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Kodiak Seafood Processors v. Alaska Department of Fish and Game (8/11/95), 900 P 2d 1191
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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, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
KODIAK SEAFOOD PROCESSORS )
ASSOCIATION, ) Supreme Court No. S-5987/6037
)
Appellant, ) Superior Court No.
Cross-Appellee, ) 1JU-93-274 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, COMMISSIONER,)
ALASKA DEPARTMENT OF FISH AND ) [No. 4235 - August 11, 1985]
GAME, )
)
Appellee/ )
Cross-Appellant. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Larry R. Weeks,
Judge.
Appearances: Gregory F. Cook, Douglas,
for Appellant/Cross-Appellee. Martin M.
Weinstein, Assistant Attorney General and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee/Cross-Appellant.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
EASTAUGH, Justice.
I. INTRODUCTION
On February 26, 1993, the Commissioner of the Alaska
Department of Fish and Game (Commissioner) issued an "Exploratory
Scallop Fishing Permit"(Permit) that allowed Mark Kandianis to
dredge for scallops in an area closed to scallop fishing. The
Kodiak Seafood Processors Association (KSPA) sought a temporary
restraining order to stop the dredging and a declaratory judgment
holding that the Commissioner's action improperly allowed
commercial scallop fishing in an area the Alaska Board of
Fisheries closed to commercial fishing.1 Although ADF&G revoked
the Permit before trial, KSPA requested summary judgment on its
motion for declaratory judgment. The superior court denied
KSPA's motion and granted the State's cross-motion for summary
judgment. KSPA appeals. We affirm.
II. FACTS AND PROCEEDINGS
This dispute began when the Alaska Department of Fish
and Game issued an "Exploratory Scallop Fishing Permit" to the
F/V Provider, a scallop fishing vessel owned and operated by Mark
Kandianis. The Permit allowed Kandianis to conduct "exploratory
fishing . . . in waters south of Kodiak Island currently closed
to fishing for weathervane scallops." The Permit required
Kandianis to pay to have a State observing biologist on board
while fishing. The biologist was to collect data from the
exploratory fishing operation. The Department would compile the
data and make it public. The Permit gave the ADF&G Area
Management Biologist power to terminate the Permit "when it is in
the best interest of the State of Alaska." The Permit stated
that it was granted "under the commissioners [sic] authority in
Alaska Statute 16.05.050."2 The Permit allowed Kandianis to keep
and sell the scallops to be collected on the trip.
The Permit was controversial because of the potential
injury and death to juvenile and adult crabs and other damage to
the ocean floor a scallop dredge might cause. The waters in
which the Permit allowed Kandianis to fish had been closed since
1969 to scallop dredging due to the high by-catch of King and
Tanner Crab and the high mortality rate of crab caught in the
dredge.3 5 Alaska Administrative Code (AAC) 38.425.
The manner in which the Permit was issued also upset
the Kodiak fishing community. Kandianis requested the Permit on
February 26. The Permit was issued and made effective that day.
Kandianis set out that afternoon. Aside from the Permit itself,
no agency record discusses issuing the Permit, nor was there any
public announcement that the Permit had been issued. ADF&G
admits that it failed to follow the procedures mandated by the
state procurement code.
On March 2 the Kodiak Seafood Processors Association,
an association of the managers of eight seafood processing
companies in Kodiak, filed suit in superior court seeking to
enjoin the dredging in closed waters. It asserted that the
Permit was issued contrary to law in a "back-door, `sweetheart'
deal."
ADF&G describes the circumstances surrounding issuance
of the Permit quite differently. It saw the Permit as a
necessary part of its development of a scallop fishery management
plan. Larry Nicholson, Westward Regional Supervisor for the
Commercial Fisheries Division of the Department, stated that the
Department had been considering conducting research in the closed
area because recent scallop and crab by-catch data were
unavailable. He stated that the Permit was issued to Kandianis
because Kandianis happened to be available to do the work and
that the decision to issue the Permit was rendered quickly
because the Department had a limited budget and wanted to issue
the Permit before the office got "mired in work relating to the
upcoming salmon and herring seasons." He stated that the
research areas were limited to six percent of the total closed
waters and were selected because they were not located in areas
known to be a critical crab habitat or crab nursery. According
to Nicholson, there was nothing unusual about contracting with a
private fisher to conduct a test fishery aside from the State's
failure to follow the usual procurement process. He stated that
in the future the State would either conduct the research itself
or follow the procurement code.
The F/V Provider began its voyage February 26, the
afternoon the Permit was issued. On board were the Captain,
Kandianis; a full crew for scallop fishing; a University of
Alaska observer trainer invited by Kandianis; and an ADF&G
biologist, the State observer required by the Permit. While the
crew of the Provider fished around the clock, the two biologists
sampled part of the catch.4 There was a significant Tanner crab
by-catch problem in the Albatross Banks area. There was no
commercial crab by-catch in the Chirikof area. After the voyage,
the ADF&G biologist wrote an eight-page memorandum documenting
the trip and the research conducted.
