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Lewis v. Commercial Fisheries Entry Comm. (3/31/95), 892 P 2d 175
<![CDATA[
Notice: This opinion 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,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
Estate of LAWRENCE LEWIS, )
) Supreme Court No. S-5532
Appellant, )
) Superior Court No.
) 3AN-88-207 Civil
v. )
) O P I N I O N
STATE OF ALASKA, COMMERCIAL )
FISHERIES ENTRY COMMISSION, ) [No. 4185 - March 31, 1995]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Peter A. Michalski, Judge.
Appearances: C. Michael Hough, Homer,
for Appellant. T. Henry Wilson, Assistant
Attorney General, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
MOORE, Chief Justice.
I. INTRODUCTION
The estate of Lawrence Lewis1 ("Lewis") appeals the
denial of his application for limited entry permits for the Cook
Inlet and Prince William Sound herring sac roe purse seine
fisheries by the Commercial Fisheries Entry Commission (the
"CFEC"). After the CFEC denied his application, a CFEC hearing
officer conducted an administrative hearing and affirmed the
denial. The hearing officer found that Lewis had failed to
establish that he was entitled to sufficient past participation
and economic dependence points to qualify for either a Cook Inlet
or Prince William Sound permit. In addition, the hearing officer
ruled that Lewis was by statute ineligible to apply for a Prince
William Sound permit because he had not legally harvested herring
commercially in the specified years. Both the CFEC and the
superior court affirmed all aspects of the hearing officer's
decision. We affirm the hearing officer's ruling that Lewis was
ineligible to apply for a Prince William Sound permit, but
reverse his determination that Lewis had failed to establish
sufficient points to qualify for a Cook Inlet permit.2
II. FACTS AND PROCEEDINGS
A. The Limited Entry Act
In 1973, the Alaska Legislature enacted the Limited
Entry Act, AS 16.43.010 et seq. (the "Act"). The Act is a set of
statutory provisions designed "to promote the conservation and
sustained yield management of Alaska's fishery resources and the
economic health and stability of commercial fishing in Alaska by
regulating and controlling entry into the commercial fisheries in
the public interest and without unjust discrimination." AS
16.43.010(a). To this end, the Act renders it illegal for
anyone to operate gear in the commercial taking of fish after
January 1, 1974, without either a valid limited entry permit or a
valid interim-use permit. AS 16.43.140(a).
The legislature delegated implementation of the Act to
the CFEC, AS 16.43.100, and directed the CFEC to identify which
fisheries required controlled entry. AS 16.43.240. Once the
CFEC limits entry into a fishery, it classifies the fishery as
"distressed" or "non-distressed,"AS 16.43.230, establishes the
maximum number of limited entry permits which may be issued, AS
16.43.240, and creates a regulatory system to rank permit
applicants according to the degree of hardship they would suffer
by exclusion from the fishery.3 AS 16.43.250. There is no
limitation on the number of interim-use permits which may be
issued for a non-limited entry fishery. AS 16.43.200-.220.
B. The Prince William Sound and Cook Inlet Herring
Purse Seine Fisheries
In 1977, the CFEC designated the Prince William Sound
and Cook Inlet herring purse seine fisheries as "non-distressed"
limited entry fisheries, 20 AAC 05.310(a)(3)-(4), 05.320(b)(2) &
(c)(1), and established a point ranking system specific to these
fisheries, 20 AAC 05.662-.666. In enacting this point system,
the CFEC recognized that "[d]ue to the unusual nature of the
herring purse seine fisheries . . . the award of any points to an
applicant for consistency of participation could not be done with
any degree of equity." Findings of the Commercial Fisheries
Entry Commission Regarding the Priority Classification System
Proposed for the Prince William Sound, Cook Inlet, and
Southeastern Herring Purse Seine Fishery, dated February 17, 1977
(hereinafter referred to as February 1977 CFEC Findings). It
noted that these fisheries are unusual because they "may or may
not open to participation depending on the presence or absence of
certain amounts of herring being simultaneously present and
measurable by the Alaska Department of Fish and Game management
personnel." Id. The CFEC further noted:
In these fisheries an opening may be
measured in hours or minutes, and it is
therefore not uncommon for an operator to be
unable to set his net before the period
closes. For these reasons consistency of
participation does not truly reflect the
historical participation of herring purse
seine fishermen in these fisheries.
