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State v. Dupier (8/1/2003) ap-1892
State v. Dupier (8/1/2003) ap-1892
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals Nos.
A-8270/8271/8272
Appellant, )
Trial Court Nos. 3HO-S02-61 CR,
) 3HO-S01-460 CR,
3HO-S01-145 CR
v. )
)
JOHN DUPIER, )
O P I N I O N
RODMAN E. MILLER, and )
PHILIP J. TWOHY III, )
)
Appellees. )
[No. 1892 August 1, 2003]
)
Appeal from the District Court, Third Judi
cial District, Homer, M. Francis Neville,
Judge.
Appearances: Jon K. Goltz, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. Melvin M. Stephens II, Kodiak,
for Appellee Miller, and Michael Hough,
Homer, for Appellees Dupier and Twohy.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
John Dupier, Rodman E. Miller, and Philip J. Twohy hold
federal permits to fish for halibut and sablefish off the coast
of Alaska. The State charged them with violating state law by
landing their fish in Alaska without first obtaining an interim-
use or landing permit from the Commercial Fisheries Entry
Commission (CFEC).1 The district court dismissed the charges,
and the State appealed. For the reasons set out below, we agree
with the district court.
Summary of our decision
The CFEC was created to regulate participation in
Alaskas commercial fisheries. The primary task of the CFEC is to
evaluate whether the number of fishers in a particular fishery
should be limited to conserve the fishery resource and promote
the health of the fishing industry.
Alaska statutes authorize the CFEC to issue three types
of fishing permits to commercial fishers. The CFEC issues two of
these permits the limited entry permit and the interim-use
permit to regulate fishing in fisheries subject to limited entry
by the CFEC (i.e., all state-regulated fisheries in which the
number of participants is currently limited or could be limited
in the future). Limited entry permits (as their name implies)
allow selected fishers to participate in fisheries in which the
CFEC has limited access. Interim-use permits, on the other hand,
are issued to all qualified fishers who wish to participate in a
fishery the CFEC has not limited. This interim-use permit allows
the CFEC to prevent fishers who do not have the appropriate
commercial fishing gear from operating in fisheries in which
entry has not been limited; it also allows the CFEC to gather
data on those fisheries to determine if entry should be limited
in the future. Thus, as the term interim-use suggests,2 the
legislature created interim-use permits so the CFEC could
regulate fisheries that might later be subject to limited entry.
The third type of permit the landing permit was
created to give the state some control over the activities of
fishers who participate in federally controlled fisheries but
wish to land their catch in Alaska. Unlike the limited entry and
interim-use permits, landing permits, although legislatively
authorized, have never been used. The Department of Fish and
Game has never established eligibility standards for these
permits, nor authorized the CFEC to issue the permits. Thus, the
Department of Fish and Game never took the legislatively required
steps to regulate the landings by fishers who fish in federally
controlled fisheries but want to land their catch in Alaska. To
fill this void in the halibut and sablefish fisheries, the CFEC
began requiring holders of federal permits to fish in those
fisheries to obtain state interim-use permits before landing
their catch in Alaska, even though interim-use permits were
created for a different purpose.3
The appellees in this case are fishers who participated
in the federally controlled halibut and sablefish fisheries and
landed their catch in Alaska. The State alleged that their
conduct was illegal because they did not have an interim-use or
landing permit. District Court Judge M. Francis Neville
dismissed the charges because she found that the CFEC had no
authority to require fishers operating exclusively in federal
waters to obtain interim-use permits. She also held that the
appellees could not be penalized for failing to get landing
permits because the CFEC had never issued such permits. We agree
with Judge Nevilles conclusions and therefore affirm her
decision.
The CFEC is only authorized to issue interim-use
permits to fishers participating in fisheries that are
potentially subject to limited entry by the CFEC. The Alaska
Legislature created the landing permit to regulate the landing of
fish by fishers who participate in federally controlled fisheries
but who wish to land their catch in Alaska. While the CFECs
desire to require such fishers to obtain an interim-use permit in
place of the unobtainable landing permit is understandable, in
doing so the CFEC exceeded its authority.
Discussion
Background
Resolution of this appeal requires some review of the
federal and state laws governing fishing off the coast of Alaska.
