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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doubleday v. State (8/20/2010) sp-6501

Doubleday v. State (8/20/2010) sp-6501, 238 P3d 100

     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

MORGAN DOUBLEDAY, )
) Supreme Court Nos. S- 13149/13189
Appellant and )
Cross-Appellee, )
) Superior Court Nos.
v. ) 3HO-06-196 CI/3HO-06- 197 CI
)
STATE OF ALASKA, )
COMMERCIAL FISHERIES )
ENTRY COMMISSION, ) O P I N I O N
)
Appellee and )
Cross-Appellant. ) No. 6501 - August 20, 2010
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Homer,
          Anna M. Moran, Judge.

          Appearances:   Michael  Hough,   Homer,   for
          Appellant  and  Cross-Appellee.   Thomas   E.
          Lenhart, Assistant Attorney General and Talis
          J.  Colberg,  Attorney General,  Juneau,  for
          Appellee and Cross-Appellant.

          Before:   Carpeneti, Chief Justice, Eastaugh,
          Fabe, Winfree, and Christen, Justices.

          CARPENETI, Chief Justice.
I.   INTRODUCTION
          I.    A  commercial fisher appeals the  denial  of  his
application  for  permits  for  two  fisheries.   The  Commercial
Fisheries Entry Commission denied the permit applications because
the  fisher  produced  no evidence of his  participation  in  one
fishery and evidence of only minimal participation in the  other.
On appeal, the fisher argues that he could not meet his burden of
proof  because the State destroyed or lost the records  necessary
to prove his case, and that therefore this court should apply the
spoliation  of  evidence doctrine to conclude that the  documents
would  have  established his participation.  He also argues  that
the  entry commission violated the Limited Entry Act by using the
number  of vessels to calculate the maximum number of permits  in
the fisheries.  The State cross-appeals, challenging the superior
courts  award of attorneys fees as too low.  Because  the  fisher
fails  to establish a claim for spoliation of evidence, we affirm
the  superior  courts decision.  We decline to hear  the  fishers
challenge  to  the maximum number of permits in  these  fisheries
because he did not exhaust his administrative remedies.  Finally,
because  the  superior  court did not abuse  its  discretion,  we
affirm its award of attorneys fees.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          1.   Permitting system
          1.   This appeal arises under the Commercial Fisheries Entry
Commission (CFEC) point system for allocating permits to fish  in
two sablefish fisheries, the Southern Southeast Inside (Southern)
and  the  Northern Southeast Inside (Northern) sablefish longline
fisheries.   The  CFEC  decided  in  1985  that,  although  these
fisheries  were not distressed, participation in them  should  be
limited  to achieve the purposes of the Limited Entry Act.1   The
CFEC  set  the  maximum  number of  permits  for  both  sablefish
fisheries  by determining the number of units of gear during  the
year of highest participation in the four years prior to limiting
entry to the fishery, to comply with our case law requiring  that
the  permit level could not be lower for non-distressed fisheries
than  it  would be under the statutory method of calculating  the
number   of  permits  for  distressed  fisheries.2   That  method
requires  that  the  maximum  number  of  entry  permits  for   a
distressed fishery . . . shall be the highest number of units  of
gear  fished  in  that fishery during any one of the  four  years
immediately preceding [limitation].3
          The  CFEC  set  the maximum number of permits  for  the
Northern  fishery at 73 and the maximum number for  the  Southern
fishery  at  18.4   These numbers reflect the highest  number  of
vessels  to  fish  in  these fisheries in the  years  1981-1984.5
These  entry permits are distributed according to a point  system
in  which applicants are ranked according to the degree of  their
past  participation in, and economic dependence on, the fishery.6
In  order to be eligible to apply, an applicant must have legally
participated  in  the  fishery in at least  one  qualifying  year
between 1975 and 1984.7
          2.   Doubledays established fishery participation and the fish
               ticket system
               
