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Alaska Commercial Fisheries Entry Commision v. Russo (6/5/92), 833 P 2d 7
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA COMMERCIAL FISHERIES )
ENTRY COMMISSION, STATE OF ) Supreme Court No. S-4408
ALASKA, BRUCE TWOMLEY, RICH )
LISTOWSKI, PHIL SMITH, ) Trial Court No.
COMMISSIONERS, ) 3AN-90-2643 Civil
)
Appellants, ) O P I N I O N
)
v. )
)
SALVATORE RUSSO, ) [No. 3849 - June 5, 1992]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Victor D. Carlson,
Judge.
Appearances: John T. Baker, Assistant
Attorney General, Anchorage, Charles E. Cole,
Attorney General, Juneau, for Appellants.
James F. Vollintine, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
MATTHEWS, Justice.
Salvatore Russo, a long-time participant in the Bristol
Bay Red Salmon Fishery, applied for and was denied a Bristol Bay
Drift Gill Net Entry Permit. The Commercial Fisheries Entry
Commission (CFEC) found that Russo was entitled to only thirteen
points under applicable regulations. Seventeen were necessary
for a permit. Russo appealed the CFEC's decision to the superior
court which found that Russo was entitled to receive past
participation points under the unavoidable circumstances clause
of 20 Alaska Administrative Code (AAC) 05.630(5). The court
reasoned that because Russo was a partner of a gear license
holder, it was arbitrary and unjustly discriminatory not to treat
him as a gear license holder. The CFEC appeals this decision.
We reverse.
Russo has fished in Bristol Bay since 1947. Initially
he was a partner with his older brother Anthony in whose name the
annual gear license was issued. In 1962 Anthony retired and sold
his half interest in the Russos' boat to a nephew, Horace.
Horace and Russo were equal partners. Russo held the gear
license in 1962, 1963, and 1964. Horace was the gear license
holder from 1965 through 1972. The partners relied on the
cannery which purchased their fish to file the license renewal
paperwork. The cannery chose to name Horace as the license
holder because it dealt with him in various business matters.
This case involves past participation points under 20
AAC 05.630(a).1 Under this regulation, a crewmember, that is, a
fisherman who is not a gear license holder, can earn only eight
participation points unless he is entitled to unavoidable
circumstance points under part (a)(5). 20 AAC 05.630(a)(4).
Russo argues that he is entitled to sixteen points
under the unavoidable circumstances clause because it was
fortuitous that he was not named as the gear license holder while
his nephew was. The CFEC, on the other hand, argues that the
term "unavoidable circumstances"has been generally applied to
allow licensed applicants to obtain additional past participation
points for years when circumstances beyond their control
prevented them from fishing. It has not been applied to cases
like Russo's where an equal partner who was not a gear license
holder sought additional past participation points. In such
cases, the CFEC contends, business decisions, not random external
forces that would amount to unavoidable circumstances, are
responsible for the non-licensee status of the applicant.
Relying on Commercial Fisheries Entry Commission v.
Templeton, 598 P.2d 77 (Alaska 1979), the trial court held that
the CFEC had too narrowly construed 630(a)(5). Russo should have
been considered for unavoidable circumstances past participation
points and not doing so resulted in "arbitrarily distinguishing
between named gear licensees and their equal partners in the
award of past participation points,"a violation of the equal
protection clause of the Fourteenth Amendment of the United
States Constitution and the equal rights clause of the Alaska
Constitution.
Templeton involved income dependence points under 20
AAC 05.630(b)(2) which provides:
[I]f 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, the commission may award an applicant
up to a maximum of 10 points based on a
special showing of income dependence[.]
Templeton was in partnership with his brother from 1969 to 1974.
During the years 1971 and 1972, his brother was the named
licensee. The CFEC denied Templeton income dependence points
under the special circumstances provision because Templeton
lacked a gear license for those years. On appeal the superior
court reversed. We affirmed the decision of the superior court
on the grounds that it would be unjust discrimination to bar
Templeton from eligibility for income dependence points "solely
on the fortuitous circumstances of which one [of the two
partners] held the gear license in two given years . . . ."
Templeton, 598 P.2d at 81.