The Alaska legislature created the CFEC in 1973 to
regulate entry into the commercial fisheries for all fishery
resources in the state.4 The original impetus for the CFEC was
to limit participation in the salmon fishery; however, the CFEC
was given authority to limit entry in other commercial fisheries
when necessary to achieve sustained yield of the fishery resource
and the economic health of the fishing industry.5 The
legislature directed the CFEC to limit entry in distressed
fisheries6 and fisheries that, while not distressed, had reached
levels of participation that required limitation to achieve the
acts purposes.7 As noted above, for fisheries in which
participation was to be limited immediately, the CFEC was
directed to issue entry permits based on certain criteria.8 For
fisheries in which participation was not immediately limited, the
CFEC was to issue interim-use permits.9 Those permits were
unlimited in number and were to be issued to all applicants who
can establish their present ability to participate actively in
the fishery.10 After January 1, 1974, no person could operate
gear in the commercial taking of fish without a valid entry
permit or a valid interim-use permit issued by the commission.11
The federal government has also acted to regulate
fisheries off the coast of Alaska. In 1976, Congress enacted the
Magnuson Fishery Conservation and Management Act (subsequently
renamed the Magnuson-Stevens Fishery Conservation and Management
Act12) to address over-fishing in areas adjacent to territorial
waters, particularly by foreign fishing boats.13 The act
established a 200-mile fishery conservation zone now called the
exclusive economic zone (EEZ)14 over which the federal
government exercises fishery management authority.15 The halibut
fishery is governed by both the Magnuson-Stevens Act and a
convention between the United States and Canada that is
implemented in the United States by the Northern Pacific Halibut
Act of 1982.16 The Magnuson-Stevens Act applies almost
exclusively to the EEZ.17 The Halibut Act applies to all
convention waters, including waters within and seaward of the
territorial sea or internal waters of the United States.18
Because the Halibut Act governs fishing in Alaskas territorial
waters, the Board of Fisheries has issued a regulation barring
any person from commercially harvesting or possessing halibut in
a manner inconsistent with that act.19
At the time these federal laws went into effect, AS
16.05.680 made it unlawful for any person in Alaska to purchase
fish from a fisher who did not have a state license or permit to
fish.20 (In 1982, the legislature also enacted AS 16.10.265 and
AS 16.10.267, which, respectively, made it unlawful for fish
processors to buy fish from fishers who did not hold a limited
entry or interim-use permit, and for fishers to sell fish without
a limited entry or interim-use permit.) Apparently, there were
few difficulties enforcing these state laws because most holders
of permits to operate in federally managed fisheries also had
state permits.21 However, in 1984 a fisher who had a permit for
the federally regulated high seas salmon troll fishery but no
state permit decided to land his catch in Alaska instead of
Washington.22 When told he could not land his fish in Alaska
without a state permit, he threatened to sue the state, arguing
apparently with the backing of the federal government that
federal law authorized him to land in Alaska.23 To avoid a
lawsuit,24 the legislature enacted AS 16.05.675,25 which requires
a person who has a federal permit to fish in the EEZ but no state
entry or interim-use permit to get a landing permit from the CFEC
before landing fish in the state. The statute gave the
commissioner of Fish and Game discretion to set up eligibility
standards for landing permits and to authorize the CFEC to issue
permits for a particular fishery if the Department found in
writing that doing so would be consistent with state resource
conservation and management goals.26
The history of this legislation reveals two rationales
for why the legislature required the commissioner of Fish and
Game to affirmatively authorize landing permits, instead of
simply authorizing the permits and directing the Department to
issue eligibility standards. First, although the legislation was
initiated to accommodate one fisher with a federal permit who
wished to land his catch in Alaska, the unsettled boundaries of
state and federal authority had broader implications.27 The CFEC
cautioned legislators about enforcement problems that might arise
in other fisheries, particularly the crab fishery, if fishers
with federal permits were allowed to land their catch in
Alaska.28 The legislature was warned that it would be difficult
to prevent crab fishers with federal permits from fishing
illegally in state waters en route to landing their catch in
Alaska if participation in the state crab fishery were limited.29
Sharman Haley, a special assistant with the CFEC, offered the
House Resources Committee an additional reason for making landing
permits contingent on an affirmative act by Fish and Game: so
that a policy decision [could] be made at a later stage in the
negotiations with the Federal government as to whether or not the
State will fold on this issue, and issue these [salmon] trollers
permits, or whether the [CFEC] will contest the Federal
governments right to preempt our landing laws.30 For reasons
that are not explained in the record, the Department of Fish and
Game never issued regulations under AS 16.05.675. Moreover, the
State does not dispute Judge Nevilles finding in this case that
the CFEC has never issued landing permits.