                 Doubleday  held  interim-use  permits  for   the
longline  sablefish  fishery every year from 1979  through  1984.
Under the permitting system at the time, these permits  known  as
C61B permits  were valid statewide.  He licensed two vessels, one
of which he used primarily for longlining and specially outfitted
in  1980 with longlining gear designed for sablefish.  It is  not
disputed  that Doubleday caught 175 pounds of sablefish  in  1981
and  1,502  pounds in 1982 in the area now known as the  Southern
fishery.
          When  a  fisher  sells his catch to  a  processor,  the
processor is required to generate a record of this sale known  as
a  fish  ticket.8   As the hearing officer explained  in  denying
Doubledays  permit  application,  fish  tickets  are  filed   and
recorded independently of one another each year by the Department
of  Fish  and Game.  Of the copies of fish tickets in the  States
files  from  1979-1984, the CFEC located 87 for Doubleday.   Only
two  are for sablefish  both caught in the Southern fishery.   No
fish  tickets in the States records show Doubledays participation
in the Northern fishery.
     B.   Proceedings
          1.   Application, hearing request, and continuances
          In  1987  Doubleday  applied for permits  to  both  the
Northern  and Southern fisheries.  For the Southern  fishery,  he
claimed on his application that he participated in 1981 and  1982
as  both  a  skipper  and holder of a crew members  license.   He
claimed  on  his  application for the Northern  fishery  that  he
participated in that fishery as a crew member from 1979  to  1984
and  as  a  skipper  from  1981 to 1984; he  later  amended  this
application  to claim points for participation as a skipper  from
1978  to  1980.   Finally,  for both the  Northern  and  Southern
fisheries, he claimed points for ownership of the fishing  vessel
Eastern and relative income dependence.
          After requesting additional evidence from Doubleday  to
support  his claims for points in the Southern fishery, the  CFEC
approved only 16 points for participation in the Southern fishery
as  a  skipper in 1982, and it found no evidence to  support  his
claims  for any additional points in either fishery.  Because  he
had  not  shown  that  he had ever harvested sablefish  from  the
Northern fishery during the qualifying years (1975-84), the  CFEC
found  him ineligible to even apply for a permit in the  Northern
fishery.  Doubleday requested an evidentiary hearing.
          The  CFEC granted multiple requests from Doubleday  for
continuances, first setting the hearing off until 19899 and  then
until 1995.10  Doubleday represented himself at the 1995 hearing,
but  it  too  was continued because Doubleday had no  documentary
evidence  and was not prepared to represent himself.   The  final
portion  of  the hearing was held on January 24,  1996,  and  the
record  was left open until June 2, 1997, at Doubledays  request.
After  the record was closed in 1997, the hearing officer  denied
Doubledays permit applications.
          2.   Missing records
                Doubleday  claims that evidence that  could  have
allowed  him  to  prove his participation was  seized  during  an
investigation  of fishing violations that he committed  in  1984.
Doubleday  fished for halibut out of season in Alaska waters  and
illegally sold the halibut in Seattle.11  Both federal and  state
agencies investigated; the State seized certain records, some  of
which  it  turned  over to federal agencies for  the  purpose  of
investigating    and   prosecuting   Doubledays   halibut-related
offenses.12   Doubleday and his attorney in this case  made  some
efforts  to  locate the seized records, but they were  ultimately
unsuccessful.13
          3.   Evidence at the hearings
          1.   At his initial hearing on December 6, 1995, Doubleday
appeared telephonically and represented himself.  He was not able
to  testify specifically regarding the years he believed  he  had
participated or the extent of his participation.  When  asked  if
he had participated in each of the years 1979 through 1984 in the
Northern fishery, he replied:
          Its been  been some time, and off the top  of
          my  head  I  I cant be absolutely sure  thats
          thats absolutely correct.  Although I do know
          that  I   that I fished there  you  know,  at
          points during the  at that time period.
          The  hearing  officer  followed up  by  asking  him  to
confirm  his  recollection of his participation in  the  Southern
fishery,  for which he claimed additional points for 1981,  1983,
and  1984.   He  answered,  I   I believe  thats  correct,  yeah.
Doubleday  said he had owned a number of vessels,  but  said  his
longlining boats were the Ketchum II  a smaller vessel  he  owned
through 1982 and converted from a trolling vessel to a longlining
vessel     and   the  Eastern   a  larger  vessel  he   gradually
transferred  over  to as his main vessel from 1979  to  1982  and
continued  to use.  He believed, though he could not specifically
recall,  that he had used the Ketchum II in the inside  sablefish
fisheries.  He  stated  that he used the  Eastern  primarily  for
longlining  for both halibut and sablefish.  He always  sold  the
sablefish to commercial buyers, mainly in Alaska but perhaps also
in  Prince  Rupert,  British  Columbia.   He  testified  that  he
longlined  and trolled in the early 1980s and ended his  trolling
efforts altogether towards 85.
          After taking some testimony and learning that Doubleday
had  no  witnesses  or documentary evidence of  participation  in
either  fishery  through 1984, the hearing  officer  stopped  the
hearing.   He  told Doubleday he would obtain a printout  of  all
known  fish  tickets  and recommended that  Doubleday  look  into
specific additional sources of evidence of his participation, and
continued the hearing until January 24, 1996.
          At  the  January  1996  hearing, Doubleday  represented
himself,  but  mentioned that his attorney  had  recommenced  his
efforts  to  locate the seized records.  He did  not  ask  for  a
continuance  and the hearing proceeded, but the record  was  left
open  for an additional year and a half in case Doubleday or  his
attorney located further information.        Also at the  January
1996  hearing,  the hearing officer reviewed each year  for  each
fishery, noting the catches for which the department had  records
for salmon and halibut.  For each year, Doubleday sold halibut or
salmon during the sablefish season, and the hearing officer asked
if  it  was  conceivable  that he would have  been  fishing  both
sablefish  and salmon during those seasons and whether  he  would
have  sold the sablefish at the same time he sold the other fish.
Doubleday indicated that he had done a lot of combination fishing
in  those days and said it was conceivable.  He testified that he
did  not  believe  he  had  missed any sablefish  season  in  the
Northern fishery back through 1978.          When asked if he had
          an explanation for why the Department of Fish and Game had no
fish tickets, he stated that he knew that the department had lost
some  records  and  he hypothesized that some  of  his  sablefish
tickets could be among them.  The hearing officer asked him about
a  loan application for the purchase of a larger boat in 1979, on
which  he was asked to list his fishing history, and on which  he
listed halibut and salmon but not sablefish.  Doubleday responded
that  sablefish prices were depressed at the time he  filled  out
the  loan application and his crew was putting in the effort  but
not  making  money from that fish.  Doubleday could not  remember
specifics  about any individual season other than  the  years  in
which  he had gotten credit for landing sablefish in the Southern
fishery, 1981 and 1982.
            Doubleday submitted affidavits from several  persons,
all identical, stating:
          This note will serve as an affidavit that  I,
          [affiant], have knowledge of Morgan Doubleday
          fishing the vessel Eastern 228794 during  the
          years  1980-1990  and  during  this  time  he
          primarily   fished  black  cod  and   halibut
          longline conventional gear.
          
