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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Copeland v. State, Commercial Fisheries Entry Commission (09/21/2007) sp-6170
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
| STEVE COPELAND, | ) |
| ) Supreme Court No. S- 12275 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05-06568 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| COMMERCIAL FISHERIES | ) |
| ENTRY COMMISSION, | ) No. 6170 September 21, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Fred Torrisi, Judge.
Appearances: Michael Hough, Homer, for
Appellant. Laura C. Bottger, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Bryner, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
FABE, Chief Justice.
This appeal arises out of the Commercial Fisheries
Entry Commissions (CFECs) denial of a limited entry fishing
permit to Steve Copeland. Copeland applied for and was denied a
limited entry permit in the Prince William Sound Purse Seine
salmon fishery. He appealed the denial to the superior court,
which affirmed CFECs decision to deny the permit.
When the superior court acts as an intermediate court
of appeal, we independently review the merits of the
administrative decision.1 When reviewing an agencys
interpretation of its own regulation, we apply the reasonable
basis standard.2 We defer to the agency unless its
interpretation is plainly erroneous and inconsistent with the
regulation. 3 When reviewing a decision based on factual
findings, we apply the substantial evidence test.4
After a careful review of the parties briefs and
arguments, we concur in the superior courts determination that
CFECs regulatory interpretations were reasonable and that its
factual findings were based on substantial evidence. Because the
courts thoughtful decision on appeal correctly upheld CFECs
determination, we adopt the superior courts decision, attached as
an appendix, in its entirety. Because that decision does not
separately address Copelands claim for past participation points
as distinct from his claim for special circumstances income
dependence points, we briefly address that issue.
CFECs regulations provide for an award of past
participation points based on a showing that unavoidable
circumstances prevented an applicant from participating in the
fishery.5 Copeland contends that CFEC abused its discretion when
it refused to award him past participation points for crewman
participation in 1970. He claims he did not participate in 1970
due to domestic problems and appears to suggest that he should
have been granted unavoidable circumstances points. In its final
decision, CFEC noted that Copeland had offered testimony that he
did not participate in 1970 because of a poor prediction for the
fishery and because he was doing well in another fishery. CFEC
reasoned that Copelands decision not to participate may have been
a sound business decision but concluded that Copeland failed to
establish that circumstances beyond his control prevented
participation.
In Alaska Commercial Fisheries Entry Commission v.
Russo, we noted that the unavoidable circumstances clause
requires both uniqueness and unavoidability.6 Based on these
requirements, we upheld a CFEC interpretation limiting
application of the clause to cases where fishermen are prevented
from fishing by circumstances beyond their control.7 In Younker
v. Alaska Commercial Fisheries Entry Commission, we upheld CFECs
denial of unavoidable circumstances points to an applicant who
did not participate in a gillnet fishery.8 We reasoned that the
applicants circumstances were not unavoidable where he elected to
pass up gillnetting because purse seining was more lucrative.9
The applicants choice may have been sensible, but was not the
only one available to him.10
As in Younker, the record in this case suggests that
Copeland made a sensible but avoidable decision not to
participate in 1970. Copeland testified in 1976 that he did not
participate because it was just a real poor forecast. The
hearing officer asked if there were any other reasons, to which
Copeland responded I did . . . very good gillnetting late on the
flats. . . . and, as a rule when its a good summer season
gillnetting, you can make more money doing that than crewing on a
seine boat[.] Copeland offered additional testimony regarding
1970 during his second hearing, in January 1981. He explained
his lack of participation in 1970 as follows:
Well, for one reason my wife was here and I
was gillnetting summer reds on the flats . .
. and I was doing quite well and my wife was
fishing with me. I didnt live in Cordova at
the time. . . . I would have had to . . .
[send] my wife home [and] . . . . it would
have put a lot of strain on our relationship.
. . . I was doing quite well gillnetting
summer reds on the flats and 1970 was a very
poor seine season.
