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Dominish v. Commercial Fisheries Entry Commission (12/8/95), 907 P 2d 487
NOTICE: This is subject to formal 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,
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THE SUPREME COURT OF THE STATE OF ALASKA
STEPHEN R. DOMINISH, )
) Supreme Court No. S-6047
) Superior Court No.
v. ) 3AN-91-8813 CI
STATE OF ALASKA, COMMERCIAL ) O P I N I O N
FISHERIES ENTRY COMMISSION, )
Appellee. ) [No. 4290 - December 8, 1995]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Joan Woodward, Judge.
Appearances: C. Michael Hough, Homer, for
Appellant. Martin M. Weinstein, Assistant
Attorney General, Juneau, and Bruce M.
Botelho, Attorney General, Juneau, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
In 1975 Michael Dominish submitted a timely application
for a Cook Inlet salmon drift gill net entry permit. The
Commercial Fisheries Entry Commission (CFEC) concluded that
Dominish qualified for only twelve of the thirteen points
necessary to obtain the permit, and denied his application.
In the following decade and a half, Dominish appealed
to CFEC on a variety of bases. After considering Dominish's
application numerous times, CFEC denied him a permit. The
superior court, sitting as an intermediate appellate court,
affirmed CFEC's determination. Dominish appeals. We affirm.
II. FACTS AND PROCEEDINGS
In 1975 Michael Dominish submitted to CFEC a timely
application for a Cook Inlet salmon drift gill net entry permit.1
Dominish claimed points on a variety of bases: participation as a
gear license holder from 1966-69; 1970 participation points, even
though he participated in the Peninsula-Aleutians drift gill net
fishery that year; 1971 participation points, although he
participated in the Prince William Sound drift gill net fishery
that year; 1971 income dependence points; 1972 participation and
income dependence points, even though he participated in no
Alaska salmon fishery that year, allegedly due to illness; points
for investment in a vessel; and points due to the lack of
availability of an alternative occupation (AAO) in the area of
Ohio in which he was living during a portion of the relevant
period. See AS 16.43.250; 20 Alaska Administrative Code (AAC)
The CFEC requested more information. It did not
receive the requested information. On September 9, 1975, it
awarded Dominish a total of twelve of the necessary thirteen
points: one point for each year of participation from 1966-68;
two points for 1969 participation; one point for consistent
participation in 1969; and six points for vessel investment. The
remainder of Dominish's claims for points were denied.
Dominish requested a written hearing. The hearing
officer made additional requests to Dominish for evidence,
finally setting a May 1, 1976, deadline for the submission of
additional evidence. Dominish submitted no additional evidence.
Still later, the hearing officer himself attempted to obtain
information relating to Dominish's claim for AAO points. He was
On October 7 the hearing officer issued a
recommendation that Dominish receive only the twelve points
already awarded. The hearing officer denied Dominish's claims
regarding 1970, 1971, and 1972 participation points, since (1)
Dominish had not fished in the Cook Inlet fishery those years;
(2) Dominish had not established that medical problems prevented
him from fishing in 1972; (3) Dominish had failed to prove that
he had specific intent to fish the Cook Inlet fishery in 1972;
and (4) Dominish had not demonstrated he used all reasonable
efforts to participate in 1972. The hearing officer also
recommended that Dominish not receive AAO points, concluding that
census statistics failed to support Dominish's claim that in 1972
he lived in an area that qualified as a region where alternative
occupations were deemed unavailable.
On October 19 Dominish sent CFEC a letter requesting
further review of his application. At the end of October CFEC
set a mid-November review hearing date and invited Dominish to
submit more evidence. Apparently Dominish failed to attend the
Four days after the review hearing, CFEC received a
letter from Dominish, postmarked two days before the hearing,
informing CFEC that he had returned to Ohio to gather medical
evidence. Dominish's letter also mentioned, apparently for the
first time, that his 1972 application for the Cook Inlet fishery
had been refused because it was untimely (i.e., it was postmarked
one day late).
In mid-December CFEC informed Dominish by letter that
the commissioners had adopted the hearing officer's
recommendations. Later that month, Dominish's brother wrote to
CFEC requesting that it consider additional medical records that
Dominish was in the process of obtaining. CFEC informed Dominish
in January 1977 that his application was being denied for
insufficient points. However, in March CFEC reconsidered and
informed Dominish that it would consider additional medical
evidence. In April Dominish submitted additional evidence.
