son, Norval
E.  Nelson,  Jr.  (Nelson  Jr.) have  been  full-time  commercial
fishers  for many years.  They fish together, just as Nelson  Sr.
fished with his father, and they have landed crab, sablefish, and
halibut.
          By early 1987 the CFEC had determined that the Northern
Southeast  Inside sablefish longline fishery (sablefish  fishery)
could   sustain  only  seventy-three  commercial  fishers.8    In
November 1987 Nelson Sr. and Nelson Jr. each applied to the  CFEC
for  a  sablefish fishery entry permit.  Each claimed a total  of
44.5  points: 9 points for 1975 skipper participation, 18  points
for  1984 skipper participation, 10 points for income dependence,
and 7.5 points for vessel ownership.  In 1989 the CFEC classified
Nelson Sr. with 0 points and Nelson Jr. with 40.5 points, and did
not grant either application due to insufficient points.
          The  Nelsons requested administrative hearings and each
amended  his application to include an additional 11  points  for
skipper  participation  in 1977, for a projected  total  of  55.5
points  each.  A joint hearing on their applications was held  in
1992, and the Nelsons raised two arguments now before us in  this
appeal.    First,   the  Nelsons  asserted  that   CFEC   relayed
misinformation  that  ultimately resulted  in  the  CFEC  denying
Nelson  Sr. skipper points for 1984 and Nelson Jr. skipper points
for 1975 and 1977.  Specifically, the Nelsons alleged that a CFEC
          staff person erroneously told Nelson Sr. that each boat could
have  only one interim-use permit at a time.  The Nelsons claimed
that  as a result of this alleged misinformation, Nelson Sr.  did
not  secure an interim-use permit in 1984 because Nelson Jr.  had
one  for  that year, and Nelson Jr. did not secure an interim-use
permit  in  1975 or 1977 because Nelson Sr. had one for  each  of
those  years.  Neither Nelson was entitled to skipper points  for
the  years he did not have an interim-use permit but each  argued
that he nonetheless should receive those points under an estoppel
theory.  Second, the Nelsons asserted that a mechanical breakdown
in  1977  precluded  them  from participating  in  the  sablefish
fishery,  which constituted extraordinary circumstances entitling
each of them to skipper points for that year.
          In  January  1997  a  CFEC  hearing  officer  issued  a
consolidated decision classifying Nelson Sr. with 17.5 points and
Nelson Jr. with 43.5 points, still insufficient to qualify either
Nelson  for  a permit.  The Nelsons petitioned for administrative
review  in  April 1997, and in August 2002 the CFEC affirmed  the
hearing   officers   decision.   The   Nelsons   petitioned   for
reconsideration,  and in June 2003 the CFEC  again  affirmed  the
hearing  officers  decision.  The Nelsons then  appealed  to  the
superior court.
          In  December  2006  Superior  Court  Judge  Michael  L.
Wolverton affirmed the decisions of the hearing officer  and  the
CFEC.  The superior court noted that the hearing officers factual
findings  about  the  misinformation  claim  were  supported   by
substantial  evidence  and that the hearing  officers  conclusion
about  the  lack of extraordinary circumstances was supported  by
the facts in the record and [had] a reasonable basis in law.
          The   Nelsons   appeal  individually.    This   opinion
addresses both appeals.
III. STANDARD OF REVIEW
          When a superior court acts as an intermediate court  of
appeal,  we  independently review the merits  of  the  underlying
administrative  decision and give no deference  to  the  superior
courts  decision.9   We have recognized at least  four  principal
standards of review for administrative decisions,10 two of  which
are  applicable here: substantial evidence for questions of  fact
and  reasonable  basis for questions of law that  involve  agency
expertise.11  Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.12
IV.  DISCUSSION
          We  affirm  the  CFEC  decision.  Substantial  evidence
supports   the  CFECs  conclusion  that  the  Nelsons  were   not
misinformed.   The  CFEC  also had a  reasonable  basis  for  its
conclusion   that  the  Nelsons  mechanical  troubles   did   not
constitute extraordinary circumstances.13
     A.   The CFEC Decision Rejecting the Nelsons Misinformation Claim
          Is Supported by Substantial Evidence.
          
          Successful estoppel claims against the government  must
satisfy  four  elements:   (1)  a  governmental  body  asserts  a
position;  (2) a person reasonably relies on that assertion;  (3)
the person suffers prejudice as a result; and (4) estoppel serves
the  interest  of justice.14  The hearing officer  and  the  CFEC
concluded  that the Nelsons had failed to prove that an erroneous
statement had been made.
          The  hearing  officer found that the Nelsons  testimony
about the alleged misinformation was confused, contradictory, and
thus, not credible.  The hearing officer identified discrepancies
in  the Nelsons position:  first, Nelson Sr. contradicted himself
regarding  when  the  alleged statement  was  made;  second,  the
Nelsons  contradicted themselves regarding whether they  believed
they  only needed one permit or whether they only could have  one
permit;  and  third, the Nelsons had on several  other  occasions
held  duplicate permits.  The hearing officer noted that the only
evidence   of  alleged  misinformation  was  the  Nelsons   self-
interested testimony, which, in the case of Nelson Jr., was based
not  on personal knowledge but rather on what his father had told
him.   The  hearing officer concluded that by neither asking  the
staff person to testify nor introducing evidence of other fishers
being  wrongly  advised  on this issue,  the  Nelsons  failed  to
establish that they had been misinformed.
          In  our view, substantial evidence supports the hearing
officers and the CFECs conclusions that the staff person did  not
misinform the Nelsons.  We thus uphold the CFECs decision not  to
award either Nelson additional skipper points based on estoppel.
     B.   The  CFEC  Decision Rejecting the Nelsons Extraordinary
          Circumstances Claim Has a Reasonable Basis.
          