Based on Copelands testimony in 1976 and 1981, substantial
evidence supports CFECs determination that Copeland was not
prevented from fishing by circumstances beyond his control.
For this reason and those contained in the superior
courts decision on appeal, we AFFIRM the superior courts
decision.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
STEVE COPELAND, )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, COMMERCIAL )
FISHERIES ENTRY COMMISSION, )
)
Appellee. ) Case No. 3AN-05-6568 CI
) CFEC No. 90-127 A
Decision on Appeal1
It used to be that anyone with the gear and an attitude
could drop a net and seek to harvest salmon in Alaska waters.
That changed in 1973, with passage of a law that limited entry to
those who could prove their past participation and economic
dependence upon a specific fishery.2 A point system was
developed3 to implement these criteria, based on ones fishing
history in the years 1960-72. Steve Copeland came up one point
short of the 17 necessary to obtain a Prince William Sound purse
seine permit, and so appeals. He argues primarily that the
Commission erred in its application of the special circumstances
regulation,4 and ignored the mandate of an earlier superior court
decision.
Introduction to limited entry and Mr. Copelands fishing history
There are reasons, not all of them the best, for why this
case took 30 years to reach this point. The point system was
designed to measure the hardship that a gear license holder would
suffer from exclusion from the fishery those fishing as crew do
not need a limited entry permit5 and so was complex by nature,
and particularly so in this case. Points for the then-recent
years of 1971 and 1972 counted more than 1969-70, which in turn
offered more possible points than earlier years.6 But the Prince
William Sound purse seine fishery was mostly closed in 1972, so
the Commission didnt award points to anyone for that year,7 on
the theory that this would be fair, since it impacted all
applicants equally. Mr. Copelands argument, at least in part,
and Judge Madsens 1980 opinion, is that this didnt quite work in
his case, because of the way the Commission interpreted its
regulations. A closer look at his actual fishing history is
necessary to understand this argument; there are several good
statements of this history in the record. (I see no need to
review the procedural history in depth, as it is recited at
several places in the record and set forth in the briefing.)
Mr. Copeland fished in both the purse seine and drift
gillnet fishery with his father in 1963 and 1964, starting around
the time he turned 16. (Applications for each of these fisheries
are distinct; Mr. Copeland first held a gear license for drift
gillnetting in 1965, and he did receive an entry permit into this
fishery.) He also crewed in the purse seine fishery in 1965 and
1966. After the 1966 season, Mr. Copeland and Martin Van
Slageren got together and purchased an old wooden boat, so they
could purse seine together in the years to come, although Mr.
Copeland didnt actually hold a gear license in his own name until
1973. The two fished together in 1967, but not in 1968, when Mr.
Copeland crewed on board another boat. They then fished together
again in 1969, and Mr. Copeland was awarded points for half
ownership of the boat. His partner received the extra point for
holding the gear license, and no points were awarded anyone for
income dependence in that year.
In 1970 Mr. Copeland did not participate in the purse seine
fishery and did not receive any points. The reasons for this are
discussed extensively in the record, and, unfortunately for Mr.
Copeland, this is the year that the Commission chose to award the
points that couldnt be claimed in 1972 because the fishery was
essentially closed in that year. He sold his seine in 1970, and
mostly gillnetted the following year, but he did receive a point
for his 1971 participation as a crewman in the purse seine
fishery. Appellant was also able to up the three points he
received for being half owner of the boat he owned with Mr. Van
Slageren to six, based on his full ownership of another skiff,
and he successfully defended an attack on the four points he had
for the lack of availability of alternative occupations, which
turned on exactly where he called home on December 31, 1972.
Resolution of these issues also contributed to some of the early
delay in this matter, as did turnover among CFEC hearing
officers, the first appeal to superior court, and reconciliation
with the various supreme court decisions that were issued during
this period. As noted earlier, the cumulative effect of all of
this was to leave Mr. Copeland one point shy of the 17 points
ultimately determined to be necessary to qualify for a permanent
entry permit into the PWS purse seine salmon fishery. Interim
use permits are issued to applicants whose cases are still under
review and claiming sufficient points to qualify.