          The Eastern was involved in statewide as well
          as   Clarence  Straits  and  Chatham  Straits
          fishing  during this 10 year period.   I  can
          recall   Morgan  Doubleday  and  the  Eastern
          fishing grounds with us and can remember  him
          making deliveries to various plants with  his
          product of longline caught black cod.
          
Doubleday  never submitted any other testimony or  evidence  from
other  crew  members  or  companies  that  might  have  purchased
sablefish.   No  additional records or  evidence  were  submitted
before the record was closed on June 2, 1997.
          4.   Denial of appeals
          Hearing   Officer  Frank  Glass  issued  his  companion
decisions  for  the two fisheries on December 10,  1997,  finding
that  Doubleday  failed  to meet his  burden  of  proof  that  he
qualified  for additional points in either fishery.  He therefore
denied  Doubledays applications for both.  On July 6,  2006,  the
CFEC issued its final decisions.  It confirmed that Doubleday was
eligible for only 16 points in the Southern fishery and that  his
application  would  remain  pending  until  the  commission   can
determine mathematically whether applicants with 16 points can be
issued  a  permanent entry permit.  The commission also confirmed
that  Doubleday  had  proven  no participation  in  the  Northern
fishery  and  was therefore ineligible to apply for a  permit  in
that  fishery.   The  commission  affirmed  these  decisions   on
reconsideration in August 2006.
          In  the superior court, Doubleday argued that the  CFEC
erred in setting the maximum number of permits for both fisheries
and  that the decision was not supported by substantial evidence.
He also argued that the State violated his procedural due process
rights by closing the record and that the court should apply  the
doctrine of spoliation of evidence and shift the burden of  proof
to the State because it had lost records seized from him relating
to  his fishing activities in the disputed years.  Superior Court
Judge Anna M. Moran held that Doubleday failed to meet his burden
of  proof  and,  even if the doctrine of spoliation  of  evidence
could  apply  to  this  type of case, no evidence  supported  his
claims that the government negligently or intentionally destroyed
records  or that any documents existed which could establish  his
participation in either fishery.  Judge Moran declined  to  reach
the issue of whether CFEC erred in setting the maximum number  of
permits,  stating that [b]ecause the court has found in favor  of
CFEC on these issues, it is unnecessary for the court to rule [on
the claim of error in setting the maximum number].
III. STANDARD OF REVIEW
          When  the superior court acts as an intermediate  court
of  appeal  for  an  administrative  decision,  we  directly  and
independently  review  the administrative  decision.14   We  have
recognized  four principal standards of review for administrative
decisions:   (1)  the  substantial evidence standard  applies  to
questions  of fact; (2) the reasonable basis standard applies  to
questions of law involving agency expertise; (3) the substitution
of  judgment  standard  applies to  questions  of  law  where  no
expertise  is involved; and (4) the reasonable and not  arbitrary
standard  applies to review of administrative regulations.15   We
therefore  review  the  agencys factual determinations  regarding
Doubledays  spoliation  of evidence claim under  the  substantial
evidence  standard,  and  its  legal  determinations  under   the
substitution of judgment standard.
IV.  DISCUSSION
     A.   It Was Not Error To Reject Doubledays Claim Of Spoliation Of
          Evidence.
          A.   Doubleday argues that any failure to meet his burden of
proof  regarding the participation requirement is the  result  of
the  States  spoliation of his fishing . . . logs,  .  .  .  fish
tickets, and all other evidence of participation in this fishery.
He  argues  that  he  made a good faith effort  to  overcome  the
mishandling   of   virtually  all  of  his   historical   fishing
records . . . [and] spoliation of his evidence of fishing in  the
subject   fishery.   He  finally  argues  that  the  supplemental
evidence which the CFEC obtained from public state court  records
in  fact  shows  that  the State destroyed,  lost,  or  misplaced
records  that  he believes necessary to prove his entitlement  to
the permit.
          The CFEC argues that for the State to have lost all six
years   of   fish   tickets  in  its  files  showing   Doubledays
participation  in  the Northern fishery and  four  years  of  his
participation   in  the  Southern  fishery  defies   probability.
Further,  Doubleday  failed  to  produce  any  evidence  of   his
participation  in these fisheries other than his vague  testimony
and some over-broad affidavits.  The CFEC concluded that the more
likely explanation for the lack of fish tickets is that Doubleday
did  not  fish in either the Northern or Southern fishery  during
the  relevant period of time.  The CFEC further argues  that  any
claim  that  the  State lost or destroyed records  in  Doubledays