Id.
Because of the unusual nature of these fisheries, the
regulations define "past participation" as either (1) the
commercial taking of the herring resource in the designated
fishery with a herring purse seine, interim-use permit and
appropriate licenses, or (2) "being on the fishing grounds [in
the designated areas], with the appropriate vessel, gear,
licenses, and interim-use permit with the intention of taking the
herring resource during the time season was open and the herring
resource was harvested." 20 AAC 05.664(a)(3).4 For Prince
William Sound, the point system allows up to four points for past
participation from 1974 through 1976, while the Cook Inlet system
allows up to five points for those years. 20 AAC 05.664(a)(1).
With respect to the point system for economic
dependence, the CFEC found that
the income dependence standard does not
lend itself as a valid measure of the
economic dependence of a fisherman on these
fisheries. Few, if any, fishermen actually
depend on the herring sac roe fisheries as a
reliable source of income. It is not any
fisherman's primary fishery but rather a
fishery of short duration prior to the salmon
purse seine seasons in which he utilizes his
salmon vessel and crew with only a special
net required. The returns from these
fisheries are usually of a "feast or famine"
character because of the peculiar nature of
the fishery . . . .
February 1977 CFEC Findings. For both Prince William Sound and
Cook Inlet, a maximum of four points may be awarded to an
applicant for economic dependency on the fishery. 20 AAC
05.664(b). One point may be awarded for ownership of a purse
seine vessel as of the December 31, 1976 qualification date, two
points may be awarded for ownership of a herring purse seine as
of the qualification date, and one point may be awarded depending
on the availability of alternative occupations in the location of
the applicant's domicile as of the qualification date. Id.
Adding the available participation points and economic
dependence points together, an applicant can receive a maximum of
eight points for the Prince William Sound fishery and nine points
for the Cook Inlet fishery. A total of six points is required to
obtain a permit for either fishery. 20 AAC 05.666(1).
C. Lewis' Application
Lewis filed an application for Prince William Sound and
Cook Inlet herring purse seine entry permits in March 1977. For
the Cook Inlet permit, Lewis claimed two points for participation
in 1976, one point for participation in 1975,5 one point for
participation in 1974, one point for availability of alternative
occupations, one point for investment in a vessel, and two points
for investment in a herring purse seine net, for a total of eight
points. For the Prince William Sound permit, Lewis claimed two
points for participation in 1976, one point for participation in
1975, one point for participation in 1974, one point for
availability of alternative occupations, one point for investment
in a vessel, and two points for investment in a herring purse
seine net, for a total of eight points.
In December 1977 the CFEC notified Lewis that it had
verified four of the eight points claimed toward the Cook Inlet
permit.6 The CFEC also notified Lewis that he had been found
ineligible to apply for the Prince William Sound permit under AS
16.43.260(a) because he had not "actively harvested the fishery
resource commercially while participating as a gear license
holder between January 1, 1960 and January 1, 1977."7
D. Administrative Review
Lewis requested an administrative hearing to contest
the CFEC's denial of his permit applications. He appeared
without counsel for a first administrative hearing held in
December 1978 in Seattle, Washington before hearing officer David
Ingram. Lewis appeared with counsel for a supplemental hearing
in October 1985 in Juneau, also before hearing officer Ingram.
Following the receipt of additional documentary evidence, the
record closed in April 1986.
After considering all of the evidence, the hearing
officer issued a decision in October 1986. He found that Lewis
had not met his burden of proving entitlement to any of the
points that had not been verified, and he denied all of Lewis'
appealed point claims. In doing so, he found that Lewis lacked
credibility:
Mr. Lewis has attempted to portray
himself as being merely confused as to the
facts of this case due to a heart attack;
however, his credibility is found lacking due
to his demeanor at hearing, inconsistencies
in his testimony, his failure to produce
corroborating evidence that he said he'd
produce or was requested to furnish, and
especially, his denials of illegal purse
seining in 1975 in the face of overwhelming
evidence to the contrary. As a result, his
testimony is not to be believed, and the
various affidavits and letters from others
that attempt to corroborate that testimony
are insufficient as they are suspect also and
are of little weight since the demeanor of
the affiants and others was not observed and
their assertions were not tested by cross-
examination. The remaining documentary
evidence is suspect or at least inconclusive
as to the issues on which it was offered.