In Commercial Fisheries Entry Commission v. Apokedak,
606 P.2d 1255 (Alaska 1980) and 680 P.2d 486 (Alaska 1984), we
declined to extend the unjust discrimination rationale of
Templeton. At issue was the statutory requirement that entry
permit applicants must have fished as gear license holders before
a given qualification date. Apokedak had been an equal partner
in a fishing venture before the qualification date but he had
never held a gear license. In the first Apokedak decision we
held that the requirement that applicants be holders of gear
licenses does not violate the equal protection clause of the
Fourteenth Amendment to the United States Constitution or the
equal protection provisions of Article I, section 1 of the Alaska
Constitution. Apokedak I, 606 P.2d at 1264-68. We remanded the
case for the lower court to consider Apokedak's contention that
he was in fact a holder of a gear license because he was an equal
partner with a gear licensee before the qualification date. The
superior court, finding Apokedak's case to be essentially the
same as that of Templeton, concluded that it would be unfair
discrimination to not treat Apokedak as a gear licensee.
Apokedak II, 680 P.2d at 486, 487 n.2. On appeal we reversed,
holding that only named holders of gear licenses were license
holders within the meaning of the applicable statute and that it
was not unjustly discriminatory to deny entry permits to partners
who were not named licensees. Id. at 488.
We revisited the subject of how far to extend the
Templeton rationale in Sublett v. Commercial Fisheries Entry
Commission, 773 P.2d 952 (Alaska 1989). Sublett sought past
participation points for a year in which he was a partner of a
gear license holder. He claimed unavoidable circumstance points
under 20 AAC 05.630(a)(5). This claim was denied by the CFEC and
no timely appeal was taken. However, Sublett sought to reopen
his case following our decision in Commercial Fisheries Entry
Commission v. Byayuk, 684 P.2d 114 (Alaska 1984), which applied
Templeton retroactively to non-gear licensee partners seeking
income dependence points. The CFEC refused to extend Templeton
to Sublett's claim for past participation points. On appeal, we
agreed with the CFEC and specifically limited Templeton to claims
for income dependence points:
[T]he rationale of Templeton and Byayuk
was, in any case, limited to claims for
economic dependence points by partners of
gear license holders. . . .
. . . We have indirectly approved
of the differential treatment of partners in
this context. Cf. Commercial Fisheries Entry
Comm'n v. Apokedak, 680 P.2d 486, 488 (Alaska
1984) (partner of gear license holder not
entitled to apply for limited entry permit,
classification "gear license holder"does not
include partner of gear license holder).
Sublett, 773 P.2d at 955 (footnote omitted).
Templeton has been limited by Apokedak and Sublett to
cases involving income dependence points. Templeton does not
apply to equal protection claims or to claims for past
participation points and the trial court's decision was therefore
erroneous.
There is a textual difference between the "special
circumstances"clause, 630(b)(2), applicable to income dependence
points and the "unavoidable circumstances"clause, 630(a)(5),
applicable to past participation points. We noted in Rose v.
Commercial Fisheries Entry Commission that "special" implies a
broader set of circumstances than "unavoidable." The history of
the unavoidable circumstances clause indicates that it requires
both uniqueness and unavoidability. Rose, 647 P.2d 154, 162
(Alaska 1982). The CFEC's interpretation of "unavoidable circum
stances,"which results in limiting application of the clause to
cases where fishermen are prevented from fishing by circumstances
beyond their control, is supported by this distinction. While
the cases of non-licensee partners may be relatively unique, thus
justifying a finding of special circumstances, they were not
brought about by uncontrollable external forces, thus justifying
the CFEC's refusal to find unavoidable circumstances.
We conclude, for the reasons set forth above, that no
grounds were presented for reversing the decision of the CFEC,
and that the decision of the superior court must be reversed.
REVERSED and REMANDED.
_______________________________
1 20 AAC 05.630(a) provides:
Past Participation. Up to a maximum of 20 points will be
awarded an applicant for past participation in the fishery
applied for based on the following schedule:
(1) Consistency of
Participation as a Gear
License Holder (required
minimum number of weeks
Year Fished as a fished is shown in (c)(1)
Gear License Holder of this section)
Year Points Points
1972 3 2
1971 3 2
1970 2 1
1969 2 1
(2) one point for each additional year of
actual participation as a gear license holder in
the fishery applied for from 1965 through 1968;
(3) one point for each additional year of
actual participation as a gear license holder in
the fishery applied for from 1960 through 1964,
provided the applicant participated as a gear
license holder in the fishery applied for during
at least one year from 1965 through 1972;
(4) one point for each year of actual
participation as a crewman from 1965 through 1972
in the fishery applied for; points for crewman
participation and points for participation as a
gear license holder may not be claimed in the same
year;
(5) if unavoidable circumstances exist such
that an applicant's past participation in the
fishery is not realistically reflected by points
awarded for past participation for the years 1960
through 1972, the commission may award an
applicant up to a maximum of 16 points upon a
special showing of past participation during the
years 1960 through 1972;
(6) to receive credit for past participation
as a gear license holder, an applicant must have
harvested the resource commercially while
participating as a gear license holder in a given
year.
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