          possession  that proved his sablefish participation  is
contradicted  by the list of items seized in the search  warrants
it obtained from state court relating to the 1984 investigation.16
          In  order  to  obtain the benefit of the spoliation  of
evidence  doctrine,  Doubleday  must  first  establish  that  the
absence of records hinders his ability to establish a prima facie
case.17  He must also produce some evidence that the records  are
missing  through the intentional or negligent act of the  adverse
party.18  If he could establish fault on the part of the State for
the  destruction of evidence necessary to his case, then a  court
could  apply a rebuttable presumption that the missing  documents
would  have  established facts unfavorable to  the  CFEC.19   The
hearing  officer  found that Doubleday did not  produce  evidence
supporting   his  claim  that  records  had  been  destroyed   or
wrongfully  kept  from him, and also failed to  demonstrate  what
potential  evidence  might exist and  how  it  might  affect  the
outcome.
          We  agree  with the CFEC that Doubleday must make  some
showing that the records were lost due to fault of the State  and
that  they  would  likely  support his  claim.   Here,  the  only
evidence  offered  on either issue is that the  State  seized  54
pages of documents from a seafood processor relating to the  1984
halibut  season and that Doubledays home was searched,  but  that
nothing  was  seized.  The search warrants  do  not  provide  any
indication  that the State seized any sablefish-related  records.
Rather,  the  search warrant served on the seafood processor  was
limited  to documents reflecting Doubledays purchase of  supplies
and  his  sale  of halibut.  The warrants receipt  and  inventory
confirm  that  only such documents were seized.  No property  was
seized  when  officers searched Doubledays home pursuant  to  the
warrant.   Finally, any navigational charts obtained  during  the
investigation were turned over to the federal government as  part
of  an  ongoing investigation and are no longer under the control
of  state  prosecuting  authorities,  as  found  by  the  federal
district court.20  Doubleday has not established any evidence that
the  State was negligent in its actions regarding these  records,
or that they are likely to contain anything of relevance.
          The  CFEC gave Doubleday from 1987 until 1997 to locate
any  material  evidence in the hands of the  federal  government.
The  CFEC  suggested use of subpoenas, provided current addresses
for  former  crew  members who might be able to provide  specific
recollections  of  participation, and suggested  other  means  of
obtaining  evidence that Doubleday participated in the fisheries.
The  Freedom  of Information Act office responded  to  Doubledays
request  for  his  federal  records  as  follows  in  1997:  [The
documents]  are  public records which may be  obtained  from  the
Clerk  of  the Court or from this office, upon specific  request,
subject  to copying fees.  Doubleday does not indicate,  and  the
record does not suggest, that he ever challenged this response or
followed up on it.  Nor does he indicate whether he ever searched
any  additional state or federal court records.  His efforts were
incomplete  at  best, and he never accepted the CFECs  offer  for
assistance or subpoenas.
          Accordingly, we affirm the superior courts  conclusions
          that Doubleday failed to show that there was negligence in the
loss  of  the  records and failed to show that the records  would
change  the  determination  of Doubledays  participation  in  the
Northern  and  Southern fisheries.  We also affirm  the  superior
courts  conclusion  that the CFECs findings  on  this  issue  are
supported by substantial evidence.
     B.   Doubleday May Not Challenge The CFEC Determination Of The
          Maximum Number Of Permits In Either The Southern Or Northern
          Fishery.
          A.   Doubleday argues that the CFEC erred in determining the
maximum  number  of  permits for both the Southern  and  Northern
fisheries.  He argues that the CFECs use of the number of vessels
as  equivalent  to  the number of units of gear  in  setting  the
maximum  for  both  fisheries is obviously incorrect.   The  CFEC
makes three arguments in response: first, that Doubleday may  not
raise  this  challenge because he failed to exhaust his  remedies
below;  second, that he lacks standing to challenge the procedure
regarding  the  Northern fishery; and third, that the  procedures
have already been approved by this court, so further challenge is
foreclosed.
          We  begin  by determining whether to apply the doctrine
of  exhaustion  of  remedies  to this  issue.   In  applying  the
doctrine of exhaustion of remedies, we must decide the following:
(1)  is  exhaustion of remedies required; (2) did the complainant
exhaust those remedies; and (3) if not, is the failure to exhaust
remedies excused?21
          1.   Doubleday was required to exhaust his administrative
               remedies before the agency prior to raising this challenge.
               