Accordingly, there is no credible evidence of
record to prove by a preponderance of the
evidence that Mr. Lewis should be found
eligible to apply or be awarded any of the
points claimed.
The hearing officer also determined as a matter of law
that Lewis was not eligible to apply for the Prince William Sound
permit because Lewis had not harvested herring commercially as
required under AS 16.43.260(a). He first ruled that Lewis'
claimed 1975 commercial harvest would not render him eligible to
apply for a Prince William Sound permit because Lewis had been
fishing illegally without an interim-use permit in 1975. The
hearing officer then rejected Lewis' claim that his participation
in the fishery in 1974 and 1976 satisfied the statutory harvest
requirement. The hearing officer also found that, even if Lewis
had been eligible to apply, he had not proven entitlement to
sufficient points to obtain a Prince William Sound permit.
After receiving the hearing officer's decision, Lewis
filed what was deemed to be a petition for administrative review.
That petition was denied by the CFEC, as was his subsequent
petition for reconsideration. Lewis appealed the CFEC's decision
to the superior court, which affirmed the CFEC's decision in all
respects.
III. DISCUSSION
A. Prince William Sound Permit
When Lewis applied for a Prince William Sound permit in
1977, AS 16.43.260(a) provided:8
Application for Initial Issue of Entry
Permits. (a) The commission shall accept
applications for entry permits only from
applicants who have harvested fishery
resources commercially while participating in
the fishery as holders of gear licenses
issued under AS 16.05.536-16.05.670 before
the qualification date established in (d) or
(e) of this subsection. The commission may
specify by regulation the calendar years of
participation that will be considered for
eligibility purposes.
(Emphasis added.) Lewis challenges the hearing officer's
eligibility ruling on two separate grounds: (1) he argues that
the hearing officer misinterpreted the "harvest"requirement in
AS 16.43.260(a); and (2) he asserts that the hearing officer's
finding that he did not have an interim-use permit in 1975 was
not supported by substantial evidence.9
1. Interpretation of the "Harvest"Requirement
The hearing officer construed the term "harvest" in
light of other CFEC decisions involving the salmon fisheries,
where harvesting of the resources is defined as "the bringing of
the resource under physical control such that it could be
commercially disposed of." See Application of Andrew Gjerde,
CFEC 75-047 (December 10, 1975). The hearing officer thus
reasoned that neither mere presence on the fishing grounds with
the intent to catch herring, nor merely netting herring and then
letting them go would constitute "harvesting," since the
requisite degree of physical control would be lacking.
Lewis argues that the unique nature of the herring
fishery requires a different interpretation of the "harvest"
requirement from that used in limiting the salmon fisheries.
Lewis notes that, due to the uncertainty of actually catching and
selling herring despite the necessary preparation and intent,
"past participation" under 20 AAC 05.664(a)(3)(B) need not
involve the actual commercial taking of the herring resource. He
argues that, since an applicant could receive points for past
participation even in the absence of an actual landing of
herring, an actual landing should not be a prerequisite to
applying for a permit. We disagree.
This court will not modify or extend a statute where
the statute's language is clear and the legislative history
reveals no ambiguity. Alaska Pub. Employees Ass'n v. City of
Fairbanks, 753 P.2d 725, 727 (Alaska 1988). On its face, AS
16.43.260(a) requires an applicant to satisfy two independent
conditions to be eligible to apply for an entry permit. The
applicant (1) must have "harvested fishery resources
commercially,"and (2) must have done so while "participating in
the fishery" with the appropriate gear licenses. An applicant
who fails to satisfy either condition is not eligible to apply
for a permit. AS 16.43.260(a). The legislative history
indicates that the legislature intended these requirements to
apply to all limited entry fisheries.10
Although it may be true that the sac roe herring purse
seine fishery is unique due to the uncertainty of catching and
selling herring in a given season, Lewis' proposed interpretation
of the statute effectively equates "harvested . . . commercially"
with "participating in the fishery." Such a reading violates the
common meaning of these terms11 and renders superfluous the
"harvested" eligibility condition in AS 16.43.260(a). "We
recognize a presumption that the legislature intended every word,
sentence, or provision of a statute to have some purpose, force,
and effect, and that no words or provisions are superfluous."