In 1996, the federal government limited entry in the
sablefish and halibut fisheries in the Gulf of Alaska and
portions of the Bering Sea and the Aleutian Island area.31 The
regulations provide that any person (including a corporation or
other entity) that owned or leased a vessel that made fixed gear
landings of halibut or sablefish in regulated waters in 1988,
1989, or 1990 qualified for a federal permit.32 That person was
issued quota shares in proportion to their legal landings of
halibut or sablefish during specified years.33 Each year, that
persons individual fishing quota is calculated by multiplying
that quota share by the annual allowable catch.34 Subject to
some restrictions, the regulations allow quota shares and
individual fishing quotas to be sold, leased, or otherwise
transferred.35
This new federal regulation led to enforcement and
record-keeping problems for the state. When the federal quota
share program went into effect, the state only required one entry
or interim-use permit for each vessel landing fish in Alaska.36
However, under the federal quota share system each vessel could
have numerous holders of fishing quotas each claiming landings of
halibut and sablefish.37 This situation led to discrepancies and
omissions in the landings data received by the state and federal
governments, as well as difficulties in determining who to
prosecute (the holder of the fishing quota or the holder of the
entry or interim-use permit) for possession of undersized fish,
prohibited species, or violations of other state fish and game
laws.38 To resolve this problem, the Department of Fish and Game
contacted the CFEC about issuing a regulation to require each
holder of fishing quotas to have a state permit.39 The result
was 20 AAC 05.110(c),40 which requires each person reporting a
landing of fish under an individual fishing quota to hold a state
entry or interim-use permit.41 In issuing this regulation, the
CFEC primarily relied for authority on AS 16.10.267, which
requires each fisher selling fish in the state to possess a
landing permit, limited entry permit, or interim-use permit.42
Procedural history
This permit scheme led to some confusion when the State
charged the appellees in this case. Initially, all three
appellees were charged with failing to have an interim-use permit
under 20 AAC 05.110(c), and the State seized the proceeds of
their catches. Later, the State conceded that it could not
forfeit fishing proceeds under 20 AAC 05.110(c) because a first
violation of that regulation was only punishable by a fine of no
more than $5,000.43 The State then charged each appellee with an
additional count of failing to have a landing permit under AS
16.05.675. Courts are required to forfeit the fish taken or
retained as a result of a violation of that statute.44
The appellees all filed motions to dismiss. Judge
Neville granted those motions, ruling that the appellees could
not be convicted under AS 16.05.675 because the CFEC had never
issued landing permits and the appellees could not get them.
Judge Neville also found that the appellees could not be
convicted under 20 AAC 05.110(c) because that regulation was
invalid. Judge Neville gave several reasons for this conclusion:
(1) the legislature had intended fishers landing fish caught in
federal waters to get landing permits, not interim-use permits;
(2) 20 AAC 05.110(c) was inconsistent with the legislative
purpose behind interim-use permits, which were intended to
authorize fishers to operate specific gear in specific fisheries
managed by the state; and (3) by requiring fishers harvesting
fish in federal waters to hold permits that had been designed for
fishers operating in state fisheries, the CFEC had created
unintended conflicts with federal law. After dismissing the
charges on these grounds, the district court ordered the State to
return all the seized funds.
Is the CFEC authorized to require holders of
individual fishing quotas for halibut and
sablefish to have interim-use permits to land
fish in Alaska?
The primary question raised by this appeal is whether
the CFEC exceeded its statutory mandate by requiring holders of
federal permits to fish for halibut and sablefish who fished
exclusively in the EEZ to have state interim-use permits to land
that catch in Alaska. An agency can exceed its statutory
authority either by pursuing impermissible objectives or by
employing means outside its powers.45 The State advances two
reasons that the CFEC acted within its authority in promulgating
20 AAC 05.110(c): (1) the CFEC has authority to require interim-
use permits for fishers operating in any fishery in which the
CFEC has not limited entry; and (2) the regulation serves the
CFECs purposes of promoting the health of Alaskas fishery
resources and fishing industry.46
The State supports this argument by reference to AS
16.43.210, which in part provides:
Interim-use permit; qualifications. (a)
Pending the establishment of the maximum
number of entry permits under AS 16.43.240
and the issuance of entry permits under AS
16.43.270, the commission shall issue interim-
use permits under regulations adopted by the
commission for each fishery, not subject to a
moratorium under AS 16.43.225, to all
applicants who can establish their present
ability to participate actively in the
fishery for which they are making
application.
(b) Before the issuance of the maximum
number of entry permits for a given fishery,
the commission may issue an interim-use
permit to an applicant who may later become
eligible for an entry permit under AS
16.43.270.