Summary of Mr. Copelands claim for special circumstances points
For the years in question, there is little doubt that a high
percentage of Mr. Copelands income was derived from the Prince
William Sound salmon fishery. But a combination of circumstances
his participation in the gillnet fishery, the intermittent nature
of his partnership, the fact that he didnt purse seine in 1970
and the effective closure of the fishery in 1972 have left him
without any points in this category. This, he asserts, is
unfair; It is not even arguable that [his] income dependence was
realistically reflected8 by his income dependence in 1970 and
1971.9 Accordingly, he reasons, he must be entitled to at least
one point for income dependence, and of course that is all he
needs to obtain a permit.
Mr. Copeland asserts that he is not seeking income
dependence points for 1970 or 1971, nor for any other specific
year or years. He also states that he is not challenging the
denial of points for all applicants in 1972, nor that Rose10 or
Kalmakoff11 were wrongly decided. So while it seems that he
wants to hang his hat entirely on the broad language of
subsection .630(b)(2), I feel it necessary to go through the
cases in a more traditional manner. Before doing so, however, it
makes sense to start with Judge Madsens decision, and Mr.
Copelands contention that the CFEC was estopped from relitigating
the issue of whether he is entitled to income dependence points
under subsection .630(b)(2).12
Did the 1980 court decision mandate granting income dependence points?
Because appellant couched the issue in terms of estoppel,
the Commission responded in kind with dicta of dubious value in
this context.13 But Mr. Copeland presented no authority at all
in his reply brief, saying only that the CFECs argument would
require a conclusion that Judge Madsens decision had no weight or
effect, except to the extent that CFEC at least did conduct a
hearing, even though it then proceeded to ignore everything he
said in his opinion.
But the key word may have been contained in the language Mr.
Copeland quoted in his opening brief the issue must have been
resolved by final judgment on the merits (emphasis added). Judge
Madsen did not retain jurisdiction, and he remanded the matter to
the Commission, which means that the decision was not final and
could not have been appealed.14 Now that it is back in court, it
is somewhat analogous to Wolff v. Arctic Bowl, Inc.,15 where the
supreme court sustained a trial judges authority to reverse
himself after discretionary review of an order granting a new
trial was denied, holding that the earlier decision wasnt final.
The doctrine of the law of the case is
not an inexorable command. It merely expresses the
practice of courts generally to refuse to reopen what
has been decided, not a limit to their powers. Though
the power exists to reopen the points of law already
decided, it is a power which will necessarily be
exercised sparingly, and only in a clear instance of
previous error, to prevent a manifest injustice. The
doctrine of law of the case is normally a salutary one
in the interest of economy of effort and of narrowing
down the issues in successive stages of litigation . .
. .[16]
Judge Madsen could have reversed the Commission and ordered
that a permit be issued, but he didnt do that. The order to hold
a hearing would be meaningless if the outcome was foreordained;
it is important to scrutinize the instructions of the court on
remand.17 Those instructions were that Mr. Copeland should be
given a hearing at which he can make a special showing of income
dependence. And, as the Commission points out, there have been
a host of arguably applicable supreme court decisions in the past
25 years. Under these circumstances, the Commission was not
foreclosed from concluding that Mr. Copeland failed to make a
special showing, and this court should review the decision
independently. This does not, of course, preclude the adoption
of all or a part of Judge Madsens reasoning on the income
dependence issue.
Evolution of the special circumstances doctrine
Although subsection .630(b)(2) has been in place since the
beginning, the Commissions reasoning in those years started and
ended with the idea that you cant limit gear if you start
awarding all sorts of points to people who didnt have gear
licenses. Accordingly, the point system was weighted heavily
with this bias; crew members didnt need permits to crew, so
income dependence points were only awarded to those who held gear
licenses in the most recent years.18 What the CFEC saw in
subsection .630(b)(2) was a way to take care of a gear license
holder who broke a leg in 1972, or otherwise had
uncharacteristically low earnings that season, even though he or
she normally made most of the years earnings in the designated
fishery, as well as other such special circumstances.