Later that month CFEC once again denied Dominish's claim.
In June 1978 Dominish complained to CFEC by letter that
CFEC had never attempted to permit him to pay a late filing fee
for his 1972 gear license application for Cook Inlet. Dominish
also provided, among other things, an application envelope
bearing a postmark evidencing that Dominish mailed his
application one day late.
Later in June Dominish's attorney requested that
Dominish's application be re-opened and reconsidered. In June
and July CFEC communicated with Dominish's attorney and agreed to
re-open the application. CFEC expressed to Dominish's attorney
its preference to proceed without remanding the matter to a
hearing officer, but also requested that Dominish's attorney
express any preference in this regard. In September Dominish's
attorney responded by indicating to CFEC that "the matter can be
more expeditiously handled by the Commission itself."
In July 1979, CFEC referred the matter to a hearing
officer. In mid-December Dominish's attorney wrote to inquire
about Dominish's ability to take advantage of recent legislation
that provided for additional points based upon the pooling of
points yielded by participation in other fisheries. AS
16.43.250(d) as amended by ch. 64 ' 1, SLA 1979. The hearing
officer replied that Dominish was ineligible for these points
since he had not applied for permits to participate in other
The hearing officer wrote to Dominish's attorney in
February and March 1981, inquiring as to Dominish's position
regarding closing of the record. On December 1, after the former
hearing officer resigned, the replacement hearing officer wrote
to Dominish, advising him that the record would be closed on
December 30, 1981. However, he also advised Dominish that a
supplemental hearing on an extension might be available and
"[a]ny such request for a supplemental hearing or an extension of
time should be made as soon as possible and must be made by the
deadline set above and must be made in writing." On January 7,
1982, after the deadline had passed, CFEC received a letter from
Dominish's attorney indicating that Dominish was still in the
process of gathering medical records. The letter was dated
December 31, 1981. No additional evidence was submitted, so in
March 1982 the hearing officer informed Dominish that he would be
writing a decision on the application.
CFEC apparently received no interim communication from
Dominish, and the hearing officer issued his recommendation in
April 1982. He determined that Dominish should remain classified
with twelve points. The hearing officer concluded that
Dominish's failure to obtain a 1972 gear license was not the
result of unavoidable circumstances, since the late application
was caused by Dominish's own neglect. He further concluded that
Dominish's reliance on Fish and Game to inform him of late
application procedures did not relieve him of his "duty to know
the licensing requirements which govern his livelihood." The
hearing officer also concluded that Dominish's claim of medical
impairments had not been sufficiently established to the extent
necessary to constitute unavoidable circumstances.
Dominish submitted a request for an oral presentation
before the CFEC. The oral appearance was held in November 1982.
Dominish attended and testified.
Following the presentation, Dominish submitted
affidavits taken in November and December, 1982, from two former
Fish and Game officials. The affiants swore that in 1972 there
were procedures for the acceptance of late applications. One of
the former officials indicated that Fish and Game routinely
informed tardy applicants of a late application procedure that
required explanation of the failure to meet the deadline,
submission of additional fees, and an application. In late
December Dominish submitted a memorandum arguing that the State
had unfairly deprived him of his license by not informing him of
late application procedures, and that when combined with medical
difficulties and economic pressures that forced him to fish other
areas, he deserved points for special and/or unavoidable
In July 1991 CFEC denied Dominish's application for the
last time. CFEC concluded that Dominish did not meet the
statutory conditions for point pooling since he had not applied
"for two or more entry permits under AS 16.43.260(d)." AS
16.43.250(d). It also determined that Dominish did not qualify
for AAO points because census statistics for the area in which he
resided did not meet the required standards. CFEC further held
that Dominish's own testimony did not support his contention that
medical problems prevented him from fishing in 1972, as he stated
that he would have participated had he received his gear license,
and that he did actually fish for halibut that year. CFEC agreed
with the hearing officer that the State's failure to accept
Dominish's late application did not constitute an unavoidable or
special circumstance. Finally, CFEC rejected Dominish's request
for special consideration for having participated in fisheries
besides Cook Inlet in 1970 and 1971. CFEC reasoned that these
choices were freely made by Dominish for economic reasons, and
such choices have never qualified as unavoidable or special
In August 1991 Dominish requested reconsideration,
claiming that he should have been granted a hearing on evidence
submitted after July 1, 1978, and that this court's decision in
Jones v. Commercial Fisheries Entry Comm'n, 649 P.2d 247 (Alaska
1982), meant that CFEC could exercise its discretion and award
Dominish income dependence points based on his "overall
circumstances." In September CFEC denied the petition, and
Dominish appealed to the superior court.
