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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Widmyer v. State, Commercial Fisheries Entry Commission (12/9/2011) sp-6627

Widmyer v. State, Commercial Fisheries Entry Commission (12/9/2011) sp-6627

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

JIM L. WIDMYER,                                ) 
                                               )       Supreme Court Nos. S-14009/14010 
                        Appellant,             )       (Consolidated) 
                                               ) 
        v.                                     )       Superior Court Nos. 1KE-09-00308 CI 
                                               )       and 1KE-09-00309 CI 
STATE OF ALASKA,                               ) 
COMMERCIAL FISHERIES                           )       O P I N I O N 
ENTRY COMMISSION,                              ) 
                                               )       No. 6627 - December 9, 2011 
                        Appellee.              ) 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, First 
                Judicial District, Ketchikan, Trevor Stephens, Judge. 

                Appearances: Bruce B. Weyhrauch, Law Office of Bruce B. 
                Weyhrauch,       Juneau,    for  Appellant.      Thomas      Lenhart, 
                Assistant   Attorney   General,   and   John   J.   Burns,   Attorney 
                General, Juneau, for Appellee. 

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

                FABE, Justice. 

I.      INTRODUCTION 

                Jim Widmyer, a commercial fisher, applied for a permit to fish for sablefish. 

The   State   distributes   these   permits   largely   on   the   basis   of   past   participation   in   the 

----------------------- Page 2-----------------------

sablefish fishery, specifically participation between 1975 and 1984.               An applicant is 

deemed to have participated in a given year if the applicant landed 2,000 pounds of 

sablefish    that  year   or  if  the  applicant    would    have   landed    sablefish   if  not  for 

"extraordinary circumstances."  Widmyer, though he had been unable to land many fish 

between 1975 and 1984, argued that he qualified for participation due to extraordinary 

circumstances. The Commercial Fisheries Entry Commission and the superior court both 

determined      that  Widmyer      did  not  qualify   for  participation    due   to  extraordinary 

circumstances.     We affirm. 

II.     FACTS AND PROCEEDINGS 

        A.      Application And Initial Rejection 
                In 1973 the Alaska Legislature passed the Limited Entry Act.1               This act 

established the Commercial Fisheries Entry Commission and gave it the power to restrict 
entry   into   state   fisheries.2 In   1985   the   CFEC   restricted   entry   in   the   Northern   and 

Southern     Southeast   Inside   sablefish   longline   fisheries  (hereafter   the  Northern    and 

Southern fisheries), deciding that only 73 vessels per year would be permitted to harvest 
the Northern fishery and only 18 permitted to harvest the Southern fishery.3             The CFEC 

adopted a point system to allocate these entry permits.4        An applicant could claim points 

        1       Ch. 79,  1, SLA 1973; AS 16.43.010-.990 (2010). 

        2       Cleaver v. State, CFEC, 48 P.3d 464, 465 (Alaska 2002). 

        3       20 Alaska Administrative Code (AAC) 05.310(c)(1), (2) (2011); 20 AAC 

05.320(e); Simpson v. State, CFEC, 101 P.3d 605, 607-08 (Alaska 2004). 

        4       20 AAC 05.701; 20 AAC 05.711. 

                                                 -2-                                           6627
 

----------------------- Page 3-----------------------

on the basis of either "past participation" in the fishery or on the basis of "economic 
dependence" on the fishery.5 

                Jim Widmyer applied for entry permits in both the Northern and Southern 

fisheries on December 30, 1987.          He claimed to have participated in the fisheries in 

1977,    1978,    1979,   1982,   and   1983.   He    also  claimed    points  based    on  economic 

dependence. 

                CFEC regulations provide that an applicant can claim participation points 
for a given year if the applicant harvested at least 2,000 pounds of fish that year.6           If the 

applicant is unable to meet this standard, the applicant may nonetheless be able to receive 

participation    points   "[i]f   extraordinary   circumstances     prevented    an  applicant   from 
participating    in  the  fishery   in  a  given   season."7    CFEC     regulations    provide    that 

"[e]xtraordinary circumstances include temporary illness or disability, the loss of vessel 

or equipment through sinking, destruction, or extensive mechanical breakdown, and 
other similar objectively verifiable causes of non-participation."8 

                Widmyer claimed extraordinary circumstances in the Southern fishery for 

1977, 1978, 1979, and 1983, only claiming that he actually landed a catch in 1982.  In 

the   Northern   fishery,   Widmyer   had   no   fish   landings,   but   he   claimed   extraordinary 

circumstances       for  the   same    years   (1977,    1978,    1979,   and   1983).     Widmyer 

acknowledged in his application that he did "not have much of a chance" under the 

points system, but he sought points "on medical and hardship reasons." 

        5       20 AAC 05.701; 20 AAC 05.705. 

        6       20 AAC 05.705(a)(1)(A), (2)(A)(ii). 

        7       20 AAC 05.703(d). 

        8       Id. 

                                                 -3-                                            6627
 

----------------------- Page 4-----------------------

                 The   CFEC   sent   Widmyer   a   letter   on   January   7,   1988   requesting   that 

Widmyer sign a tax waiver allowing the CFEC to access Widmyer's tax returns.                          This 

letter   was   sent   by   certified   mail   and   was   returned   unaccepted.  Widmyer,   in   a   later 

hearing, stated that he did not, as a matter of principle, accept certified mail. 