          The  CFEC  argues  that  Doubleday  may  not  raise   a
          challenge to its method
of setting permits because he did not raise this claim before the
agency, and therefore has not exhausted his remedies with  regard
to  this claim.  Doubleday argues that exhaustion should  not  be
required  because it is obvious that CFECs use of the  number  of
vessels as equivalent to the number of units of gear violates the
Limited Entry Act.
          A   claimant   must  generally  exhaust  administrative
remedies  before making a claim in court challenging the  agencys
decision-making  procedures.  We have observed that  [t]he  basic
purpose  of the exhaustion doctrine is to allow an administrative
agency  to  perform functions within its special  competence   to
make a factual record, to apply its expertise, and to correct its
own errors so as to moot judicial controversies. 22  On the other
hand,  certain  pure  issues of law, most notably  constitutional
issues  but  also  certain questions of statutory  validity,  are
within  the  special  expertise of the  court,  rather  than  the
administrative agency.23  However, our cases make clear that only
the  purest  legal questions, requiring no factual  context,  are
exempt from the exhaustion requirement:
          If   a   procedural   challenge   to   agency
          decisionmaking  has simply  been  dressed  in
          constitutional clothing, or if the action  is
          an  attempt to substitute a damage  claim  in
          tort   for   an   unperfected  administrative
          remedy,  the  complainant must first  exhaust
          administrative remedies.  On the other  hand,
          if   the   claim   does  not  challenge   any
          particular decision by an agency and  instead
          calls upon the superior court to review  only
          the  validity  of  a statute,  exhaustion  of
          administrative remedies is not required.[24]
          