(c) To the extent that the commissioner
of fish and game authorizes it under AS
16.05.050(a)(10), the [CFEC] may grant an
interim-use permit to a person to engage in
the commercial
taking from a fishery on an experimental basis.
As the legislative history of the limited entry program
and the wording of this statute suggest, the legislature intended
interim-use permits to be the first phase in the limited entry
scheme.47 The States broader reading of AS 16.43.210 that the
CFEC has authority to issue interim-use permits for any fishery
in which it has not limited entry, regardless of who manages that
fishery ignores the legislatures intent in creating interim-use
and landing permits. Alaska Statute 16.43.210 requires the CFEC
to issue interim-use permits to all fishers who can establish
their ability to participate actively in the fishery for which
they are making an application.48 Under the States reading of AS
16.43.210(a), the CFEC would be obliged to issue an interim-use
permit to any qualified applicant to fish in any fishery in the
world. And because those permits authorize fishers to land fish
in Alaska, it follows that the CFEC could not impose any special
requirements on fishers operating in the EEZ when they sought to
land their catch in Alaska. Yet the legislative history of AS
16.05.675, the landing permit statute, indicates that the
legislature gave the Department of Fish and Game discretion to
authorize landing permits so it could prevent fishers operating
in the EEZ from landing their catch in Alaska (or at least
regulate the manner in which those federal permit holders landed
their catch) if doing so would serve state conservation and
management goals.49
The more reasonable interpretation of AS 16.43.210(a)
is that it requires the CFEC to issue interim-use permits to all
qualified applicants to fish in commercial fisheries managed by
the CFEC in which entry has not been limited that is, fisheries
over which the CFEC has authority to limit entry or impose a
moratorium, but has not yet done so. This interpretation is
supported by AS 16.43.210(a), which requires the CFEC to issue
interim-use permits pending the CFECs establishment of a limited
entry program under AS 16.43.240, and by AS 16.43.100(a), which
defines the CFECs powers as regulat[ing] entry into the
commercial fisheries for all fishery resources in the state.50
The State concedes that the CFECs authority over
halibut is limited to Alaska waters,51 but argues that the state
retains some jurisdiction over the halibut fishery, the extent of
which has not been judicially determined. To support this
argument, the State points to Board of Fisheries regulations that
adopt the International Pacific Halibut Commission regulations by
reference,52 limit bycatch in the halibut fishery,53 and require
buyers and sellers of fish in Alaska to record their landings on
Department of Fish and Game fish tickets,54 a practice that aids
the administration of the federal quota share program.55 But
the relevant question here is not the extent of the states
general authority over the halibut fishery, but the extent of the
CFECs authority to require halibut and sablefish fishers landing
fish harvested in the EEZ to hold interim-use permits. The CFEC
was created to establish and administer the states limited entry
program.56 The legislature authorized the CFEC to issue interim-
use permits as a first phase in that program.57 Under the
Halibut Act, all authority to limit entry in the halibut fishery
is held by the International Pacific Halibut Commission and the
Secretary of Commerce.58 The State acknowledged this much in
district court, declaring that the State has never taken the
position that it can regulate the taking of halibut in any manner
that is contrary to the federal law governing the taking of
halibut. Furthermore, under the Magnuson-Stevens Act, the
federal government exercises management authority over all the
fisheries in the EEZ, including the halibut and sablefish
fisheries.59 Because the legislature only intended the CFEC to
issue interim-use permits to applicants to fish in fisheries in
which the CFEC could limit entry, and because the CFEC has no
authority to limit entry in the halibut and sablefish fisheries
in the EEZ, we conclude that the CFEC has no authority to require
fishers in the EEZ to hold state interim-use permits.
The State points to subsections (b) and (c) of AS
16.43.210 which give the CFEC discretion to issue interim-use
permits in two other situations as evidence that the legislature
plainly intended that interim-use permits could be required by
the CFEC in a variety of fisheries to which the CFEC has not
limited entry to a maximum number of participants. But AS
16.43.100, which lists the duties and powers of the CFEC, directs
the CFEC to issue interim-use permits as provided in AS
16.43.210, 16.43.220, and 16.43.225.60 As our supreme court
observed in Kalmakoff v. State,61 AS 16.43.100 does not give the
CFEC broad discretion to issue interim-use permits as it sees
fit; rather, [t]he commissions discretion is ... limited to that
which is outlined in [the] provisions [listed in AS
16.43.100(8)].62 None of those provisions authorize the CFEC to
require persons fishing in federally managed fisheries in the EEZ
to obtain interim-use permits. Although the permit requirement,
by aiding the states data collection and enforcement efforts,
might serve the CFECs purposes of promoting the health of Alaskas
fisheries and fishing industry, that alone cannot justify an
ultra vires regulation; a regulation banning oil tanker traffic
in the EEZ might also serve those purposes, but would exceed the
CFECs authority to establish and administer the states limited
entry program.