The superior court affirmed CFEC's decision, stating
that substantial evidence in the record supported CFEC's findings
that Dominish's medical condition did not prevent him from
fishing in 1972, that his 1972 Cook Inlet application was filed
late, and that no other special or unavoidable circumstances
yielded additional application points. Additionally, the
superior court held that Dominish had specifically requested a
written hearing, was able to make an oral presentation of his
case to CFEC, and able to submit all the evidence he offered.
Therefore, CFEC had not denied Dominish due process of law.
A.Standard of Review
When the superior court acts as an intermediate
appellate court, this court reviews the merits of the underlying
administrative decision, giving no deference to the lower court's
determination. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line
Co., 746 P.2d 896, 903 (Alaska 1987). This court has four
principal standards of review for administrative decisions.
The "substantial evidence" test is used for
questions of fact. The "reasonable basis"
test is used for questions of law involving
agency expertise. The "substitution of
judgment" [,or independent judgment,] test is
used for questions of law where no expertise
is involved. The "reasonable and not
arbitrary" test is used for review of
Handley v. State, Dept. of Revenue, 838 P.2d 1231, 1233 (Alaska
B.Claims Regarding Lack of a Hearing
Dominish's chief complaint is that he did not receive
an adequate hearing. This argument is made in conjunction with
Dominish's claim that he was denied due process of law. This is
a question of law, to which this court applies its independent
Dominish argues that CFEC improperly denied him a
hearing in 1975. At the time of his initial application, CFEC
offered Dominish a hearing. Several weeks later, Dominish, who
apparently then was residing in Ohio, requested "that it . . . be
a written hearing because of the distance involved." Now
Dominish claims that this hearing never occurred.2 Yet a CFEC
hearing officer provided a detailed, four-page recommendation
regarding Dominish's application, a recommendation which was the
result of the written hearing. This document specifically notes
that Dominish "requested and was granted a written administrative
hearing pursuant to" the applicable provision of the AAC. See 20
AAC 05.1805 (1976). Additionally, the document refers to
evidence that Dominish submitted and failed to submit. Dominish
never addresses the implications of this document. Therefore,
Dominish has not demonstrated that he was improperly denied a
hearing at the time CFEC initially informed him that his
application had yielded an insufficient number of points for a
Dominish also argues that CFEC erred in
not holding a second hearing following our
decision in Forquer v. State, Commercial
Fisheries Entry Comm'n, 677 P.2d 1236 (Alaska
1984). While it is true that under Forquer
Dominish was entitled to a second hearing, it
appears that Dominish, through his attorney,
waived that opportunity. On June 27, 1978,
CFEC wrote to Dominish: As we discussed,
there are several ways in which we may now
proceed. Unless there will be submission of
large amounts of new evidence, the Commission
would prefer to proceed without a remand to a
hearing officer. However, if you have a
preference, please let us know what you
Dominish's attorney responded:
I have . . . reviewed our previous
correspondence regarding whether or not we
would desire to have this matter placed back
with a hearing officer or leave it with the
actual Commission. It seems to me in this
particular instance, and due to the
circumstances, the matter can be more
expeditiously handled by the Commission
Since Dominish elected not to have a hearing, he cannot now
complain that a hearing was not provided.
C.Claims Regarding Special and/or Unavoidable
Dominish argues that our decision in Jones v.
Commercial Fisheries Entry Comm'n, 649 P.2d 247 (Alaska 1982),
mandates that CFEC consider Dominish's "overall circumstances,"
and award him additional income dependence points due to "special
circumstances." See 20 AAC 05.630(b)(2). As a supplemental
argument, Dominish also asserts that he had "unavoidable
circumstances" that entitle him to additional past participation
points. 20 AAC 05.630(a)(5).