But Judge Tom Stewart, upon hearing the plea of Phillip
Templeton, looked at the language more broadly, and with
reference to the purpose of the legislation, which included an
admonition to limit entry without unjust discrimination.19 Mr.
Templeton fished as an equal partner with his brother. While
Phillip Templeton had the gear license in 1970, 1973 and 1974,
his brother had the license in 1969, 1971 and 1972, and so
received all the income dependence points and consequently the
permit.20 Judge Stewart ruled that subsection .630(b)(2)
required that Phillip, too, receive income dependence points,
starting a new view of the regulation, with applicants looking to
the broad statement that it was designed to govern all situations
not specifically covered by the regulations proper,21 and the
Commission trying to limit the case to its facts of a perfectly
equal partnership spanning every year from 1969-74.
In Chocknok v. State, Commercial Fisheries Entry
Commission,22 the Commission sought to narrow the possible
beneficiaries by using a five-part partnership test, but the
Alaska Supreme Court found that this discriminated against
partners who were married to each other, and it again expressed
its disapproval of the arbitrariness inherent in awarding one
business partner a permit because he, rather than the other
partner, happened as a matter of chance to hold the gear license
while the other did not.23 Once again, however, the court was
looking at a partnership (two, actually) which ran right through
the relevant years, including 1971 and 1972.
A third case,24 decided between Templeton and Chocknok, did
involve a fisherman who didnt participate in 1971 or 1972, and
the courts response was a lot like Judge Madsens two years
earlier. Lyle Jones had fished in the Southeast purse seine
fishery for 22 seasons, from 1949-1970, but didnt in 1971-72, and
so was awarded no points for income dependence. The court cited
the broad language contained in Templeton, and remanded to the
Commission, with instructions for it to set forth its reasoning
in the event it concluded that no points should be awarded.
Jones was unusual in that the reason he said he couldnt fish
in 1971 was because his boat had sunk in 1966,25 but there was no
issue relating to the holding of a gear license, as there is
here. In 1985, the court declined to extend the reach of
subsection .630(b)(2) to crew members who were not partners.26
But the brief discussion in Jones was not mentioned in Justice
Rabinowitzs more thoughtful opinion three years later, leaving us
with somewhat of a grey area.
Artemie Kalmakoff fished as a gear license holder from 1960-
66, and as a crewman from 1967-72,27 and his application for
special circumstances points was summarily rejected, while Lyle
Jones, whose boat sank in 1966 and who stopped fishing altogether
in 1970, saw his case remanded for consideration under subsection
.630(b)(2).28 The Kalmakoff court struggled to balance fairness
with the Commissions fundamental mission, acknowledging that its
determination that, other things being equal, those who held gear
licenses in 1971 and 1972 were more likely to suffer hardship by
exclusion than those who didnt, was fundamentally true.29 The
court therefore concluded that the regulations favoring 1971 and
1972 gear license holders are consistent with the statutes
purpose, noting that nothing in Templeton said otherwise.30 As
noted earlier, the court failed to mention the Jones opinion from
three years earlier, and the implication in Jones that a
sufficient reason for not fishing in those years might fit within
the special circumstances regulation no doubt spawned the many
pages contained in this record addressing exactly why Mr.
Copeland didnt in 1970.
Another piece of the puzzle is the decision in Rose v.