The legislature apparently reached this same conclusion
in 1984 when a salmon fisher with a valid federal permit but no
state interim-use or entry permit sought to land his catch in
Alaska. Legislators were informed that fishers operating in
state waters could land their fish in Alaska with interim-use or
entry permits, but that fishers with federal permits were
currently prohibited by state law from landing their catch in
Alaska.63 The legislature therefore did not direct the CFEC to
issue the salmon fisher an interim-use permit; rather, at the
CFECs urging, the legislature passed a bill giving the
commissioner of Fish and Game discretion to authorize the CFEC to
issue landing permits in these circumstances. When the
legislature enacted this legislation, it could not have intended
to make landing permits available to holders of individual
fishing quotas for halibut and sablefish because that federal
program did not yet exist.64 But the legislature gave the
Department of Fish and Game discretion to require landing permits
in the circumstances specified in the statute: when a fisher
with a valid federal permit to harvest fish in the EEZ wants to
land that fish in Alaska but holds no entry or interim-use
permit.
The State argues that the legislature only intended
landing permits to be issued when interim-use and entry permits
were unavailable. But the State cites no convincing legislative
history or statutory language to support this claim. Indeed, the
legislative history provided by the State suggests a contrary
conclusion; the enrolled bill report explains that the landing
permit statute would allow the State to require a landing permit
even though it could not necessarily require a fishing permit.65
If the legislature had intended to limit landing permits to
fishers ineligible for other state permits, it could have said
so. It is equally plausible that the legislature created landing
permits for fishers who do not have interim-use or entry permits
because they operate only in federal waters.
We conclude that 20 AAC 05.110(c) is an invalid
regulation because the CFEC has no authority to require fishers
operating exclusively in federally managed fisheries in the EEZ
to hold interim-use permits. The legislature specifically
authorized the Department of Fish and Game to require fishers
without interim-use or entry permits to get landing permits if
they wished to land fish caught in the EEZ in an Alaska port.
Because the Department of Fish and Game has never issued
eligibility standards for landing permits under AS 16.05.675 or
authorized the CFEC to issue such permits, the appellees could
not be prosecuted for failing to obtain them.
The State asserts that the appellees could still be
prosecuted under AS 16.05.675 for not having interim-use or entry
permits. But AS 16.05.675 does not require fishers to have
interim-use or entry permits; rather, it directs fishers without
interim-use or entry permits to obtain landing permits.66 The
State also asserts that even if the CFEC has no authority to
issue a regulation requiring interim-use permits for halibut and
sablefish landings, it has discretion to issue those permits
under AS 16.43.100(a)(5) and (8).67 The State claims that
because AS 16.10.267 required the appellees to have some type of
permit to sell their fish in Alaska, they were obliged to obtain
the one type of permit available to them the interim-use permit.
But the appellees were not charged with violating AS 16.10.267,
and we will not reverse the district court because the appellees
potentially committed an offense that was never charged. In any
event, for the reasons discussed above, we conclude that the CFEC
only has discretion to issue interim-use permits to fishers
operating in fisheries over which the CFEC has authority to limit
entry.
Because Judge Neville correctly ruled that 20 AAC
05.110(c) is an invalid regulation, and that the appellees could
not be prosecuted for failing to obtain landing permits under AS
16.05.675, we affirm the courts orders granting the motions to
dismiss.
Did the district court err in dismissing the
charge against Twohy for landing sablefish
without a sablefish interim-use permit?
The State argues that the court erred in dismissing the
charge against Twohy for landing sablefish without an interim-use
permit because the state has broader authority over sablefish
fishing than halibut fishing, and because Twohy never sought
dismissal of that charge. We find no merit to these claims. For
the reasons discussed above, we conclude that the CFEC has no
authority to require individual fishing quota holders to obtain
interim-use permits before landing sablefish caught in the EEZ in
Alaska. The State concedes that Twohy caught the sablefish he
landed in the EEZ. Therefore, we express no opinion on the
authority of the CFEC to require interim-use permits for
sablefish harvested in Alaskas territorial waters regulated
concurrently by the state and federal governments.68
Conclusion
The decision of the district court is AFFIRMED.