We have suggested that accusations that an agency has violated  a
statute are generally subject to the requirement of exhaustion.25
                      Under the Limited Entry Act, the CFEC  must
base the maximum number of permits on the maximum number of units
of  gear fished in that fishery during any one of the four  years
immediately preceding [limitation].26  The CFEC freely admits that
it  considers vessels equivalent to units of gear and claims that
they are equivalent for this type of fishery.  Although Doubleday
states  that this is obviously in violation of the Limited  Entry
Act,  he does not explain how or why another definition would  be
more  appropriate to this fishery.  Neither party  addresses  the
definition  of  unit  of gear in the Limited  Entry  Act  or  its
application to sablefish longline fisheries.
            The  term  unit  of gear is defined  by  statute  for
limited  entry  fisheries.  Alaska Statute  16.43.990(11)  states
that  a unit of gear  means the maximum amount of a specific type
of  gear  that  can  be  fished  by a  person  under  regulations
established  by  the  Board  of  Fisheries  defining  the   legal
requirements  for  that  type  of  gear.   By  its   terms,   the
implementation of this statutory definition requires  application
of expertise about the fishing industry.
          Definitions  for  unit  of  gear  for  some  distressed
fisheries   using types of gear other than longlines   have  been
provided by regulation:  unit of gear means the aggregate  amount
of gear operated from a single vessel.27 We have previously noted
the commissions  use of  the number of vessels to set the maximum
number  of  units  of  gear  in  the  Northern  fishery,  without
explicitly  ruling on whether the number of unit[s]  of  gear  is
equivalent to number of vessels.28  No definition for unit of gear
is provided for the sablefish fisheries in the definition section
of  the regulations, no definition of unit of gear is specific to
the  Northern  and  Southern fisheries,29 and  neither  side  has
pointed  to any additional regulations providing further  details
on  the appropriate procedures for setting the maximum number  of
units of gear in the sablefish longlining context.
          We cannot agree with Doubledays assertion that the CFEC
has  committed obvious error in using a vessel count to calculate
the   maximum  unit  of  gear.   In  the  absence  of  regulatory
clarification of the definition of units of gear, no basis exists
for  evaluating the allegation that the CFEC has improperly found
units  of  gear to be equivalent to number of vessels.  Doubleday
apparently believes the maximum number of units of gear should be
the  same  as the number of permit-holders fishing, but does  not
explain   why  that  more  clearly  equates  with  the  statutory
definition.  It is unclear from the record how many longlines  or
          operators are on a typical sablefish vessel or how one would go
about  determining the maximum number of longlines that could  be
operated  by  one  person  in accordance  with  the  legislatures
directive  in AS 16.43.990(11).  In summary, this term cannot  be
defined  without  factual  context and  expertise  regarding  the
fishing industry.
             This  question  clearly  falls  within  the  agencys
expertise.   For  that  reason, we apply  our  rule  that  it  is
axiomatic to our system of justice that we have a factual context
within  which to review a case.30  This agency decision has  been
made  in  a  factual  context we are ill-equipped  to  understand
without  a  record developed at the agency level.   We  therefore
conclude that Doubleday was required to exhaust this claim within
the agency appeal process.31
          2.   Doubleday did not exhaust available administrative remedies.
          Doubleday  did not raise any arguments regarding  error
in  setting  the  maximum number of permits  before  the  hearing
officer  or on appeal to the CFEC. Therefore, there is no dispute
that this element is met.
          3.   Doubledays failure to exhaust is not excused for futility.
          1.   Doubleday finally argues that his failure to exhaust his
administrative  remedies should be excused on  futility  grounds.
He  claims  that  the hearing officer did not have  authority  to
consider  Mr. Doubledays claims regarding the maximum  number  of
permits  CFEC  was required to issue.  He also appears  to  argue
that  the  CFEC  has rejected essentially the same arguments  and
facts  in several cases, and therefore raising the argument again
would be futile.
          While Doubleday is correct to the extent that he claims
that a hearing officer may not set aside a regulation on his  own
authority,32 Doubleday overlooks that the CFEC reviews all hearing
officer decisions on appeal.  Had he raised his challenge  before
the  agency, the agency would have had the opportunity to explain
its  use  of  expertise  and the facts  on  which  it  relied  in
developing  its  counting  methodology.   In  fact,  we  recently
remanded  a case for consideration of this same type of issue  to
the CFEC in May v. State, Commercial Fisheries Entry Commision;33
in  that  case,  we noted that the CFEC had already  amended  its
regulation  in  one  respect in response  to  Mays  petition  for
review.34  It is not futile to raise these issues before the CFEC,
because  the  CFEC  has the power to amend its  own  regulations.
Indeed,  the  CFEC  must have the opportunity to  consider  these
arguments  in  the  first  instance for the  exact  reasons  that
justify  the exhaustion of remedies: to develop a factual record,
apply its expertise, and provide a context for our review.
          Doubleday  also argues that the exhaustion  requirement
should  be  excused under a futility exception because  the  CFEC
rejected  a  similar  argument in a recent  case.35   That  case,
decided  considerably after Doubledays appeal  before  the  CFEC,
does  not  excuse Doubleday from the requirement that he  exhaust
his  remedies.   It would not have been futile for  Doubleday  to
raise  arguments and introduce factual evidence of data  relating
to  the  meaning  of units of gear before the CFEC.   Before  us,
Doubleday makes several unsupported factual claims regarding what
          data held by Department of Fish and Game and other commercial
fisheries regulating agencies would show on the issue of  whether
units  of  gear  and vessels are the same.  Had he  raised  these
issues before the CFEC, it would have been able to develop  these
facts  and  apply  its  expertise to the interpretation  of  this
information.   At this point, we have no basis to evaluate  these
alleged  facts, the details of which are nowhere in  the  record.
We  see  no obvious violation of the Limited Entry Act and remain
unable  to  evaluate  the agencys application  of  its  expertise
within the factual context of this case.36  The fact that neither
side has introduced evidence regarding the appropriate definition
of  unit  of  gear  under the statute is a result  of  Doubledays
failure to exhaust his remedies before the CFEC.
          Because it would not have been futile for Doubleday  to
raise  his claims before the CFEC, and because his failure to  do
so  results  in  a complete lack of a factual record  for  us  to
evaluate  the CFECs implementation of AS 16.43.990(11)s  unit  of
gear definition, we conclude that Doubleday may not now challenge
the  agencys use of vessel count to calculate the maximum  number
of permits in both the Northern and Southern fisheries.
     C.   The Superior Court Did Not Abuse Its Discretion In Finding
          That The Doubleday Appeals Were Neither Frivolous Nor Brought For
          Purposes Of Delay.
          