Commercial Fisheries Entry Commission,31 decided two months
before Jones. This was also an appeal from Judge Madsen, another
Prince William Sound purse seine case, in which the applicant
crewed from 1969-71, and then bought a boat in preparation to
start operating in his own gear in the ill-fated 1972 season. As
we know, there was no real season that year, and Mr. Rose
encountered the same difficulty as Appellant; income dependence
points were based on 1970-71 rather than 1971-72.32 The Alaska
Supreme Court affirmed Judge Madsens decision sustaining the
CFECs denial of income dependence points because the applicant
didnt have a gear license in 1970 or 1971.33 Justice Rabinowitz
dissented, taking the broad view that Mr. Rose was in fact income
dependent, and that subsection .630(b)(2) should be construed to
grant him the points based on his 1971 income, even though he was
but a crewman in that year.34 (Mr. Copeland fished as a crewman
in 1971, and in any event disavows the argument that Rose was
wrongly decided or that he is entitled to income dependence
points in 1970 or 1971.)
So by 1985 we have the following interpretations of
subsection .630(b)(2):
1. One who fished as an equal partner and is income
dependent cannot be denied points based solely on
the fortuitous circumstances of which one held the
gear license in two given years;35
2. If an applicant wasnt a partner and hadnt fished
as a gear license holder prior to 1973, no income
dependence points are available, even if plans had
been laid to do so in 1972 when the fishery didnt
open;36 but
3. An income dependent applicant, who had long held a
gear license and planned to fish in 1971 and 1972
but didnt, is entitled to have the CFEC evaluate
his claim.37
The question is, where does this leave an applicant,
generally income dependent on fishing, who didnt hold a gear
license prior to 1973, but was a partner in 1967 and 1969,
allegedly planned to fish as a partner in 1970 but didnt, crewed
in 1971 and couldnt accrue any points in 1972 because of the
closure? Is he like Irven Rose, out of luck because of the
combination of his past history and the closure, or Lyle Jones,
where the Commission was required to take a hard look at the
reasons he didnt fish in the year in which income dependence
points were awarded? Mr. Copeland of course argues the latter,
that his are particularized occurrences which affect [him]
uniquely; that he has made the requisite showing of non-
universality.38
Before going on to consider whether Mr. Copeland did make a
showing of unique circumstances that prevented him from purse
seining in 1970 as a partner or gear license holder, one caveat
should perhaps be given. Appellant has stressed his income
numbers in a general way, repeating that he needs only one point
for income dependence to secure a permit, and emphasizing the
broad language of subsection .630(b)(2), that his income is not
realistically reflected by the years 1970 and 1971. While the
opinion in Jones arguably supports Mr. Copelands position in
part, the Commissions point that Jones was remanded only because
it had failed to consider the evidence proffered at all is
correct.39 There is the statute, the regulation and the cases
that interpret these; there is no authority for the notion that a
fisher who gets close, who is generally income dependent, who
almost qualifies, has some sort of aggregate claim.40 Mr.
Copelands attempt to create such an entitlement is plainly
foreclosed by the cases cited. Nor, given the courts explanation
of Jones in Dominish, can it be said that Judge Madsens order
remanding the case to the Commission was solely to determine the
number of points to be awarded.
Were the Commissions findings about 1970 based on substantial evidence?
Remand was ordered in Jones for consideration of the
particular factors that caused [him] not to participate in the
Southeast fishery during 1971 and 1972.41 Under Mr. Copelands
theory, and Judge Madsens decision, this was also required here.
The Commission made findings of fact on this issue, which are to
be sustained if supported by substantial evidence,42 which is
such evidence that a reasonable person might accept as adequate
to support a conclusion.43 A reviewing court is not to reweigh
the evidence or choose between competing inferences, but just to
decide whether a reasonable mind could accept the findings in
light of the entire record.44
Findings were first made by hearing officer Frank Glass, but
Mr. Copeland notes that he supplemented the record with a
critical affidavit from his ex-wife upon administrative review by
the Commissioners. Judge Madsen seemed to assume that family
problems was a sufficient answer to what happened in 1970 the
issue was not directly before him and Mr. Copeland argues that
this is correct. His wife supports that reason, while at the
same time noting that he did not have a seine boat ready to go,
so that he would have had to crew on another boat, and that he
had had a falling out with the skipper with whom he intended to
fish. He gillnetted that year, and had a good season. Mr.