Rydwell v. Anchorage Sch. Dist., 864 P.2d 526, 530-31 (Alaska
1993) (citing Alaska Transp. Comm'n v. AIRPAC, Inc., 685 P.2d
1248, 1253 (Alaska 1984)); see also Homer Elec. Ass'n v. Towsley,
841 P.2d 1042, 1045 (Alaska 1992) ("As a general rule, a 'statute
should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous,
void or insignificant.'") (quoting Alascom, Inc. v. North Slope
Borough, Bd. of Equalization, 659 P.2d 1175, 1178 n.5 (Alaska
1983) and 2A C. Sands, Statutes & Statutory Construction Sec.
46.06 (4th ed. 1973)).
We also believe that the CFEC's interpretation of the
"harvest" requirement -- obtaining physical control for the
purposes of commercial disposition -- comports with the goals
underlying the Limited Entry Act. The legislature developed the
point system, in part, to assure that those who would suffer
hardship by limited entry would not be excluded from the fishery.
See AS 16.43.010; Commercial Fisheries Entry Comm'n v. Apokedak,
606 P.2d 1255, 1261 (Alaska 1989) ("[O]ne of the primary purposes
of the Act is to avoid unjust discrimination by ranking
applicants for the limited number of permits 'according to the
degree of hardship which they would suffer by exclusion from the
fishery.'"). The CFEC's interpretation of the "harvest"
requirement serves to rank applicants according to the hardship
they would suffer by exclusion from the fishery. Although an
applicant's failure to harvest fish successfully in any given
year may not indicate a lack of economic dependence, see February
1977 CFEC Findings, an applicant's consistent failure to harvest
fish successfully over a period of years does show a lack of
dependence. In such circumstances, exclusion from the fishery
would not cause economic hardship.
Finally we note that it is proper to defer to the
agency's interpretation under these circumstances. The statutory
scheme and the agency's delegated duties encompass the
application of the permit system to a wide variety of fisheries.
See AS 16.43.100 (providing that the CFEC shall designate
particular species for which entry permits will be issued and
establish qualifications for the issuance of entry permits). The
agency was well aware of the difficulty of harvesting
commercially in the herring purse seine fishery and nonetheless
declined to interpret the eligibility statute by referring to the
points regulation or by using it as a model. Under these
circumstances, the interpretation of "harvested"and distinctions
between "harvested" and "participating"in the herring purse
seine fishery are matters of agency expertise to which we should
apply the "reasonable basis" standard of review. Rose v.
Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982). It is
especially appropriate here where the agency promulgated 20 AAC
05.644(a) to ameliorate the potentially harsh results which might
flow from the difficulty of successfully harvesting fish in that
fishery. The agency chose to allow accumulation of points over a
spread of years notwithstanding a lack of success in any given
year. That scheme is consistent with a legislative eligibility
scheme that requires successful participation, i.e. a commercial
harvest, in at least one of the years for which points are
sought.
2. Lewis' 1975 Harvest
Lewis contends that he made a number of landings in the
Prince William Sound herring fishery in 1975. However, the
hearing officer ruled that any "harvest"in 1975 would not render
Lewis eligible to apply for a permit because Lewis had been
illegally fishing without an interim-use permit in that year. On
appeal, Lewis asserts that there is insufficient evidence
supporting the hearing officer's finding that he did not hold an
interim-use permit in 1975.