In the Court of Appeals of the State of Alaska
STATE OF ALASKA, )
) Court of Appeals Nos. A-
8270/8271/8272
Appellant, ) Trial
Court Nos. 3HO-S02-61 CR,
) 3HO-S01-460 CR, 3HO-S01-
145 CR
v. )
)
JOHN DUPIER, )
RODMAN E. MILLER, and ) Order
PHILIP J. TWOHY III, )
) Date of Order:
August 1, 2003
Appellees. )
____________________________)
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges
It is Ordered:
1. The July 15, 2003 letter from Assistant Attorney General,
Jon K. Goltz, was treated by the Court as a petition for
rehearing. The petition for rehearing is GRANTED.
2. Opinion No. 1885, issued on June 27, 2003, is WITHDRAWN and
is SUPERSEDED by Opinion No. 1892, to be issued on August 1,
2003.
Entered at the direction of the Court.
Clerk of the Appellate Courts
Deputy Clerk
Distribution:
COA Judges
Central Staff
Attorneys
Judge Niesje
J. Steinkruger
Trial Court
Appeals Division
West
Publishing Company
Jon K Goltz
Assistant Attorney
General
1031 West Fourth
Avenue #200
Anchorage AK 99501
C Michael Hough
Attorney at Law
3733 Ben Walters
Lane #2
Homer AK 99603
Melvin M Stephens
II
Attorney at Law
P O Box 1129
Kodiak AK 99615
_______________________________
1 20 AAC 05.110(c); AS 16.05.675.
2 Websters New World College Dictionary (4th ed. 2002)
defines interim as the period of time between; meantime.
3 See 20 AAC 05.110(c).
4 AS 16.43.100(a)(1); AS 16.43.020(a).
5 See Governor William A. Egans January 10, 1973,
transmittal letter for legislation to regulate entry in Alaskas
commercial fisheries, at 22 (Senate Resources Committee file on
H.B. 126, 1973-74) (To summarize, this bill provides a means for
regulating entry into Alaskas commercial fisheries. While it has
been designed to have broad applicability, it is directed
initially at limiting entry into the States salmon fisheries
because the need for effective action there is greatest.). The
House Resources Committee initially introduced H.B. 126 to
regulate participation in the salmon fishery. H.B. 126, 8th
Leg., 1st Sess. (1973); 1973 House Journal 504. A committee
substitute was introduced that allowed the CFEC to designate the
specific fishery resources to be subject to limited entry.
C.S.H.B. 126, 8th Leg., 1st Sess. (1973); 1973 House Journal 504.
This enabled the CFEC to extend limited entry to other fisheries
... without additional legislation. 1973 House Journal 504.
That change remained in the final version of the bill. See
Estate of Lewis v. State, 892 P.2d 175, 180 n.10 (Alaska 1995);
see also AS 16.43.010; AS 16.43.100(a)(1).
6 AS 16.43.230; AS 16.43.240(a).
7 AS 16.43.240(b).
8 AS 16.43.250(a).
9 AS 16.43.140(a); AS 16.43.210(a).
10 AS 16.43.210(a).
11 AS 16.43.140(a).
12 62 Fed. Reg. 2047 (January 15, 1997).
13 See State v. F/V Baranof, 677 P.2d 1245, 1248-49
(Alaska 1984). The regulations governing the Gulf of Alaska and
adjoining areas are codified at 50 C.F.R. 679.
14 See Presidential Proclamation No. 5030, 48 Fed. Reg.
10605 (March 14, 1983); see also Pub.L. 102-251, 302(a)(1) & (b)
(1992).
15 See F/V Baranof, 677 P.2d at 1249 (citing 16 U.S.C.
1811, 1812).
16 See 16 U.S.C. 773 et seq.; Convention for the
Preservation of the Halibut Fishery of the Northern Pacific Ocean
and Bering Sea, March 2, 1953, U.S.-Can., 5 U.S.T. 1954 and
Protocol Amending the Convention Between the United States and
Canada for the Preservation of the Halibut Fishery of the
Northern Pacific Ocean and Bering Sea, March 29, 1979, U.S.-Can.,
32 U.S.T. 2483. Congress has regulated the halibut fishery in
some form since 1924. See Martinsen v. Mullaney, 85 F.Supp. 76,
78, 12 Alaska 455, 459 (D.C. Alaska 1949) (citing 43 Stat. 648).