Copeland, however, summarizes her position as you go seining and
we are divorced.
Appellant makes this last observation in the context of his
request for a past participation point for 1970. While one may
question whether this is a sufficient reason should one get
rural domicile points if a spouse insists on living in Los
Angeles? there is more to the income dependence claim than this.
As we have seen, subsection .630(b)(2) also requires
participation as a gear license holder or partner, and so Mr.
Copeland must show that aspect of his claim as well, in the face
of the fact that he had no boat ready to go, crewed the following
year and spent the 1970 season on a drift gillnet boat. As he
says, there is rarely only one answer to a question.
And, indeed, Mr. Copeland answered the question many times.
At the 1976 hearing, he noted that by 1970 Wed pretty well given
up on the boat. We both decided the best thing to do is to sell
the boat for what we could get out of it. We sold the seine that
year and split the money. . . . He went on to explain why he
didnt operate gear in the purse seine fishery the following year
as well. But he also testified that purse seining would have put
a strain on his marriage, and that, coupled with the poor
prediction for the purse seiners, led to his decision; he did
very well gillnetting. It was also apparent that his first boat
was not nearly seaworthy during this period.
The hearing officer discussed this evidence and found the
earliest testimony the most convincing. He concluded that the
choice between purse seining and gillnetting in 1970 turned on an
ordinary biological variable that affected all prospective
participants, and did not amount to an unavoidable circumstance.
The seine had been sold, the boat was in poor repair, and the
hearing officer concluded that Mr. Copeland had not established
that he ever intended to purse seine that year. The
Commissioners came to the same conclusion, quoting both Mr.
Copelands testimony and his wifes affidavit. While Appellant may
argue with the law and the relevance of the findings, they were
adequate to support the conclusion, and therefore constitute
substantial evidence.
Mr. Copeland didnt purse seine at all in 1970, and he didnt
fish as an operator of purse seine gear in 1971. By 1972 he
didnt own a seine, his seine boat was unseaworthy and hed never
used his skiff for seining. So even viewing this case from the
Jones perspective, as opposed to comparing it to Rose, the
special circumstances claim fails for lack of proof, both as to
the reason he didnt purse seine in 1970, and his alleged
intention to do so as a partner or gear license holder.
Does the denial of income dependence points violate the Constitution?
Appellant asserts in his opening brief that the Commissions
decision denying all income dependence points denied him both due
process and equal protection of the law. He correctly states the
framework used in deciding due process claims,45 but he does not
address the risk of erroneous deprivation engendered by the
present procedure, nor say anything at all about the governments
interest in the procedures used.
As mentioned earlier, Mr. Copeland disavowed several of the
more likely arguments, presumably in recognition that they
wouldnt quite carry the day, or had previously been rejected.
But the broad reading of subsection .630(b)(2) that he suggests
is simply too amorphous to apply, and he offers no substitute
procedures that would allow the Commission to seek to identify in
some objective manner a prioritized ranking of applicants.46 I
agree with the CFEC that Appellants argument on this point is so
cursory as to be deemed waived.47
Similarly, his equal protection analysis attempts to do an
end run around the decision in Rose. The Rose court cited
Apokedak I on the futility of seeking a perfect point system; if
such were required, there would be few laws establishing
classifications that would sustain an equal protection
challenge.48 Mr. Copeland simply was not an established gear
license holder in the purse seine fishery; he was a two-time
partner, who decided to gillnet in 1970 and fished a crewman in
1971. He was on the edge of an imperfect classification, a
modified system of grandfather rights,49 and even an application
of the special circumstances regulation failed to push him over
the top. You cant read the Apokedak and Rose decisions without
concluding that Appellants equal protection argument has already
been made and rejected in this context. The gear license
requirement and the point system advance the Limited Entry Acts
legitimate purposes, and the classifications made in it bear a
fair and substantial relation to those purposes.50
Mr. Copeland also cites Deubelbeiss v. Commercial Fisheries
Entry Commission,51 a decision in which a Cook Inlet drift
gillnetter, who was also a point short, successfully challenged
the point scheme for the availability of alternative occupations.