We review the CFEC's factual findings under the
"substantial evidence" test. Kalmakoff v. State, Commercial
Fisheries Entry Comm'n, 693 P.2d 844, 848 n.7 (Alaska 1985);
Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska 1975); AS
44.62.570(c). Substantial evidence is "such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion." Commercial Fisheries Entry Comm'n v. Baxter, 806
P.2d 1373, 1374 (Alaska 1991) (quotation omitted). In applying
the substantial evidence test, we do not reweigh the evidence or
choose between competing inferences, but only determine whether
such evidence exists. Interior Paint Co. v. Rogers, 522 P.2d
164, 170 (Alaska 1974). If the evidence is conflicting, we will
view it in favor of the agency's findings even if we might have
taken a different view of the facts. Alaska State Comm'n for
Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980).
Lewis offered conflicting testimony regarding the
question of the 1975 interim-use permit card. First, at the 1978
hearing Lewis testified that he had all of his interim-use permit
cards at home, and implied that he would produce the 1975 card.
However, Lewis failed to produce the 1975 permit card, and then
testified in the 1985 hearing that he does not keep the cards
after the season is over.
Lewis was unable to produce any cancelled check, check
register, or other documents demonstrating that he purchased an
interim-use permit in 1975. Similarly, he was unable to produce
any settlement sheets or other documents showing that a processor
purchased an interim-use permit in 1975 on Lewis' behalf. The
Commission records contained no record of Lewis having purchased
the interim-use permit for the herring purse seine fisheries in
1975.
Lewis then testified at the 1985 hearing that he was
"almost positive"that it was 1975 when he flew to Juneau to get
the interim-use permit because he "sent it in and it was lost so
[he] made a special trip." Lewis did not explain whether it was
the application or the permit itself that was supposedly lost in
the mail, nor did he explain how he came to understand that
something was lost. Lewis did not offer any evidence such as
airline tickets or expense records to verify the trip to Juneau.
More importantly, he did not explain why, if he did make this
special trip to Juneau, there was no record of an interim-use
permit being issued.
Lewis also failed to explain why, in 1976, he submitted
a pre-printed application to renew his interim-use permit for the
statewide spawn-on-kelp fishery, but submitted a typed
application for an interim-use permit for the statewide herring
purse seine fishery. The pre-printed application forms for 1976
were automatically sent to individuals who held interim-use
permits for 1975. Therefore, if Lewis had held an interim-use
permit in 1975 for the herring purse seine fishery, he presumably
would have submitted a pre-printed application, as he did for the
herring spawn-on-kelp fishery, rather than a typed application.
Nor did Lewis explain why three different purchasers of his
herring failed to enter the permit number on the fish tickets
which they gave him if Lewis really did have an interim-use
permit and handed the correct card to the tendermen. After
reviewing the various circumstantial evidence, we find that there
was substantial evidence to support the hearing officer's finding
that Lewis did not have the required interim-use permit when he
commercially harvested herring in Prince William Sound in 1975.
Therefore we conclude that the hearing officer properly
ruled that Lewis was not eligible to apply for a Prince William
Sound permit under AS 16.43.260(a).
B. Cook Inlet Permit
The CFEC verified four of the eight points Lewis
claimed in his Cook Inlet permit application. Lewis contends
that the hearing officer erred in finding that he had failed to
establish that he was entitled to the following additional
points: (1) two points for his investment in a herring purse
seine net; (2) one point for his participation in the fishery in
1974; and (3) two points for his participation in 1975.
In limited entry proceedings, the applicant bears the
burden of establishing qualification for all claimed points. 20
AAC 05.520(a). The hearing officer has no affirmative duty to
develop the evidence. Kalmakoff v. State, Commercial Fisheries
Entry Comm'n, 693 P.2d 844, 847 (Alaska 1985). A determination
that an applicant has not established his qualification for
points may be based on circumstantial evidence which tends to
impeach the credibility of the applicant's testimony. Baxter,
806 P.2d at 1374-75. We review the CFEC's factual findings
under the "substantial evidence"test. Kalmakoff at 848 n.7; see
also Baxter at 1374 (substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion").
1. Ownership of a Herring Purse Seine Net
Lewis claimed two points for ownership of a purse seine
net in his Cook Inlet permit application. However, Lewis did not
submit any documentation to support this claim. He later
submitted an affidavit dated April 5, 1982, with an attached
letter from Kenneth J. Quinn of Redden Net Company, stating that
Lewis had purchased a herring purse seine from Redden in 1976.