                 On February 24, 1988, the CFEC sent Widmyer a letter stating that since 

it had no record of Widmyer fishing the Northern fishery, his application for that fishery 

was   denied.     This   letter   was   sent   by   certified   mail   and   was   returned   unaccepted. 

Widmyer called the CFEC on May 11, 1988 and during the call was informed that his 

application had been denied. 

                 In   May   1988   Widmyer   retained   attorney   Brad   Brinkman   to   handle   his 

applications.    On May 27, 1988, Brinkman sent the CFEC a letter requesting copies of 

Widmyer's "permit files."         On September 9, 1988, the CFEC replied, again requesting 

a   tax   waiver   from   Widmyer   as   well   as   "affidavits,   medical   records,   and   any   other 

relevant documents explaining the reason [he] could not participate in this fishery from 

1977-1979 and 1983."           This letter was sent by certified mail and was again returned 

unaccepted.     The CFEC re-sent the letter on October 3, 1988. 

                 On    June   13,   1988,    Brinkman      sent  a  letter  requesting     a  hearing    on 

Widmyer's application for the Northern fishery. On June 15, 1988, hearing officer Jesse 

Walters   replied,   granting   the   request   for   a   hearing   on   Widmyer's   Northern   fishery 

application. 

                 On April 17, 1989, the CFEC awarded Widmyer 16 of the 73 points he had 

claimed in his application for the Southern fishery, awarding him participation points for 

1982, the only year Widmyer had actually landed sablefish.                  The CFEC explained that 

if Widmyer disagreed with this assessment, he could request an administrative hearing. 

                                                    -4-                                              6627
 

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        B.      Administrative Hearing 

                Brinkman       responded     by   letter  on    April   20,   1989,    requesting    an 

administrative hearing on Widmyer's Southern fishery application.  Brinkman repeated 

Widmyer's arguments for participation points and economic dependence points and 

included a number of documents, mostly medical records, supporting Widmyer's claims. 

Brinkman also requested copies of Widmyer's "licensing records." The CFEC provided 

these on April 27, 1989. 

                On   April   25,   1989,   the   CFEC   notified   Widmyer   that   his   request   for   a 

hearing on his Southern fishery application had been granted.  On September 28, 1989, 

hearing officer Walters sent Widmyer notice that a hearing, covering both his Northern 

and Southern applications, would be held on November 3, 1989 in Ketchikan.                        This 

notice   was   sent   by  certified  mail   to  Widmyer   and     was   returned   unaccepted.      On 

October 26, 1989, hearing officer Walters called Brinkman about the hearing. Brinkman 

indicated that he had been unable to get in touch with Widmyer, presumably because 

Widmyer was out fishing, and Brinkman was unsure whether Widmyer was aware of the 

hearing.   On November 1, Brinkman sent the CFEC a letter indicating he had received 

a phone message from Widmyer requesting a later hearing. 

                The hearing nevertheless occurred on November 3, 1989, and Widmyer 
attended.9   At the hearing, Widmyer claimed participation points for 1978, 1979, 1982, 

and   1983   due   to   extraordinary   circumstances.   Widmyer   stated   that   in   1977   he   had 

sustained an injury when he "got a ratfish spine under [his] kneecap" and could not 

participate in either the Northern or Southern fisheries.   Widmyer claimed that in 1978 

his boat's transmission had failed and that this prevented his participation in either the 

        9       Due to a conflict, Brinkman was unable to attend, and after the hearing, 

Brinkman sent a letter to the CFEC indicating that Widmyer wished to represent himself 
to save money and that Brinkman was withdrawing as counsel. 

                                                  -5-                                              6627 

----------------------- Page 6-----------------------

Northern or Southern fisheries.        Widmyer claimed that in 1979 he had landed 4,000 to 

5,000 pounds of "mixed grey cod and black cod" in the Northern fishery but that they 

had spoiled before he could sell them.            Widmyer claimed that in 1983 he could not 

participate because of a mechanic's faulty repair to his hydraulic system. 

                Over   the   next   year   following   the   hearing,   Widmyer   submitted   several 

documents intended to substantiate his claims.  On November 7, 1991, Widmyer called 

the CFEC to inquire about his applications, and he told the CFEC that he would "get the 

last of his evidence into the commission as soon as possible."                On February 5, 1992, 

Widmyer   sent   a   handwritten   letter   to   the   CFEC,   providing   contact   information   for 

individuals who might be able to verify his statements concerning 1978.  Widmyer also 

stated that he had no further evidence to submit. 

        C.      Hearing Officer Decision 
                The CFEC took no action until September 18, 1997,10 when a new hearing 

officer, Jonathon Sperber, was assigned to Widmyer's case following hearing officer 

Walters's   retirement.      Hearing   officer   Sperber   sent   a   letter   to   Widmyer   listing   the 

documents in the record and confirming that Widmyer did not wish to add any new 

documents. In September, October, and November of 1997, hearing officer Sperber had 

several telephone conversations with Widmyer about the content of the record, and over 

this   period   several   new   items   were   added   to   the   record,   including   the   testimony   of 

Widmyer's brother. 