17 See 16 U.S.C. 1811, 1812; United States v. Ertsgaard,
222 F.3d 615, 617 n.4 (9th Cir. 2000).
18 See Ertsgaard, 222 F.3d at 617 & n.4. (citing 16 U.S.C.
773(d) & Protocol Amending the Convention Between the United
States and Canada for the Preservation of the Halibut Fishery of
the Northern Pacific Ocean and Bering Sea, 32 U.S.T. at 2487).
19 See 5 AAC 28.092.
20 See ch. 94, art. III, 10, SLA 1959 (making it unlawful
to purchase fish from a person who has no state license); ch.
105, 11, SLA 1977 (amending that law to make it unlawful to
purchase fish from a person who does not hold a permit under AS
16.43).
21 See letter from Norman C. Gorsuch, Attorney General, to
Governor Bill Sheffield on C.S.H.B. 376 (June 21, 1984); notes
from interview with John Williams of the CFEC (in Senate
Resources Committee file on H.B. 376, 1983-84).
22 See id.
23 See id.
24 See id.; see also Committee Minutes, House Resources
Committee hearing on H.B. 376 (May 23, 1983) (comments by Sharman
Haley, Special Assistant, CFEC) and Senate Resources Committee
hearing on C.S.H.B. 376 (March 27, 1984) (comments by Haley of
the CFEC and Norm Cohen, Special Assistant, Department of Fish
and Game).
25 AS 16.05.675 provides:
Landing permits. (a) A person who does not hold
a limited entry permit or interim-use permit
issued under AS 16.43 may not deliver or land fish
in the state unless the person
(1) holds a valid federal permit to operate
commercial fishing gear in the fishery
conservation zone; and
(2) has been issued a landing permit by the
Commercial Fisheries Entry Commission.
(b) The commissioner may by regulation
establish eligibility requirements for the
issuance of a landing permit.
(c) The commissioner may authorize the
Commercial Fisheries Entry Commission to issue
landing permits for a fishery if the commissioner
has made a written finding that the issuance of
landing permits for that fishery is consistent
with state resource conservation and management
goals.
26 AS 16.05.675(c).
27 See Committee Minutes, House Resources Committee
hearing on H.B. 376 (May 23, 1983) (comments by Haley at CFEC);
letter from Gorsuch, Attorney General, to Governor Sheffield on
C.S.H.B. 376 (June 21, 1984); notes of interview with Williams of
the CFEC (Senate Resources Committee file on H.B. 376).
28 See id.
29 See id.
30 See Committee Minutes, House Resources Committee
hearing on H.B. 376 (May 23, 1983) (comments by Haley at CFEC).
31 See 50 C.F.R. 679.1; see also Alison Rieser,
Prescriptions for the Commons: Environmental Scholarship and the
Fishing Quotas Debate, 23 Harv. Envtl. L. Rev. 393, 412-14
(1999). Authority to regulate these fisheries is found in the
Magnuson-Stevens Act, 16 U.S.C. 1801 et. seq. and the Halibut
Act, 16 U.S.C. 773 et seq. See 50 C.F.R. 679.
32 50 C.F.R. 679.40(a)(3)(i); see generally Foss v.
National Marine Fisheries Serv., 161 F.3d 584, 586-87 (9th Cir.
1998); Ferguson v. Ferguson, 928 P.2d 597, 598 (Alaska 1996)
(both describing the federal quota share program).
33 50 C.F.R. 679.40(a)(4)(i)-(ii).
34 50 C.F.R. 679.40(b)-(c).
35 50 C.F.R. 679.41.
36 See November 6, 1996, memorandum from Phil Rigby,
scientific program manager, Department of Fish and Game, to Earl
Krygier, extended jurisdiction program manager, Department of
Fish and Game (included in CFEC file on 20 AAC 05.110(c)); March
19, 1998, press release on new CFEC requirements for holders of
individual fishing quotas.
37 See id.
38 See id.; see also e-mail correspondence in the CFEC
file on 20 AAC 05.110(c).
39 See April 7, 1997, e-mail from Krygier at the
Department of Fish and Game to Beccy Kalwara and Bruce Twomley at
the CFEC and attached November 6, 1996, memorandum from Rigby to
Krygier referenced in note 34, supra.
40 20 AAC 05.110 provides:
Permit Required to Possess Fish or Shellfish.
(a) It is unlawful for any person to possess,
within water subject to the jurisdiction of the
state, any fish or shellfish, taken for a
commercial purpose, aboard a fishing vessel
commonly used for taking that species of fish or
shellfish unless the person has in his possession
a valid interim-use or entry permit card allowing
him to take the fish or shellfish in his
possession with the gear with which the vessel is
equipped unless waived by the commission for good
cause.