The Commission had used census districts to roughly divide
applicants into groups by population, but Mr. Deubelbeiss argued
that Ninilchik, a small village halfway between Kenai/Soldotna
and Homer, shouldnt be lumped in with these larger communities,
and the supreme court agreed. Justice Rabinowitz dissented,
wondering what better device than census districts might be
postulated,52 and Justice Compton concurred on statutory
grounds.53 To the extent that Mr. Copeland argues that AS
16.43.010, requiring that entry be limited without unjust
discrimination, sounds like equal protection, he has a valid
point, but this does not obviate the fact that his argument has
already been rejected by the court. Again he seeks to recast it
here in a broader form, drawing from the language of the earlier
superior court decision, but I discern no new grounds for relief
on this basis.
Conclusion
Mr. Copeland also makes a claim for past participation
points in 1970. The Alaska Supreme Court long ago held that the
unavoidable circumstances regulation54 is not as broad as the
special circumstances rule,55 which has already been discussed at
length. While one can readily understand why Mr. Copeland chose
to gillnet in 1970, there was simply nothing unavoidable about
the choice,56 and no error by the CFEC in rejecting the claim.
The decision of the Entry Commission is affirmed. The file
will remain in Dillingham through March 31.
Dated: March 6, 2006
/s/ Fred Torrisi
Superior Court Judge
_______________________________
1 Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
2 Simpson v. State, Commercial Fisheries Entry Commn,
101 P.3d 605, 609 (Alaska 2004).
3 Id. (quoting Lauth v. State, 12 P.3d 181, 184 (Alaska
2000)).
4 Jones v. Commercial Fisheries Entry Commn, 649 P.2d
247, 249 n.4 (Alaska 1982).
5 20 Alaska Administrative Code (AAC) 05.630(a)(5)
provides:
[I]f unavoidable circumstances exist such
that an applicants past participation in the
fishery is not realistically reflected by
points awarded for past participation for the
years 1960 1972, the commission may award an
applicant up to a maximum of 16 points upon a
special showing of past participation during
the years 19601972 . . . .
6 833 P.2d 7, 9 (Alaska 1992).
7 Id. at 9-10.
8 598 P.2d 917, 923 (Alaska 1979).
9 Id.
10 Id.
1 This decision has been edited to comply with the
technical rules of the Alaska Supreme Court, and most internal
citations have been omitted.
2 AS 16.43.010 et seq.; see especially .140 and .250.
For history and background of the program, see Isakson v. Rickey,
550 P.2d 359 (Alaska 1976), superseded on other grounds,
Commercial Fisheries Entry Commn v. Apokedak, 606 P.2d 1255, 1261
(Alaska 1980); Rose v. Commercial Fisheries Entry Commn, 647 P.2d
154 (Alaska 1982); and State v. Ostrosky, 667 P.2d 1184 (Alaska
1983).
3 See 20 AAC 05.600 et seq.
4 20 AAC 05.630(b)(2).
5 AS 16.43.140(a) & (b).
6 20 AAC 05.630.
7 20 AAC 05.650(a).
8 20 AAC 05.630(b)(2).
9 He quotes Copeland v. Alaska Commercial Fisheries Entry
Commn, 3AN-79-2207 CI (Alaska Super., August 13, 1980).
10 Rose, 647 P.2d 154.
11 Kalmakoff v. State, Commercial Fisheries Entry Commn,
693 P.2d 844 (Alaska 1985).
12 Copeland cites Chugach Elec. Assn v. Regulatory Commn
of Alaska, 49 P.3d 246, 250-51 (Alaska 2002).