                Hearing officer Sperber issued his written decisions for both the Northern 

and   Southern   fisheries   on   November   21,   1997.       Hearing   officer   Sperber   awarded 

Widmyer zero points for the Northern fishery.   Regarding 1977, hearing officer Sperber 

        10      Widmyer applied for and received an interim use permit in 1988 to fish the 

Northern fishery pending the resolution of his application. 

                                                   -6-                                               6627 

----------------------- Page 7-----------------------

held that Widmyer had failed to produce sufficient evidence to substantiate his claim that 

a ratfish spine injury prevented his participation in the fishery.  For 1978, hearing officer 

Sperber ruled that Widmyer had "failed to produce convincing evidence that he did not 

participate in the 1978 fishery because of the transmission failure."                Regarding 1979, 

hearing officer Sperber found that Widmyer had proven that he caught 4,000 to 5,000 

pounds   of   sablefish   and   gray   cod,   but   held   that   because   Widmyer   had   not   proven 
participation for 1982-84, his claim for 1979 need not be considered.11  For 1983, hearing 

officer Sperber acknowledged that hydraulic failure could qualify as an extraordinary 

circumstance but concluded that Widmyer had deliberately failed to repair the hydraulics 

in order to preserve a breach of contract claim against the mechanic who negligently 

repaired the system.  Because  hearing officer Sperber concluded that Widmyer did not 

qualify for participation points in 1982-84, Widmyer was   not   eligible for economic 
dependence points.12 

                Hearing   officer   Sperber   awarded   Widmyer   31   points   for   the   Southern 

fishery.    Hearing   officer   Sperber   found   Widmyer   to   have   landed   4,484   pounds   of 

sablefish in 1982 and awarded him 16 points for that year.                  Hearing officer Sperber 

rejected Widmyer's claim for extraordinary circumstances in 1977, 1978, 1979, and 

1983 for the same reasons that he rejected those claims in his ruling on the Northern 

fishery.    Hearing     officer   Sperber    also  awarded     Widmyer      15   points  for  economic 

dependence, for a total of 31 points. 

        11      In order to claim participation points for 1975-1981, an applicant must have 

also received   participation points for at least one of the years 1982, 1983, or 1984. 
20 AAC 05.705(b); 20 AAC 05.707(b). 

        12      Under CFEC regulations, an applicant must receive participation points for 

at   least   one   of   the   years   1982,   1983,   or   1984   in   order   to   be   eligible   for   economic 
dependence points.       20 AAC 05.705; 20 AAC 05.707. 

                                                   -7-                                             6627
 

----------------------- Page 8-----------------------

        D.     Administrative Appeal 

               Widmyer, then represented by attorney Bruce Weyhrauch, appealed the 

hearing officer's decision to the CFEC on March 23, 1998.               Weyhrauch filed a brief 

arguing that Widmyer was entitled to participation and economic dependence points. 

               The CFEC did not resolve Widmyer's appeal until December 2006.  In its 

decision on the Northern fishery, the CFEC awarded Widmyer zero points.  The CFEC 

concluded that Widmyer had not established extraordinary circumstances for 1977, 1978, 

or   1983.   The    CFEC     determined    that,  even   if  Widmyer    may   have   demonstrated 

extraordinary circumstances for 1979, he could not be awarded participation points for 

that year since he had not participated in 1982-84. 

               In its decision on the Southern fishery, the CFEC affirmed hearing officer 

Sperber's   award   of   16   points   for   participation   in   1982   but   held   that   Widmyer   was 

entitled to more points for economic dependence.   The Limited Entry Act specifies that 

priority should be assigned to fishers on the basis of "past participation" and "economic 
dependence."13     CFEC regulations provide that economic dependence points can be 

achieved in two ways: (1) investment in a fishing vessel and (2) dependence on the 
fishery for income.14 Hearing officer Sperber had ruled that Widmyer was entitled to 

15 points for economic dependence but no points for vessel investment.                 The CFEC 

decided to award Widmyer the full amount of vessel investment points.  But the CFEC 

rejected Widmyer's extraordinary circumstances claims for 1977, 1978, 1979, and 1983. 

The CFEC thus awarded Widmyer 46 points for the Southern fishery. 

        13     AS 16.43.250. 

        14     20 AAC 05.705(b); 20 AAC 05.707(b). 

                                                -8-                                             6627 

----------------------- Page 9-----------------------

        E.      Petition For Reconsideration 

                Widmyer filed a petition for reconsideration on May 14, 2007.               Widmyer 

attached   several   new   affidavits   and   other   documents   and   sought   a   new   evidentiary 

hearing at which witnesses would testify.  The CFEC declined to allow additions to the 

record and reaffirmed its decisions. 

        F.      Superior Court Decision 

                Widmyer appealed to the superior court.           The superior court affirmed the 

CFEC, finding that Widmyer could not demonstrate extraordinary circumstances for 

1977, 1978, 1979, or 1983.        Widmyer appeals. 