(b) As used in this section, a commercial
purpose includes any sale, purchase, trade, gift,
or any portion of a commercial transaction.
(c) For purposes of this section, a person
reporting a landing of fish under a federal
individual fishing quota (IFQ) possesses fish for
a commercial purpose.
41 See Minutes, November 14, 1997, and December 17, 1997,
meetings of the CFEC.
42 See April 29, 1998, letter from the CFEC to Denise
Branshaw denying her request to reconsider 20 AAC 05.110(c).
43 AS 16.43.970(a).
44 AS 16.05.723.
45 See State v. Hebert, 743 P.2d 392, 394 (Alaska App.
1987).
46 We apply our own judgment to determine if the
regulation is consistent with and reasonably necessary to carry
out the purposes of the statutory provisions conferring
rulemaking authority. See Deubelbeiss v. Commercial Fisheries
Entry Commn, 689 P.2d 487, 492-93 (Alaska 1984).
47 See Simpler v. State, 728 P.2d 227, 229 (Alaska 1986).
48 See AS 16.43.210(a).
49 See Committee Minutes, House Resources Committee
hearing on H.B. 376 (May 23, 1983) (comments by Haley at CFEC);
letter from Gorsuch, Attorney General, to Governor Sheffield on
C.S.H.B. 376 (June 21, 1984); notes of interview with Williams of
the CFEC (Senate Resources Committee file H.B. 376, 1983-84).
50 Emphasis added.
51 See Brief of Appellant at 11 (The CFEC interim-use
permit for halibut applies to all halibut possessed in Alaska
waters ... .) (emphasis added).
52 See 5 AAC 28.092; see also 50 C.F.R. 679.3(b)(1) (The
conservation and management of groundfish in waters of the
territorial sea and internal waters of the State of Alaska are
governed by the Alaska Administrative Code at 5 AAC Chapter 28
and by the Alaska Statutes at Title 16.).
53 5 AAC 28.070.
54 See 5 AAC 39.130(c) (requiring buyers and sellers to
complete fish tickets); AS 16.05.690 (requiring each buyer of
fish to keep a record); AS 16.05.050(a)(5) (authorizing the
Department of Fish and Game to collect data to promote the
purposes of the Title).
55 See 50 C.F.R. 679.5 (incorporating fish ticket
reporting requirements in the federal quota share program); 50
C.F.R. 679.3 (providing that the Alaska Administrative Code (5
AAC 39.130) governs reporting and permitting requirements using
ADF&G Intent to Operate and Fish Tickets.).
56 See AS 16.43.100; AS 16.43.210.
57 See Simpler, 728 P.2d at 229.
58 See 16 U.S.C. 773(c).
59 See F/V Baranof, 677 P.2d at 1249 (citing 16 U.S.C.
1811, 1812).
60 AS 16.43.100(8).
61 697 P.2d 650 (Alaska 1985).
62 Id. at 653. Since Kalmakoff was decided, the
legislature amended AS 16.43.100(8) to add AS 16.43.225 to the
list of statutes governing the CFECs issuance of interim-use
permits. AS 16.43.225 was enacted in 1991, and gives the CFEC
authority to establish a moratorium on new entrants into at-risk
fisheries.
63 See Sectional Analysis for C.S.H.B 376 (House Resources
Committee file, 1983-84); see also notes from interview with
Williams at the CFEC (Senate Resources Committee file on H.B.
376, 1983-84) (observing that [i]n-state fisher[s are] eligible
to land fish by holding an entry permit or interim-use permit.).
64 There is some indication in the legislative history
that the CFEC was concerned with the bills implications for the
groundfish fishery, but the reasons for this concern are not
clear. See notes from interview of Williams at the CFEC (Senate
Resources Committee on H.B. 376, 1983-84).
65 Enrolled Bill Report for C.S.H.B. 376 (emphasis added).
66 AS 16.05.675(a)(2) provides that [a] person who does
not hold a limited entry permit or interim-use permit issued
under AS 16.43 may not deliver or land fish in the state unless
the person ... has been issued a landing permit by the Commercial
Fisheries Entry Commission.
67 AS 16.43.100(a)(5) and (8) provide:
To accomplish the purposes set out in AS
16.43.010, the commission shall ...
(5) designate, when necessary to accomplish the
purposes of this chapter, particular species for
which separate interim-use permits or entry
permits will be issued;
....
(8) issue interim-use permits as provided in AS
16.43.210, 16.43.220, and 16.43.225[.]
68 See State v. Kalve, 9 P.3d 291, 294 (Alaska App. 2000).