          The  CFEC  may award applicants points they  reasonably
would  have  been  entitled  to  receive  but  for  extraordinary
circumstances.15   Extraordinary  circumstances  do  not  include
voluntary or involuntary retirement from a fishery or loss of the
financial   means  to  continue  participation  in  a  fishery.16
Extraordinary  circumstances do include the  loss  of  vessel  or
equipment  through sinking, destruction, or extensive  mechanical
breakdown.17   Mechanical breakdown implies  that  the  equipment
worked  at  some point.  Inability to properly use equipment  and
unsuitability  of  equipment are not generally considered  to  be
mechanical breakdowns. 18
          The  hearing officer and the CFEC rejected the  Nelsons
extraordinary  circumstances claim, concluding that inappropriate
gear,  not  gear failure, ultimately caused the Nelsons inability
to  participate  in the sablefish fishery in 1977.   The  hearing
officer  acknowledged  that  the Nelsons  experienced  mechanical
problems that year, but, because the sablefish fishery season was
two  and a half months long, found it was [m]ore than likely that
they had ample time to have a gear failure and still get back  to
fishing  after a repair.  The hearing officer found that  if  the
Nelsons  had  been prevented from participating in the  sablefish
fishery, it was because they were using a crab block instead of a
longline gurdy and that [a]cquiring the necessary equipment is  a
common experience for fishers and is not unique or extraordinary.
          The hearing officer also noted that their vessel was run down,
that  any  boat  share money beyond the loan  payment  went  into
repairing and equipping the vessel, and that the Nelsons did  not
participate in the sablefish fishery with that vessel again until
1984.
            In  our view, the CFEC had a reasonable basis for its
interpretation and application of the regulations to  reject  the
Nelsons extraordinary circumstances claim.  It is unfortunate  if
financial considerations precluded the Nelsons from participation
in  the  sablefish fishery, but the regulations explicitly  state
that  loss of the financial means to continue participation in  a
fishery  does  not constitute extraordinary circumstances.19   We
thus  uphold  the CFECs decision declining to award  the  Nelsons
additional points based on this claim.
V.   CONCLUSION
          Because  the CFEC did not err in declining to give  the
Nelsons additional points, we AFFIRM the denials of their limited
entry permits.
_______________________________
     1      AS  16.43.020,  .100(a)(7)-(8),  .140.   The  Limited
Fisheries Entry Act, AS 16.43.010-.990, established the CFEC  and
charged it with, among other things, regulat[ing] entry into  the
commercial fisheries for all fishery resources in the  state.  AS
16.43.020, .100(a)(1).

     2     20 Alaska Administrative Code (AAC) 05.425(a), .560(a)
(2007).

     3    20 AAC 05.300-.320, .515.

     4    AS 16.43.250; 20 AAC 05.600(a).

     5    20 AAC 05.415.

     6    20 AAC 05.310(f).

     7    20 AAC 05.703(d).

     8     Cleaver v. State, Commercial Fisheries Entry Commn, 48
P.3d 464, 465 (Alaska 2002).  Northern Southeast Inside refers to
an  administrative  area described in the  regulations.   20  AAC
05.230(a)(8).   Sablefish  are also referred  to  as  black  cod.
Cleaver,  48  P.3d at 466 n.9.  Longlining involves using  baited
hooks  on offshoots . . . of a single main line (usually  several
miles long) to catch fish.  Id. at 466 n.8.

     9    Simpson v. State, Commercial Fisheries Entry Commn, 101
P.3d  605, 609 (Alaska 2004) (citing Bruner v. Petersen, 944 P.2d
43, 47 n.5 (Alaska 1997)).

     10     Id. (citing Jager v. State, 537 P.2d 1100, 1107  n.23
(Alaska 1975)).

     11    Id.

     12     Cleaver, 48 P.3d at 467 (citing Commercial  Fisheries
Entry Commn, State v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991)).

     13    The State also argues that Nelson Sr.s appeal is moot.
According  to  the State, even if the CFEC had classified  Nelson
Sr.  with all of the points he seeks through his appeal, he still
would  not  qualify for a permit because the denial level  as  of
October  9,  2007,  was higher than Nelson Sr.s  projected  point
total.   The  State  cites OCallaghan v.  State,  920  P.2d  1387
(Alaska  1996), in support of the proposition that an  appeal  is
moot  if  an  appellant who prevailed would not  be  entitled  to
relief.   Id.  at  1388.  In OCallaghan, we  concluded  that  the
appeal  of  an  unsuccessful  gubernatorial  candidate  was  moot
because  the  term  of  office of the  successful  candidate  had
already  ended.  Id. at 1388-89.  The State may be  correct,  but
because  we  still must address Nelson Jr.s claims, which  mirror
Nelson Sr.s claims, we resolve the claims on their merits.

     14     Wassink  v. Hawkins, 763 P.2d 971, 975 (Alaska  1988)
(citing Municipality of Anchorage v. Schneider, 685 P.2d  94,  97
(Alaska 1984)).

     15    20 AAC 05.703(d).

     16    Id.

     17    Id.

     18    Cleaver, 48 P.3d at 469.

     19    20 AAC 05.703(d).

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