III.    STANDARD OF REVIEW 

                The Limited Entry Act provides that "final administrative determinations 
by the [CFEC] are subject to judicial review as provided in AS 44.62.560 - 44.62.570."15 

Alaska     Statute  44.62.560     and  AS    44.62.570    are  provisions    of  the  Administrative 

Procedure   Act   governing   judicial   appeals   from   administrative   adjudications.   Alaska 

Statute 44.62.570 provides: 

                Inquiry in an appeal extends to the following questions:            (1) 
                whether the agency has proceeded without, or in excess of 
                jurisdiction;   (2)   whether   there   was   a   fair   hearing;   and   (3) 
                whether there was a prejudicial abuse of discretion. Abuse of 
                discretion is established if the agency has not proceeded in 
                the   manner   required   by   law,   the   order   or   decision   is   not 
                supported by the findings, or the findings are not supported 
                by the evidence. 

        15      AS 16.43.120. 

                                                  -9-                                              6627 

----------------------- Page 10-----------------------

In administrative appeals, we directly review the agency action in question.16  We review 

the commission's factual findings under the substantial evidence standard.17             Substantial 

evidence is "such relevant evidence as a reasonable mind might accept as adequate to 
support a conclusion."18 We apply a deferential "reasonable basis" standard of review 

to an agency's interpretation of its own regulations.19 

IV.     DISCUSSION 

        A.      Waived Points On Appeal 

                In his initial statement of points on appeal, Widmyer listed a challenge to 

the CFEC's determination to deny him participation points for 1984 in the Southern 

fishery and the CFEC's determination to deny him participation points for 1982 and 

1984   in   the   Northern   fishery.   But   Widmyer's   briefs   do   not   discuss   1982   or   1984, 

focusing instead on the years 1977, 1978, 1979, and 1983. Thus, we address Widmyer's 
arguments relating to those years in this appeal.20 

        B.      Record Issues 

                Widmyer   attempts   to   rely   on   evidence   provided   after   the   close   of   the 

record. When Widmyer filed his petition for reconsideration with the CFEC, he attached 

several new pieces of evidence, including affidavits of acquaintances. Widmyer attempts 

        16      Northern Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 633 

(Alaska 2000). 

        17      Jones v. State, CFEC, 649 P.2d 247, 249 n.4 (Alaska 1982). 

        18      State, CFEC v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991) (quotingKeiner 

v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)). 

        19      Bartlett v. State, CFEC, 948 P.2d 987, 990 (Alaska 1997). 

        20      We have explained that an issue not discussed in the appellant's briefs is 

considered waived.      See Kellis v. Crites, 20 P.3d 1112, 1115 (Alaska 2001). 

                                                 -10-                                           6627
 

----------------------- Page 11-----------------------

to rely on this evidence in his appeal to this court.  The CFEC argues that the record was 

closed and Widmyer could not add new evidence with his petition. 

                Widmyer makes two arguments to justify his use of this evidence.                  First, 

he argues that the CFEC did in fact consider this evidence in its order on reconsideration. 

Therefore, according to Widmyer, this evidence is part of the administrative record and 

may be cited on appeal.  Second, Widmyer argues that, if the CFEC did not consider this 

new evidence, the CFEC abused its discretion. 

                1.	     The   CFEC   did   not   consider   the   new   evidence   in   Widmyer's 
                        petition for reconsideration. 

                Widmyer argues that the CFEC "did discuss that [new] evidence."  But 

when the CFEC issued its order on reconsideration, it explicitly stated that its decision 

was based on the record as of December 4, 2006, the time of the original CFEC decision. 

The CFEC decision itself also stated that the CFEC declined to "accept the additional 

evidence offered as part of the Petition for Reconsideration."             The CFEC also issued a 

"supplemental" decision explicitly stating that it was excluding Widmyer's fish tickets 
from after 1985.21    In light of these statements, we conclude that the CFEC did not admit 

Widmyer's new evidence. 

        21      When a fisher sells a catch to a processor, the processor is required to 

generate   a   record   of   this   sale   known   as   a   fish   ticket. 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  individual's    or  company's      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 . . . ."). 

                                                  -11-	                                           6627
 

----------------------- Page 12-----------------------

                2.	     The    CFEC      could    permissibly     decline    to  consider    the   new 
                        evidence        submitted         with     Widmyer's          petition      for 
                        reconsideration. 

                We next address the question whether, assuming that the CFEC did exclude 

the new evidence in Widmyer's petition for reconsideration, it abused its discretion in 

ignoring this new evidence.   Widmyer argues that it would be an abuse of discretion for 

the   CFEC   to   exclude   this   evidence.    Widmyer   argues   that   the   new    evidence   was 

necessary because "the commission had misunderstood several important points." 

                The record establishes that Widmyer had ample opportunity to be heard. 

He was afforded a hearing and multiple opportunities for appeal.               He had over twenty 

years to gather and present evidence. Widmyer also had adequate notice.  Widmyer had 

many opportunities to present evidence, and he could not have reasonably expected to 

be able to present new evidence in his petition for reconsideration after so many earlier 

opportunities. 