In the affidavit Lewis stated the purchase price was $6,000, that
he accepted delivery of the net in March 1976, that he paid
$3,000 to Quinn in April of 1976, and that the balance was paid
in 1977.
The hearing officer was skeptical of Lewis' claimed
ownership of the net because of discrepancies between Lewis'
testimony and the documents submitted. For example, the invoice
from Redden Net Company shows that the net was sold to Kenneth
Quinn, not Lawrence Lewis. When questioned about this
discrepancy, Lewis testified that Quinn is a speculator who had
purchased the net in his own name and resold it to Lewis for a
profit. The invoice also shows a net price of $4,979.39
($5,369.39 less a credit of $390), less than the $6,000 Lewis
claimed to have paid for the net. The hearing officer asked for
copies of the two cancelled checks by which Lewis paid the $6,000
purchase price. Lewis only produced a copy of one check dated
June 2, 1976, for $3,000, made payable to Ken Quinn. However, he
also produced copies of two more cancelled checks, for $130.00
each, with the notation "seine hanging"on them.
To qualify for the investment points, Lewis was
required to prove ownership as of December 31, 1976. 20 AAC
05.664(b)(1)(B). The hearing officer asked Lewis when title to
the net actually passed to him, and Lewis replied: "Well it'd be
'77." Lewis' attorney immediately objected to the question on
the grounds that it called for a legal conclusion. Lewis changed
his answer and said that the net belonged to him in 1976. The
hearing officer then asked if the net would have been depreciated
on Lewis' income tax return for 1976. Lewis responded: "Oh,
absolutely. I am sure it's on there." Lewis' attorney requested
that the record remain open for at least 30 days so Lewis could
produce copies of his 1976 and 1977 income tax returns to confirm
whether the net was listed as a depreciable asset. Although the
record remained open for over five months, Lewis never produced
the tax returns.
The hearing officer held that, due to the
inconsistencies between Lewis' testimony and the documentation
submitted, as well as Lewis' failure to produce the tax returns,
Lewis' claim should be denied. This conclusion of law lacks
findings supported by substantial evidence. While Lewis was not
able to provide either the second check to Ken Quinn or his 1976
tax records, we hold that the information which he did provide
was sufficient to prove that he owned the herring seine when he
accepted delivery of the net in March 1976. See AS 45.02.401
(providing that, unless otherwise agreed, title to personal
property passes to the buyer at the time and place at which the
seller completes performance and delivers the goods). Therefore,
we hold that Lewis was entitled to two additional points for
ownership of a herring purse seine.
Because these additional points bring Lewis' Cook Inlet
point total to six points, the minimum number required for a
permit under 20 AAC 05.666, we hold that Lewis is entitled to a
Cook Inlet limited entry permit.12
IV. CONCLUSION
We hold that the CFEC properly ruled that Lewis was not
eligible to apply for a herring purse seine permit in the Prince
William Sound herring fishery under AS 16.43.260(a). We thus
AFFIRM the CFEC's decision concerning the Prince William Sound
permit. However, we REVERSE the CFEC's decision concerning the
Cook Inlet permit. Lewis was entitled to two additional points
for his investment in a herring purse seine net, bringing his
total Cook Inlet point count to six, the minimum number of points
required to obtain a permit. We therefore REMAND this issue to
the superior court for REMAND to the CFEC with directions to
issue a Cook Inlet herring purse seine permit to Lewis' estate.
AFFIRMED, in part, REVERSED, in part, and REMANDED.
_______________________________
1 Lewis died during the course of this appeal which his
estate is now pursuing.
2 The CFEC's final action was its affirmance of the
hearing officer's decision. It is this action which is currently
on appeal. However, since the CFEC simply declined to modify or
reverse the hearing officer's decision, we will examine the
hearing officer's decision as the basis for the CFEC's denial of
Lewis' application.