          The CFEC cross-appeals, arguing that the superior court
abused  its  discretion in finding that Doubledays  appeals  were
neither  frivolous nor brought for purposes of delay.   The  CFEC
claims  that  because Doubledays entire argument  rested  on  the
State  having specifically seized five boxes of records  and  the
court  found  it  not to have been shown that  the  records  were
seized or even existed, the court should have found the appeal to
have  been frivolous or brought for purposes of delay.  Not  only
did  the  records not exist, the CFEC claims, but  Doubleday  was
aware of their non-existence.  The CFEC claims that Doubleday has
knowingly continued to fish for 20 years on an interim permit  in
the Northern fishery that he knew he was not entitled to.
          Doubleday contends that he made his arguments regarding
the  maximum number of permits in good faith and not for purposes
of  delay.   He argues that he had a reasonable basis to  believe
other  records  existed that could help him because  the  federal
prosecutor   suggested  more  records  existed,   because   CFECs
paralegal told him that a state trooper had 107 pages of records,
and because his belief that his charts and delivery records still
existed was confirmed by the State.
          A  superior court sitting as an intermediate  court  of
appeal  has  broad  discretion to award  attorneys  fees.37   The
superior  court  found that Doubleday did not  bring  his  appeal
simply  for  purposes  of delay and that it  was  not  frivolous.
Generally,  we  find  an  abuse of discretion  in  the  award  of
attorneys  fees if the award is arbitrary, capricious, manifestly
unreasonable,  or improperly motivated.38  We  see  no  abuse  of
discretion in the superior courts conclusion that the appeal  was
neither frivolous nor brought for purposes of delay.
 IV. CONCLUSION
          Because Doubleday presented insufficient evidence  upon
which  the  CFEC could find that the State was at  fault  in  the
destruction  of records that might have established that  he  was
entitled to more participation points, we AFFIRM the CFECs denial
of  additional  points.  Because Doubleday failed  to  raise  his
challenge to the maximum number of permits before the CFEC and we
have  no  factual  context  in  which  to  evaluate  the  agencys
application of its expertise to the definition of units  of  gear
in  the sablefish longlining context, we decline to consider this
challenge.  Finally, because we see no abuse of discretion in the
superior  courts award of attorneys fees, we AFFIRM  that  award.
Accordingly,  we  AFFIRM, in all respects, the  decision  of  the
superior court that affirmed the decision of the CFEC.
_______________________________
     1     Johns  v. Commercial Fisheries Entry Commn,  758  P.2d
1256,  1260 (Alaska 1988) (holding that CFEC has authority  under
Limited Entry Act to adopt regulation establishing maximum number
of permits for non-distressed fishery).  20 Alaska Administrative
Code  (AAC) 05.310(f).   The Limited Entry Act is codified at  AS
16.43.010-.990 and is designed to promote conservation, sustained
yield  management  of  fisheries, and  the  economic  health  and
stability of commercial fishing.  AS 16.43.010.

     2     Simpson v. Commercial Fisheries Entry Commn, 101  P.3d
605,  607  (Alaska  2004) (citing Johns,  758  P.2d  at  1261-62)
(holding  that  for non-distressed fisheries, maximum  number  of
permits  must  be  no  lower than that dictated  by  statute  for
distressed fisheries).

     3    AS 16.43.240(a).

     4    20 AAC 05.320(e)(1)-(2).

     5    Simpson, 101 P.3d at 607-08.

     6    AS 16.43.250; AS 16.43.270.

     7    20 AAC 05.703(a).

     8    See 5 AAC 39.130(c): The first purchaser of raw fish, a
catcher-seller,  and an individual or company  that  catches  and
processes  or exports that individuals or companys own  catch  or
has  that  catch processed or received by another  individual  or
company, shall record each delivery on an ADF&G fish ticket. Fish
tickets  must  be  submitted  to a local  representative  of  the
department within seven days after delivery or final delivery  if
multiple  deliveries are made, or as otherwise specified  by  the
department, for each particular area and fishery.

     9     Doubleday obtained one continuance on the grounds that
he could not communicate with key witnesses, such as crew members
who  could verify his fishing history, because his conditions  of
probation  from a prior federal fishing violation prohibited  him
from  communicating with these crew members until  his  probation
ended.

     10     The day before that hearing date, Doubledays attorney
requested  another continuance.  Shortly thereafter  he  informed
the  hearing  officer  that virtually all of  Doubledays  fishing
records  were  unavailable as evidence for the  hearing,  because
federal and state authorities had seized the records as part of a
prosecution for some fishing violations in 1984-85.

     11     See  United States v. Doubleday, 804 F.2d 1091,  1093
(9th Cir. 1986).

     12    Id.

     13     At one point, a Freedom of Information Act request to
the  Executive Office for United States Attorneys   the  official
record-keeper for all records located in . . . the various United
States Attorneys offices  was denied with the notation that  [the
documents]  are  public records which may be  obtained  from  the
Clerk  of  the Court or from this office, upon specific  request,
subject  to  copying  fees.  The denial letter  contained  appeal
instructions;  there is no indication that  an  appeal  was  ever
taken.

     14     Conkey  v.  State,  Dept of  Admin.,  Div.  of  Motor
Vehicles, 113 P.3d 1235, 1237 (Alaska 2005).

     15     Pasternak v. State, Commercial Fisheries Entry Commn,
166 P.3d 904, 907 (Alaska 2007).

     16    Neither party has addressed the issue whether sanctions
for  spoliation  of  evidence are available in an  administrative
proceeding.  We assume, without deciding, that this is the case.

     17    Sweet v. Sisters of Providence in Wash., 895 P.2d 484,
491 (Alaska 1995).

     18    Id.

     19    Id. at 491-92.

     20     Doubleday  also alleges seizure of a  Christmas  gift
order  form and a calendar, but does not explain how these  items
could demonstrate participation in the subject fisheries.

     21     Eufemio  v. Kodiak Island Hosp., 837 P.2d  95,  98-99
(Alaska  1992).  Ordinarily, the trial court makes this  decision
in  the first instance and we review for abuse of discretion. Id.
at 98.  Here, the trial court did not explain its decision not to
reach this claim, apparently believing it was unnecessary because
it upheld the CFECs findings regarding the spoliation of evidence
claim.   However,  we believe that the issue  must  be  addressed
because  Doubleday  could conceivably qualify  for  the  Southern
fishery  with 16 points if the number of permits allowed were  to
increase.