                Further, the hearing provided to Widmyer by the CFEC comported with the 

Limited Entry Act.       That act, which created the CFEC, included a provision governing 
regulations and hearing procedures.22          The Limited Entry Act granted the CFEC the 

power to promulgate regulations "necessary or proper in the exercise of its powers," 
including regulations covering the procedures used in hearings.23   The original version 

of the Limited Entry Act also provided that "[c]ommon law rules of evidence apply to 

investigations,   hearings     and   proceedings     before   the  commission,   except   when      the 

commission   determines   that   their   application   is   not   required   in   order   to   assure   fair 

        22      AS 16.43.110. 

        23      AS 16.43.110(a), (b). 

                                                 -12-                                              6627 

----------------------- Page 13-----------------------

treatment of all parties."24      In 1981, the phrase "common law rules of evidence" was 

changed to "Alaska Rules of Evidence."25              The legislative history does not include a 

reason for this change.26     In 1984, the Alaska Legislature added a new subsection to this 

provision, which provided that "[t]he commission shall adopt regulations to provide for 
the correction of administrative error."27       The legislative history for this change does not 

specifically   discuss   the   procedural   rules   that   are   appropriate   when   the   commission 
reconsiders its own decisions.28 

                Taken as a whole, the Limited Entry Act, the subsequent amendments to 

it, and the legislative history of the Act and its amendments indicate that the commission 
has   the   power   to   regulate   its   own   procedures.29 Nothing   in   the   statute   requires   (or 

prohibits)   the   acceptance   of   new   evidence   on   the   reconsideration   of   a   commission 

        24      Ch. 79,  1, SLA 1973. 

        25      Ch. 47,  1, SLA 1981. 

        26       1981 Senate Journal 38. 

        27      Ch. 145,  6, SLA 1984. 

        28       1983 House Journal 973 ("Section 3 of the bill instructs the commission to 

adopt regulations governing the correction of its administrative errors, as, for example, 
where an applicant has been mistakenly credited with points for vessel ownership when 
the applicant did not own a vessel.  This section will not allow the commission to undo 
discretionary determinations made by previous members of the commission.                       Nor will 
it require the commission to reopen closed applications when a court determines that the 
commission has misinterpreted a statute or regulation."). 

        29      It should be noted that the Limited Entry Act expressly provides that the 

Administrative Procedure Act does "not apply to adjudicatory proceedings of the" CFEC 
except to the extent that an applicant has the right to appeal a CFEC determination to the 
superior court.    AS 16.43.120(a). 

                                                  -13-                                             6627
 

----------------------- Page 14-----------------------

decision.    Therefore, the CFEC's decision to exclude Widmyer's new evidence was 

permissible under the Limited Entry Act. 

                Finally,    Widmyer's       hearing    was   consistent    with   the   administrative 

regulations     governing     the  CFEC.      20   AAC     05.1850     is  titled  "Reconsideration." 

Subsection (b) provides, in part, that the CFEC "will grant reconsideration only if the 

commission determines that a question of law, fact, or discretion exists that might lead 
the   commission   to   modify   or   reverse   its   final   decision."30 The   regulation   does   not 

expressly     address    whether    the   CFEC     is  obligated   to  accept   new    evidence    upon 

reconsideration.  The regulation does state that on reconsideration the commission will 

consider     factual  questions,    but   the  ability  to  examine     questions   of  fact  does   not 
necessarily require the acceptance of new evidence.31           We therefore conclude that it was 

not an abuse of discretion for CFEC to decline to consider the new evidence. 

        C.      Extraordinary Circumstances Claims 

                In Cleaver v. State, CFEC, a fisher sought "extraordinary circumstances" 

points,   and   the   administrative   hearing   officer   applied   a   three-part   test   to   determine 

whether sufficient extraordinary circumstances existed: 

                (1) whether the applicant had the specific intent to participate 
                in the fishery, (2) whether he was prevented from doing so 
                due to some extraordinary circumstances, and (3) whether, 

        30      20 AAC 05.1850(b). 

        31      Cf. Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895 

P.2d 497, 506 (Alaska 1995) (concluding that where "[the movant] effectively moved 
the trial court to reconsider its ruling based upon evidence that was not before it at the 
time it rendered its decision [on summary judgment]," it was not an abuse of discretion 
for the trial court to deny the motion   to reconsider because the movant "had ample 
opportunity to secure the affidavits and depositions that it deemed necessary to oppose 
the summary judgment motion" and "provided no explanation for the delay in presenting 
the evidence"). 

                                                  -14-                                            6627
 

----------------------- Page 15-----------------------

                 despite those circumstances, he made all reasonably possible 
                 efforts to participate in the fishery.[32] 

In  Cleaver, we analyzed Cleaver's claim for extraordinary circumstances within this 
three-part analysis.33     We have held that "the applicant bears the burden of establishing 

qualification for all claimed points."34          We evaluate Widmyer's claims for each year 

under this three-part test. 

                 1.      1977 

                         a.      Intent to participate 

                 Widmyer argues that he did intend to fish for sablefish in 1977 and that he 

had recently installed gear appropriate to fish sablefish.             We have previously held that 
installing gear suited to harvesting a particular fish is indicative of intent.35              Widmyer 

also points to an affidavit by an acquaintance, Lorie Kolanko, who stated that Widmyer 

intended to fish sablefish in 1977. 