3 The CFEC has adopted point systems for this purpose
which measure hardship by weighing two main factors: (1) the
degree of an applicant's economic dependence on the fishery; and
(2) the extent of the applicant's past participation in the
fishery. AS 16.43.250; see, e.g., 20 AAC 05.600-.620.
4 Cf. 20 AAC 05.610 (points regulation for salmon and
other limited entry fisheries established under 20 AAC 05.320).
Under 20 AAC 05.610, an applicant must have actually "harvested"
fish to qualify for "past participation"points.
5 It is not apparent from the record why Lewis claimed
only one point for past participation in 1975 even though 20 AAC
05.664(a)(1) allows for two points.
6 The points verified were:
Past Participation in 1976 2
points
Investment in Vessel 1 point
Availability of Alternative Occupations 1 point
4 points
The points claimed but disallowed were:
Past Participation in 1974 1
point
Past Participation in 1975 1 point
Investment in Herring Seine 2 points
4 points
7 Because he had been found ineligible to apply for a
Prince William Sound permit, the CFEC's decision did not address
Lewis' claimed Prince William Sound points. These point claims
were first addressed by the hearing officer at the next stage of
the administrative process.
8 Throughout the history of this case, the parties have
cited the 1981 version of AS 16.43.260(a) which provided:
Application for Initial Issue of Entry
Permits. (a) The commission shall accept
applications for entry permits only from
applicants who have harvested fishery
resources commercially while participating in
the fishery as holders of gear licenses
issued under AS 16.05.536-16.05.670 and
interim-use permits issued under AS
16.42.210(a) or 16.43.225 before the
qualification date established in (d) or (e)
of this subsection.
(Emphasis added.) Unlike the 1977 statute, the 1981 statute
requires an eligible applicant to have harvested fish while
holding a valid interim-use permit as well as a valid gear
license. However, the parties' reliance on the 1981 statute does
not impact the issues presented in this case.
The hearing officer ruled that AS 16.43.140(a)
prohibited the commercial taking of fish without a valid interim-
use permit after January 1, 1974, and that any illegal "harvest"
taken in violation of AS 16.43.140(a) could not satisfy the
"harvest" requirement in AS 16.43.260(a). Lewis has not
challenged these rulings on appeal.
In any case, we are persuaded that the hearing officer
correctly applied the applicable statutes. In Simpler v. State,
728 P.2d 227 (Alaska 1986), we observed that only individuals who
had lawfully harvested fishery resources under AS 16.43.140(a)
could apply for a permit under AS 16.43.260(a) (1977).
9 On appeal, Lewis also asserts that the CFEC's ruling
that he was ineligible to apply for a Prince William Sound permit
violated his right to equal protection under the Alaska
Constitution because he was treated differently than similarly
situated applicants. He also contends that the CFEC is estopped
from changing its interpretation of the statute; that the CFEC
improperly applied a new rule of law retroactively; and that the
CFEC has deprived him of the right to due process. As the state
points out, Lewis did not raise these arguments below and we
decline to consider them for the first time on appeal. Sea Lion
Corp. v. Air Logistics of Alaska, 787 P.2d 109, 115-16 (Alaska
1990).
10 The Resources Committee initially introduced House Bill
126 to regulate the entry into Alaska Commercial Fisheries. That
bill applied only to the salmon fishery. H. B. 126, 8th Leg.,
1st Sess. (1973); 1973 House Journal 504. Thereafter, a
committee substitute bill was introduced which 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. The Act, including the eligibility statute,
applies to all fisheries to which the CFEC, within its
discretion, limited entry.
11 As a general rule, words and phrases must be construed
"according to their common and approved usage." See AS
01.10.040. Although "harvest"is not defined in AS 16.43.010 et
seq., its common meaning is "gather;" "reap" is a synonym.
Webster's Third New International Dictionary (1966). "Gather"is
in turn defined as "pick,""pluck,"or "cull." Id. In the
commercial fishing context, these terms necessarily imply the
actual landing of fish. By contrast, "participate"merely means
"to take part in an enterprise or activity." Id.
12 Because our holding resolves this issue in Lewis' favor,
we will not address the merits of Lewis' claim that he is
entitled to additional participation points for the years 1974
and 1975.
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