     22    Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d
119, 121-22 (Alaska 1988).

     23    Moore v. State, Dept of Transp. & Pub. Facilities, 875
P.2d  765, 767 (Alaska 1994); see also Standard Alaska Prod.  Co.
v.  State,  Dept  of  Revenue, 773 P.2d 201,  207  (Alaska  1989)
([W]here a controversy involves only constitutional [issues], and
no  factual  issues, the exhaustion doctrine may be held  not  to
apply.).

     24    State, Dept of Transp. & Pub. Facilities  v. Fairbanks
N.  Star  Borough,  936 P.2d 1259, 1261 (Alaska  1999)  (internal
citations omitted).

     25     See  Moore, 875 P.2d at 767-68 (holding  that  Moores
action  for  declaratory relief was not subject to the exhaustion
requirement  and distinguishing it from cases in  which  claimant
argued there had been a violation of applicable statutes).

     26    AS 16.43.240(b), applied to non-distressed fisheries in
Johns v. Commercial Fisheries Entry Commn, 758 P.2d 1256, 1261-62
(Alaska  1988);  see also Simpson v. Commercial  Fisheries  Entry
Commn, 101 P.3d 605, 607 (Alaska 2004).

     27     See, e.g., 20 AAC 05.686 (In 20 AAC 05.680 -  20  AAC
05.686, unless otherwise specified . . . , unit of gear means the
aggregate amount of gear operated from a single vessel.).

     28     Simpson, 101 P.3d at 607-08 (CFEC therefore  proposed
limiting  the number of vessels in the fishery to 73, the  number
of vessels fishing in 1984, the season in which participation was
highest.).   See  also  Pasternak v. State, Commercial  Fisheries
Entry  Commn,  166 P.3d 904, 908 n.34 (Alaska 2007) (noting  that
Simpson does not foreclose litigants argument that correct number
to  measure units of gear was number of participants rather  than
number  of vessels, but nonetheless declining to rule on argument
because Pasternak had not shown prejudice).

     29    20 AAC 05.713 (2008).

     30    Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d
119, 122 (Alaska 1988).

     31     It  is  unclear whether Doubleday raises  a  separate
challenge to the methodology of counting vessels.  He argues that
[t]he maximum number [of units of gear] should be . . . 74 to 86.
The State responds, and we agree, that this argument is based  on
a  misreading  of Alaska Department of Fish and Game  data.   The
departments  chart does state that the number of permits  in  the
Northern fishery was 86 in 1984, but notes that [p]rior  to  1985
there  was not a [Northern fishery] sablefish permit card so  the
number of permits includes sablefish landings made on mixed  gear
and permit cards covering halibut, mixed fin fish, and salmon, as
well  as  sablefish.  Doubleday also makes an  assertion  at  one
point  that  CFEC used an incorrect number in the  past  for  the
Southern  fishery, but he later concedes that this was  corrected
by the CFEC, as recognized  in May v. State, Commercial Fisheries
Entry  Commn, 175 P.3d 1211,1213 n.5 (Alaska 2007), and that  the
number  of  vessels was in fact 18.  To the extent that Doubleday
is  attempting  to  claim that the methodology  of  counting  the
vessels  was  incorrect  in some other way,  the  same  rationale
applies as to his claim that the CFEC improperly used vessels  as
equivalent  to units of gear: This claim should have been  raised
before the agency in order to develop a factual record.

     32    Kalmakoff v. Commercial Fisheries Entry Commn, 693 P.2d
844,  846 n.3 (Alaska 1985) (Appellant could not [challenge  CFEC
regulations]  at  the administrative hearing  because  a  hearing
officer has no power to set aside a challenged regulation.).

     33    175 P.3d at 1213.

     34    Id. at 1213 n.5.

     35     Vincent  P.  Arbucci,  CFEC 89-331-A,  at  12-16,  23
(December 16, 2008) (final admin. review).

     36    The  argument that the CFEC has incorrectly interpreted
the  statutory  definition of units of gear by equating  it  with
vessels  for  all gear is not foreclosed by either  Pasternak  v.
State,  Commercial Fisheries Entry Commn, 166  P.3d  904  (Alaska
2007), in which we declined to reach the argument on grounds that
the  claimant could not show prejudice, id. at 908, or by Simpson
v.  State, Commercial Fisheries Entry Commn, 101 P.3d 605 (Alaska
2004), in which we found the argument waived for failure to raise
it  before  the  superior  court.  Id.  at  611.  We  have  never
conclusively  decided  this  issue or  had  an  adequate  factual
context  to approve CFECs application of the statutory definition
of units of gear.

     37     Alaska  R.  App.  P. 508(e); see  Cleaver  v.  State,
Commercial Fisheries Entry Commn, 48 P.3d 464, 470 (Alaska 2002).

     38     Rhodes  v.  Erion, 189 P.3d 1051, 1053 (Alaska  2008)
(quoting Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001)).

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