                 The   CFEC   argues   that   Widmyer's   statement   of   his   own   intent   is   not 

credible.    The   CFEC,   in   a   point   that   applies   to   all   of   Widmyer's   claims,   notes   that 

Widmyer has made numerous inconsistent statements over the course of the adjudication 

        32       48 P.3d 464, 468 (Alaska 2002). 

        33      Id. at 468-70. 

        34      Lewis     v.  State,   CFEC,     892    P.2d   175,   183   (Alaska     1995);  see    also 

20    AAC     05.520(a)     ("Every    applicant     shall  have    the  burden     of  establishing     his 
qualifications for an entry permit. Specific evidence will be requested on the application 
form for that purpose.        The commission may at any time require an applicant to submit 
additional evidence in affidavit or other form relating to his qualifications."); 20 AAC 
05.1820(d)      ("The    applicant   or   other   party   shall   bear  the  burden    of   proving   by   a 
preponderance of the evidence that a determination of the commission is erroneous."). 

        35       Suydam v. State, CFEC, 957 P.2d 318, 324-25 (Alaska 1998). 

                                                   -15-                                              6627
 

----------------------- Page 16-----------------------

of his application.  The CFEC also argues that the Kolanko affidavit is very vague as to 

dates or other specifics. 

                While Widmyer claimed to have acquired gear specifically for the purpose 

of harvesting sablefish, he has provided no evidence of this.              The only evidence of his 

intent to fish in 1977 are his and Lorie Kolanko's statements.  We have previously held 

that a trier of fact may permissibly disregard a fisher's testimony of the fisher's intent to 
fish since the "witness has an interest in the outcome of the case."36 

                        b.      Extraordinary circumstances 

                Widmyer argues that in 1977 an injury from a ratfish spine prevented him 

from fishing.      Widmyer, Paul Peterson (a "fishing colleague"), and Lorie Kolanko all 

stated under oath that this injury prevented Widmyer from participating in either fishery. 

The CFEC argues that there is no medical evidence confirming the ratfish injury.  The 

CFEC also argues that the Kolanko and Peterson affidavits are unspecific and do not 

establish    that  Widmyer's       injury  was    sufficiently   serious   to  be   an  "extraordinary 

circumstance." 

                CFEC      regulations     provide    that  extraordinary     circumstances      "include 

temporary illness or disability," a category that presumably would include an injury like 
Widmyer's.37       However,   Paul   Peterson's   affidavit   stated   that   the   ratfish   injury   left 

Widmyer   "laid   up   for   weeks,"   and   Widmyer   claims   that   he   sustained   the   injury   in 

September, two months before the Northern and Southern fisheries closed.  The CFEC 

notes that Widmyer made a successful lingcod landing after his alleged September injury 

but before the close of the sablefish fisheries.  Widmyer counters that he does not recall 

making this landing and that the fish ticket may be inaccurate.  He also argues that it was 

        36      State, CFEC v. Baxter, 806 P.2d 1373, 1375 (Alaska 1991). 

        37      20 AAC 05.703(d). 

                                                  -16-                                               6627 

----------------------- Page 17-----------------------

a very small landing and it may have been incidental to his ferrying friends on a hunting 

trip.  Nevertheless, there is sufficient evidence to support the CFEC's conclusion that, 

even if Widmyer was injured in September, he still had time to participate in the fishery 
later.38 

                        c.      Reasonable efforts 

                Widmyer argues that his physical impairment prevented any efforts to fish. 

The CFEC responds that, since Widmyer's injury occurred well before the close of the 

sablefish fisheries, Widmyer has not established that his failure to fish was reasonable. 

Based on the evidence discussed above, we conclude that the CFEC was justified in 

finding that Widmyer had not adequately demonstrated that he undertook reasonable 

efforts to participate. 

                2.      1978 

                        a.      Intent 

                Widmyer's argument that he intended to fish in 1978 is supported by his 

own   testimony   and   Lorie   Kolanko's   affidavit.        The   CFEC   argues   that   Widmyer's 

testimony and the Kolanko affidavit are not credible.              The CFEC notes that Widmyer 

stated   during   his   hearing   that   Kolanko   was   unlikely   to   remember   the   details   of   his 
fishing.39 

        38      We     have   held   in  several    cases   that  an  event   did   not   constitute   an 

extraordinary circumstance where time remained for the fisher to recover from the event 
and still fish.  See, e.g., Nelson v. State, 186 P.3d 582, 586 (Alaska 2008). 

        39      In   a  note   to  the   CFEC,     Widmyer      wrote    that  "you    may    call  Lorie 

Kolanko . . . although she remembers nothing." 

                                                  -17-                                             6627
 

----------------------- Page 18-----------------------

                        b.      Extraordinary circumstances 

                Widmyer argues that his boat's transmission failed in the fall of 1978 and 
that this failure constituted an extraordinary circumstance.40             According to Widmyer, 

repairing the transmission was quite time-intensive and prevented him from fishing for 

sablefish. The CFEC notes that these transmission problems only lasted for six weeks at 

most, and that the sablefish fisheries were open both before and after the six-week period 

Widmyer experienced transmission problems. 