Specifically, Dominish argues that CFEC erred with
regard to "special" and "unavoidable" circumstances by not
considering as a whole (1) his medical problems and (2) the fact
that his application was one day late. This is a question of law
involving agency expertise; therefore, this court reviews the
contention utilizing the "reasonable basis" test. Rose v.
Commercial Fisheries Entry Comm'n, 647 P.2d 154, 160-61 (Alaska
In Jones, the applicant for a limited entry fishing
permit had supplied evidence in the hope of obtaining points
available "'if special circumstances exist such that an
applicant's income dependence is not realistically reflected by
his income dependence percentage for the years 1971 and 1972.'"
Jones, 649 P.2d at 250 (quoting 20 AAC 05.630(b)(2)). As in
Dominish's case, Jones had not participated in the fishery in
1971 and 1972. He sought to demonstrate extenuating
circumstances that explained this lack of participation, which
had resulted in his receiving no income dependence points. Id.
This court held that CFEC had erred in not considering evidence
offered by Jones in his attempt to explain why he had not
participated in a certain fishery during the relevant time
period, id. at 251, and therein lies the distinction from
CFEC did consider both Dominish's claim that his
medical condition and the late postmark affected his
participation in the fishery. CFEC deemed both inadequate or
unsupported excuses. As CFEC opined, Dominish's own testimony
indicated that his physical condition was not the reason he
failed to fish during the relevant period. Dominish stated that
he would have fished had he received his permit, which he did not
due to his late application. Moreover, Dominish did actually
participate in the halibut fishery that year. Furthermore,
Dominish and CFEC's efforts failed to produce sufficient medical
evidence to document Dominish's health problems. Hence, his
claim that his medical condition is a unique circumstance
justifying additional points is not factually supported, and CFEC
had a reasonable basis for denying it. CFEC also had a
reasonable basis for rejecting Dominish's claim for points as a
result of the late application's return since he had not made
"reasonable efforts" in the application process. The late
postmark is persuasive evidence that he violated the regulation
that set the deadline for applications. 5 AAC 39.120(b)(1)
(1972). After his application was returned due to tardiness,
Dominish made no inquiry on his own regarding late application
procedures, even though he was somewhat familiar with the
application process and had a brother living in Anchorage at the
time. Furthermore, Dominish admitted that he waited until the
deadline to apply--in this case and as a matter of practice--
because he was monitoring fisheries' closings and wanted to apply
to the one that would remain open the longest. These hardly
constitute "unique" circumstances that justify awarding Dominish
additional points because other regulations for the awarding of
points do not adequately address his situation.
This situation is distinguishable from Jones, where
CFEC had not considered the evidence at all. Jones, 649 P.2d at
251. Dominish's claim amounts to a contention that although CFEC
considered these circumstances individually, CFEC must consider
them in the aggregate also. This is not the holding of Jones.
CFEC adequately considered Dominish's claims. Its
denial of Dominish's claim of special and unavoidable
circumstances related points for the late application and his
medical condition was reasonable. The holding of the superior
court on this issue is affirmed.
D.Equal Protection Arguments
Dominish's arguments in the equal protection section of
his briefing are murky. First he discusses the alleged lack of a
hearing and makes conclusory assertions that the point system
CFEC uses is not "rationally" or "substantially" related to the
purpose of the underlying legislation. As already addressed,
there is no basis for Dominish's arguments regarding the lack of
a hearing. See supra part III.B. Dominish's arguments regarding
the relationship of CFEC's regulations to the purpose of the
legislation are extremely broad and vague, leaving this court to
speculate on the way in which they fail to satisfy the purpose of
the legislation. Hence, these latter arguments are waived.
Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991)
(claims addressed only in cursory manner are waived).
In the second half of Dominish's equal protection
argument, he focuses primarily on CFEC's failure to follow its
allegedly normal procedures regarding informing late applicants
of alternate application procedures. Dominish maintains that
CFEC routinely informed late applicants of the ability to have an
application considered after payment of an additional fee for
tardiness, but did not extend the same procedure to Dominish.