13 The Commission relies on United States v. Vulcanized
Rubber & Plastics Co., 178 F. Supp 723, 726 (E.D. Pa. 1959),
affd, 288 F.2d 257 (3d Cir. 1961), cert. denied, 368 U.S. 821
(1961).
14 Alaska Rule of Appellate Procedure 202(a); City and
Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979),
disavowed on other grounds, State v. Alex, 646 P.2d 203, 208 n.4
(Alaska 1982).
15 560 P.2d 758, 763 (Alaska 1977).
16 Watts v. Seward Sch. Bd., 421 P.2d 586, 618 (Alaska
1966) (Rabinowitz, J., concurring in part and dissenting in part)
(internal citations and quotations omitted), rehg denied, 423
P.2d 678 (Alaska 1967), vacated, 391 U.S. 592 (1968), reinstated,
454 P.2d 732 (Alaska 1969), cert. denied, 397 U.S. 921 (1970).
17 Cf. Johns Heating Service v. Lamb, 129 P.3d 919 (Alaska
2006).
18 See generally Kalmakoff, 693 P.2d at 851-52.
19 AS 16.43.010(a); State, Commercial Fisheries Entry
Commn v. Templeton, 598 P.2d 77, 81 (Alaska 1979).
20 Templeton, 598 P.2d at 79.
21 Id. at 81.
22 696 P.2d 669 (Alaska 1985).
23 Id. at 674.
24 Jones v. Commercial Fisheries Entry Commission, 649
P.2d 247 (Alaska 1982).
25 Id. at 249, 251; see Brandal, 128 P.3d at 737 n.22.
26 Kalmakoff, 693 P.2d at 850-55; see also Brandal, 128
P.3d at 737 n.23.
27 Kalmakoff, 693 P.2d at 846.
28 Jones, 649 P.2d at 251.
29 Kalmakoff, 693 P.2d at 853.
30 Id. at 854.
31 647 P.2d 154 (Alaska 1982).
32 Id. at 157-58.
33 Id. at 163.
34 Id. at 164-65 (Rabinowitz, J., dissenting).
35 Templeton, 598 P.2d at 81.
36 Kalmakoff, 693 P.2d 844; Rose, 647 P.2d 154.
37 Jones, 649 P.2d 247.
38 Rose, 647 P.2d at 161.
39 See Dominish v. State, Commercial Fisheries Entry
Commn, 907 P.2d 487, 493-94 (Alaska 1995).
40 Id.
41 Jones, 649 P.2d at 251; see also Dominish, 907 P.2d at
493.
42 Leuthe v. State, Commercial Fisheries Entry Commn, 20
P.3d 547, 550 (Alaska 2001) (citing Jones, 649 P.2d at 249 n.4).
43 Crivello v. State, Commercial Fisheries Entry Commn, 59
P.3d 741, 745 (Alaska 2002) (citing Commercial Fisheries Entry
Commn v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991)); Yahara v.
Construction & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993);
Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978).
44 Doyon Universal Servs. v. Allen, 999 P.2d 764, 771
(Alaska 2000).
45 See Brandal, 128 P.3d 732, 738 (Alaska 2006) (citing
Mathews v. Eldridge, 424 U.S. 319 (1976)).
46 Rose, 647 P.2d at 159.
47 Dominish (citing Gates v. City of Tenakee Springs, 822
P.2d 455, 460 (Alaska 1991)).
48 Rose, 647 P.2d at 160 (citing Apokedak, 606 P.2d 1255,
1267 (Alaska 1980)).
49 Apokedak, 606 P.2d at 1267.
50 Id. at 1268.
51 689 P.2d 487 (Alaska 1984).
52 Id. at 490-91.
53 Id. at 491-94.
54 20 AAC 05.630(a)(5).
55 Rose, 647 P.2d at 160-62.
56 See Commercial Fisheries Entry Commn v. Russo, 833
P.2d 7 (Alaska 1992).
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