                We have previously determined that when an applicant had time to repair 

a   mechanical   problem   and   then   return   to   fishing,   the   mechanical   problem   did   not 

constitute an extraordinary circumstance.           In Nelson v. State, CFEC, we affirmed the 

CFEC's   determination   that   mechanical   problems   had   not   constituted   extraordinary 

circumstances in part because "the sablefish fishery season was two and a half months 

long" and "it was more than likely that [the applicant] had ample time to have a gear 
failure and still get back to fishing after a repair."41 

                        c.      Reasonable efforts 

                Widmyer argues that it was reasonable for him not to fish while his boat 

lacked a functioning transmission.         The CFEC notes that there is no documentation of 

Widmyer's   transmission   repairs   and   that   Widmyer   still   had       time   to  fish  after   the 

transmission had been repaired. We conclude that the CFEC was justified in finding that 

Widmyer did not prove that he undertook reasonable efforts to repair his transmission 

and resume fishing. 

        40      In his appellant's brief, Widmyer states that his mechanical breakdown was 

in the fall of 1978, but he had earlier stated the breakdown occurred in the spring. 

        41      186 P.3d at 586 (internal quotations omitted). 

                                                  -18-                                              6627 

----------------------- Page 19-----------------------

                3.      1979 

                The CFEC acknowledges that Widmyer's 1979 catch of sablefish and gray 

cod did constitute participation in the Northern fishery but argues that Widmyer is not 

entitled to participation points for 1979 because he did not receive any participation 

points for 1982-84.      Regarding the Southern fishery, the CFEC argues that Widmyer 

does not deserve "extraordinary circumstances" participation points for 1979. 

                       a.      Intent 

                Widmyer's      testimony    and   the  affidavit   of  Jerry  Heisler   (Widmyer's 

crewmember) support Widmyer's intent to fish the Southern fishery in 1979. The CFEC 

argues that only Widmyer's own testimony and post-record evidence support Widmyer's 

intent argument. 

                       b.      Extraordinary circumstances 

                Widmyer argues that, while he was able to land a large catch of sablefish 

and gray cod in the Northern fishery, severe weather prevented him from depositing that 

catch before it spoiled.     Widmyer claimed that the weather caused Jerry Heisler to quit 

upon   docking   in   Ketchikan   with   the   spoiled   fish. Widmyer   claims   that   the   severe 

weather and his sudden lack of a crewmember constituted extraordinary circumstances 

that prevented him from fishing the Southern fishery.            The affidavit of Lorie Kolanko 

states that there was unusually severe weather in the fall of 1979. Widmyer also includes 

contemporary newspaper accounts of severe weather. 

                The CFEC argues, correctly, that Widmyer's evidence on this issue was all 

submitted after the close of the record.        The CFEC also notes that Widmyer's current 

argument      that  severe   weather    prevented    his  participation   contradicted    his  earlier 

statement that the severe weather only lasted "2 to 3 days." The CFEC further points out 

that the newspaper accounts provided by Widmyer were published three weeks before 

the end of the Southern fishery season. 

                                                -19-                                           6627
 

----------------------- Page 20-----------------------

                Even if Widmyer's new submissions in his petition for reconsideration are 

considered, we conclude that the CFEC was correct that Widmyer did not establish 

extraordinary circumstances.        Widmyer testified that the vessel he owned at that time, 

the GULF KID, was incapable of handling the usual weather in the sablefish fishery.  We 

have noted on several occasions that lack of appropriate equipment does not qualify as 
an extraordinary circumstance.42 

                        c.      Reasonable efforts 

                Widmyer   argues   that   his   non-participation   in   the   Southern   fishery   was 

reasonable because of the severe weather and his lack of a sufficient crew.                Regarding 

the weather, we conclude that the CFEC was correct in finding that even if the weather 

was severe enough to constitute an extraordinary circumstance, there was sufficient time 

after the weather had passed for Widmyer to participate.  Widmyer landed in Ketchikan 

in September or October 1979, when Jerry Heisler quit.  The Southern fishery closed on 

November 15.       It is not clear exactly how much time remained until closing, but it was 

at least two weeks and probably closer to a month.  In his petition for reconsideration, 

Widmyer submitted several news articles documenting severe weather in Alaska.  But 

these   news   items   are   dated   several   weeks   before   the   end   of   the   fishery. We   have 

previously held that even if an extraordinary circumstance befalls a fisher, reasonable 

efforts to participate are required if the fishery remained open for a significant amount 
of time afterwards.43 

        42      Pasternak v. State, CFEC, 166 P.3d 904, 910 (Alaska 2007); Johnson v. 

State, CFEC, Mem. Op. & J. No. 1199, 2005 WL 182959, at *5 (Alaska, Jan. 26, 2005); 
Cleaver v. State, CFEC, 48 P.3d 464, 469 (Alaska 2002) ("[L]ack of experience and 
appropriate equipment do not constitute extraordinary circumstances . . . ."). 

