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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kuzmin v. State, Commercial Fisheries Entry Commission (12/11/2009) sp-6439
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 firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA
|FEDOR Z. KUZMIN,||)|
|) Supreme Court No. S- 13115|
|) Superior Court No. 3HO-06-201 CI|
|) O P I N I O N|
|STATE OF ALASKA,||)|
|COMMERCIAL FISHERIES||) No. 6439 December 11, 2009|
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Homer, William F. Morse, Judge. Appearances: Michael Hough, Homer, for Appellant. Vanessa M. Lamantia, Assistant Attorney General, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee. Before: Fabe, Chief Justice, Eastaugh, Carpeneti, Winfree, and Christen, Justices. EASTAUGH, Justice. I. INTRODUCTION The Commercial Fisheries Entry Commission (CFEC) denied Fedor Kuzmins limited entry crab permit application because it found that he had insufficient points. Kuzmin appeals, arguing that the CFEC abused its discretion by refusing to credit him points based on crab deliveries he allegedly made as a partner in his son Romils 2001 fishing operation. Because substantial evidence supported the CFECs finding that Kuzmin was not in joint control of Romils 2001 fishing operation, as 20 Alaska Administrative Code (AAC) 05.834(c) required, we affirm the superior court order affirming the CFEC decision that denied Kuzmins entry permit application. II. FACTS AND PROCEEDINGS In 2004 Fedor Kuzmin applied to Alaskas Commercial Fisheries Entry Commission for an entry permit to the Kodiak bairdi Tanner crab pot fishery. This permit was required because the Limited Entry Act, which promotes the conservation and sustained yield management of Alaskas fisheries,1 designates the Kodiak crab fishery as one that requires limitation of entry.2 The CFEC allocates a maximum of 180 entry permits to the Kodiak bairdi Tanner crab pot fishery each year, ranking applicants according to their degree of economic dependence on the fishery and the extent of their past participation in the fishery.3 The CFEC has established a zero-to-sixty point scale for the Kodiak crab fishery.4 An applicant can claim a maximum of twenty points for past participation in the fishery, thirty- five points for consistent participation in the fishery, and five points for economic dependence.5 When Kuzmin applied for an entry permit to the Kodiak crab fishery in 2004, he indicated that he had harvested at least 100 pounds of crab in 2001 and more than 5,600 pounds of crab in 1994 from the fishery. Based on the amount he had harvested, Kuzmin claimed that he should be awarded nineteen points for consistent participation. Because he had harvested crab in two separate calendar years, Kuzmin claimed that he should be awarded an additional thirteen points for past participation. In October 2004 the CFEC sent Kuzmin a letter stating that additional information was needed to classify his application. Despite Kuzmins claim that he harvested at least 100 pounds of crab in 2001, the letter stated that CFEC did not have any landings attributed to Kuzmins permit in 2001. Kuzmin submitted a statement alleging that he went crab fishing in January 2001 with his son Romil. Kuzmin stated that they used Kuzmins crab pots and fished off Romils boat as partners, splitting in half both income and expenses. Romil submitted an affidavit stating that Kuzmin worked as a deckhand on Romils boat in 2001 and was paid in cash. Although Romil stated that he used Kuzmins pots that year, he referred to Kuzmin as his deckhand and did not refer to him as his partner. In December 2004 the CFEC classified Kuzmins entry permit application at thirteen points. The CFEC credited Kuzmin with six points for harvesting at least 100 pounds but less than 5,600 pounds of crab in 1994 and seven points for commercially harvesting bairdi Tanner crab in one calendar year. The CFEC did not award Kuzmin points based on his claim that he had harvested at least 100 pounds of crab in 2001. In January 2005 Kuzmin asked the CFEC for an administrative hearing. A hearing was held on May 19, 2005 with Kuzmin and his counsel appearing telephonically from Cordova. The only witnesses who testified about Kuzmins 2001 fishing activities were Kuzmin and his son Romil. The hearing officer found that Kuzmin had not shown with a preponderance of the evidence that he was in joint control of Romils 2001 fishing operation and therefore entitled to partnership participation points. Because Kuzmin did not meet his burden to show the commissions determination was in error, his application was finally classified with thirteen points. Thirteen points was insufficient to qualify for a non-transferable permit, and Kuzmins application was denied. Kuzmin submitted to the CFEC a petition for administrative review of the hearing officers decision. The CFEC denied Kuzmins petition and finally den[ied] his entry permit application by affirming and adopting the hearing officers decision as its own. Kuzmin requested reconsideration, but following reconsideration the CFEC again upheld the hearing officers findings and finally denied Kuzmins application. In September 2006 Kuzmin appealed to the superior court, arguing that the CFEC erred by concluding that he was not entitled to a portion of the deliveries he and his son Romil made in 2001. In April 2008 the court held that substantial evidence supported the CFECs conclusion that Kuzmin was participating as a crewmember, rather than as a partner, during the 2001 fishing season. Kuzmin appeals. III. DISCUSSION A. Standard of Review Kuzmin argues that this is a one-issue appeal focused on whether the CFEC erred in determining that he was not entitled to participation points based on the crab he and Romil harvested together in 2001. When a superior court acts as an intermediate court of appeal in an administrative matter, we independently review the merits of the agencys decision.6 When reviewing an agency decision based on factual findings, we apply the substantial evidence test.7 Whether Kuzmin fished in a partnership turns on whether he was in joint control of Romils fishing operation, a question of fact to which we apply the substantial evidence test.8 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.9 When reviewing an agencys interpretation of its own regulation, we apply the reasonable basis standard of review.10 We will defer to the agency unless its interpretation is plainly erroneous and inconsistent with the regulation.11 This deferential standard of review properly recognizes that the agency is best able to discern its intent in promulgating the regulation at issue.12 B. Whether the CFECs Decision Not To Award Kuzmin Points Based on His 2001 Participation Was Arbitrary, Capricious, an Abuse of Discretion, and Not Supported by Evidence The CFEC has promulgated specific regulations governing the permitting process for the Kodiak crab fishery under the Limited Entry Act.13 Per those regulations, an applicant is