However, Dominish never alleged that there was any requirement
that this procedure be followed. Nor did he articulate a basis
for his inclusion within the regulatory criteria that governed
the acceptance of late applications.3 The result is that after
making an allegation that, if developed, might lead to a
legitimate equal protection claim, Dominish stops and never
produces any argument. Once again, he has waived the issue. Id.
E.Point Claims Arising From Participation in Other
Again it is difficult to ascertain what Dominish is
arguing. It appears Dominish is asserting that a hearing before
CFEC should be granted so that he may argue that he did in fact
apply for a Prince William Sound permit via a letter he sent to
CFEC;4 hence, he would be entitled to points via point pooling.
See AS 16.43.250(d).
Dominish first raised the point pooling issue in
December 1979. This was after CFEC had offered him a second
opportunity for a hearing--an invitation Dominish declined, see
supra part III.B.--but while the evaluation of the re-opened
application was ongoing. Dominish had inquired whether the
recent legislation creating the point pooling provision might
yield additional application points for him. AS 16.43.250(d) as
amended by ch. 64 ' 1, SLA 1979. CFEC responded that Dominish
would not be eligible because he had not applied for permits
other than the one for Cook Inlet.
Perhaps Dominish had a viable argument that the new
legislation required a third opportunity for a hearing to provide
Dominish with the opportunity to argue that he had applied for a
permit via a letter.5 However, Dominish is content to adhere to
his position that he was never offered a hearing at all, merely
insisting "that he should have been allowed to pursue a point
pooling claim through a hearing which CFEC never allowed." We
are not persuaded by Dominish's argument. See supra part III.B.
Instead, he needed to explain why the point pooling legislation
demanded that he again be offered an additional hearing.
Therefore, this argument too is waived. Gates, 822 P.2d at 460.
The judgment of the superior court is AFFIRMED.
1 CFEC allocates permits for specific fisheries to
applicants who have the highest point totals among applicants.
CFEC awards points based upon such factors as ownership of
fishing gear and vessels, economic dependence on fishing, and
previous participation in fisheries. AS 16.43.010-16.43.990;
Forquer v. State, Commercial Fisheries Entry Comm'n, 677 P.2d
1236, 1238 (Alaska 1984).
2 Dominish complains about the inadequacy of these
proceedings and the notice of the hearing. However, he does not
raise these arguments until his reply brief. Therefore, they are
waived. Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158
(Alaska 1992) ("According to Alaska Appellate Rule 212(c)(3), a
reply brief may not raise contentions not previously raised in
either the appellant's or appellee's briefs. . . . Thus, this
court need not even consider the issue.").
3 At the time, the AAC provided that for salmon fishing
[t]he late registration, or the transfer of
registered nets to another registration area
shall be permitted by the commissioner only
in the case of serious injury, sickness or
death of the licensee, or loss of vessel by
sinking, destruction or extensive mechanical
5 AAC 39.120(b) (1972). As discussed in part III.C., Dominish
did not establish that his medical condition was the cause for
his late registration.
4 Dominish also mentions that he participated in the
Peninsula-Aleutian drift gill net fishery in 1971. Dominish does
so in stating that he nearly qualified for limited entry permits
in three fisheries--Cook Inlet, Prince William Sound, and the
Peninsula-Aleutian. Dominish seems to assert that under Jones v.
Commercial Fisheries Entry Comm'n, 649 P.2d 247 (Alaska 1982),
CFEC is bound to consider this circumstance in assessing his
claim for income dependence. However, Dominish once again fails
to adequately develop his argument, neglecting to explain how
this constitutes a special circumstance demonstrating the need to
award additional income dependence points. Hence, the argument
is waived. Gates, 822 P.2d at 460.
5 The hearing officer's recommendations on Dominish's re-
opened application do not address the point pooling claim.
Apparently Dominish never pursued the claim with the hearing
officer after receiving the hearing officer's letter indicating
that the point pooling legislation was not applicable since
Dominish had not applied for alternate fisheries. Nevertheless,
CFEC's "Final Commission Decision on Administrative Review"
explicitly rejected Dominish's point pooling claim, holding that
Dominish had not applied to any fishery besides Cook Inlet during
the relevant period. See AS 16.43.250(d).