        43      See Nelson, 186 P.3d at 586. 

                                                 -20-                                            6627
 

----------------------- Page 21-----------------------

                As to Widmyer's lack of a crewmember, the CFEC argues that Widmyer 

has provided no evidence that his failure to find a new crewmember was reasonable.  The 

CFEC notes that the affidavit of Jerry Heisler, the crewmember who quit, states that 

Widmyer should have been able to find someone else to go with him.  In interpreting the 

reasonable efforts requirement, we have previously required applicants to prove that they 
actually   undertook   reasonable  efforts.44       In   this   context,   that   requirement   obligates 

Widmyer to prove at a minimum that he had tried to hire a crewmember. 

                4.       1983 

                         a.      Intent to participate 

                Widmyer argues that he intended to fish in both the Northern and Southern 

fisheries in 1983.  The CFEC argues that only Widmyer's own "self-serving" testimony 

supports his intent to fish.  The CFEC reiterates its arguments about Widmyer's lack of 

credibility and notes that Widmyer never acquired a license in 1983 for sablefish. 

                         b.      Extraordinary circumstances 

                Widmyer argues that faulty repairs to his boat's hydraulic system prevented 

his participation in both the Northern and Southern fisheries in 1983.  Widmyer argues 

that he lacked the funds necessary to repair the hydraulic system until he successfully 

obtained a settlement for the faulty repair.  The CFEC argues that Widmyer's statement 

that   he   was   able   to   fix   the   system   in   two   hours   belies   his   claim   that   this   problem 

prevented his fishing for sablefish.         And the CFEC argues that to the extent Widmyer 

elected   not   to   fix   the   hydraulic   system   in   order   to   preserve   his   lawsuit   against   the 

mechanic,   that   was   Widmyer's   own   choice.        The   CFEC   maintains   that   Widmyer's 

argument   about   being   unable   to   afford   the   repair   was   only   made   in   his   petition   for 

reconsideration and was unsupported by any documentation. 

        44      See, e.g., Cleaver, 48 P.3d at 469-70. 

                                                   -21-                                               6627 

----------------------- Page 22-----------------------

                We have repeatedly held that an economic choice by the applicant not to 
fish cannot qualify as an extraordinary circumstance.45           Similarly, we have determined 

that   the  inability  to  pay   for  needed    repairs  does   not  qualify   as  an  extraordinary 
circumstance.46     Consequently, we conclude that the CFEC was correct in determining 

that Widmyer failed to establish extraordinary circumstances. 

                        c.     Reasonable efforts 

                Widmyer      argues   that   he   aggressively   sought   the   money   to  make   the 

necessary     repairs   to  his  hydraulic   system.   The    CFEC     maintains    that   Widmyer's 

argument   about   lack   of   funds   is   unsupported   by   any   evidence   and   that   Widmyer's 

election not to fix the hydraulic system was his own economic choice.                  As explained 

above, we have held that an economic choice not to fish will not qualify the applicant for 

extraordinary circumstances points.         In Cleaver v. State, CFEC, we determined that an 

applicant's failure to seek a loan to pay for needed repairs meant that the applicant had 
not engaged in reasonable efforts.47 

        45      See May v. State, CFEC, 175 P.3d 1211, 1219 (Alaska 2007); Johnson, 

Mem. Op. & J. No. 1199, 2005 WL 182959, at *5; see also Younker v. State, CFEC, 598 
P.2d 917, 923 (Alaska 1979) ("The circumstances surrounding [applicant's] failure to 
gill net in 1971 were not unavoidable.   He could have quit his teaching job and entered 
the gill net fishery on the F/V LINDA MARNELL .  Instead, he made his election to forego 
gill netting.  While it may have been a sensible election, it was not the only one available 
to him."). 

        46      Cleaver, 48 P.3d at 469. 

        47      Id. at 469-70. 

                                                 -22-                                           6627
 

----------------------- Page 23-----------------------

        D.      Economic Dependence Points 

                CFEC     regulations    provide   that  an  applicant   is  eligible  for  economic 

dependence       points   if  the   applicant    can   prove    participation    (or  extraordinary 
circumstances) in 1982, 1983, or 1984.48         The CFEC found that Widmyer participated 

in   the  Southern    fishery   in  1982   and   awarded    him   the  full  amount    of  economic 

dependence points.  The CFEC found that Widmyer did not participate in the Northern 

fishery in 1982, 1983, or 1984, and the CFEC accordingly declined to reach the issue of 

whether Widmyer was entitled to economic dependence points in the Northern fishery. 

Widmyer   argues   that   extraordinary   circumstances   prevented   his   participation   in   the 

Northern     fishery   in   1983.    Widmyer       maintains    that  if  we   find   extraordinary 

circumstances to exist in 1983, this case must be remanded to the CFEC to consider 

whether Widmyer is entitled to economic dependence points in the Northern fishery.  But 

because     we   affirm    the  CFEC's     determination     that   Widmyer     did   not   establish 

extraordinary circumstances for 1983, we need not reach this question. 

V.      CONCLUSION 

                For   the   foregoing   reasons,   we   AFFIRM   the   superior   court's   decision 

upholding the CFEC determination in all respects. 

        48      20 AAC 05.705(b); 20 AAC 05.707(b). 

                                                -23-                                             6627 
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