Many commercial fishermen were upset when news of the
Permit spread. On March 2, the same day KSPA filed suit, ADF&G
issued an Emergency Order that opened the closed waters to
scallop fishing exclusively under Kandianis' Permit. The order
was effective retroactively to February 26, the day the Permit
was issued, and was to continue in effect until March 17, two
days after the Permit was to expire.
On March 3, the day the State's response to Kodiak's
motion for a temporary restraining order was due, and two weeks
before the Permit was to expire, the State informed the superior
court that "the exploratory fishery had accomplished its goals"
and that the Permit had been revoked. On March 3 the superior
court ruled that KSPA's request for a restraining order was moot.
KSPA moved for summary judgment on its requests for declaratory
and injunctive relief based on the memoranda and exhibits on file
with the court at the time. The State also moved for summary
judgment.
The trial court denied KSPA's motion for summary
judgment and granted the State's cross-motion for summary
judgment. The court held: the Permit was lawfully issued under
the Department's authority to conduct research; the agency
decision did not rise to the level of a "regulation"; the agency
did not abuse its discretion in issuing the Permit; since the
Permit was not a regulation and did not constitute the opening of
a "commercial fishery,"there was no "special privilege to take
fish"that violated the Alaska Constitution; and any violation of
the procurement code was moot and not likely to be repeated
because the State admitted it was wrong and had pledged to follow
the procurement regulations. The court also held that ADF&G's
Emergency Order was illegal in this situation. However, it
concluded that the State's actions did not depend on the
Emergency Order because the Permit was legal under the
Commissioner's broad power to conduct research.
On the State's motion for attorney's fees, the court
held that KSPA was a public interest litigant and was therefore
exempt from having to pay its opponent's attorney's fees. Given
that finding, the court did not address KSPA's argument that the
State was not a prevailing party.
III. DISCUSSION
There are three primary issues on appeal. First, must
ADF&G comply with the state's procurement code when contracting
with the private sector to conduct research? Second, did the
Commissioner exceed his authority by issuing the Exploratory
Fishing Permit? Third, did the trial court abuse its discretion
in finding KSPA to be a public interest litigant?5
Because the Exploratory Fishing Permit has expired, we
must determine whether this appeal presents a justiciable case or
controversy before addressing the merits.
A. Mootness
Under ordinary circumstances, we will refrain from
deciding questions where events have rendered the legal issue
moot. Brandon v. Dep't of Corrections, 865 P.2d 87, 92 n.6
(Alaska 1993) (citing Hayes v. Charney, 693 P.2d 831, 834 (Alaska
1985)). A claim is moot if it has lost its character as a
present, live controversy. Kleven v. Yukon-Koyukuk School Dist.,
853 P.2d 518, 523 (Alaska 1993) (citing United States v.
Geophysical Corp., 732 F.2d 693, 698 (9th Cir. 1984)).
Mootness is particularly important in a case seeking a
declaratory judgment because there is an added risk that the
party is seeking an advisory opinion. Under the Alaska
Declaratory Judgment Act, "in case of an actual controversy" the
court has the discretion to "declare the rights and legal
relations of an interested party seeking the declaration." AS
22.10.020(g). In Jefferson v. Asplund, 458 P.2d 995 (Alaska
1969), we delineated the jurisdictional limitations governing the
court's authority to grant declaratory relief. We stated:
A "controversy"in this sense must be
one that is appropriate for judicial
determination. . . . A justiciable
controversy is thus distinguished from a
difference or dispute of a hypothetical or
abstract character; from one that is academic
or moot. . . . The controversy must be
definite and concrete, touching the legal
relations of parties having adverse legal
interests. . . . It must be a real and
substantial controversy admitting of specific
relief through a decree of a conclusive
character, as distinguished from an opinion
advising what the law would be upon a
hypothetical state of facts.
Id. at 998-99 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S.
227, 240-41 (1937)).
No scallop harvesting presently takes place in closed
Alaska waters. Therefore, KSPA's claims seeking declaratory and
injunctive relief are technically moot. Nevertheless, we may
choose to address certain issues if they fall under the public
interest exception to the mootness doctrine.
The public interest exception requires the
consideration of three main factors: (1) whether the disputed
issues are capable of repetition, (2) whether the mootness
doctrine, if applied, may cause review of the issues to be
repeatedly circumvented, and (3) whether the issues presented are
so important to the public interest as to justify overriding the
mootness doctrine. Peloza v. Freas, 871 P.2d 687, 688 (Alaska
1994); Brandon, 865 P.2d at 92 n.6. None of these factors is
dispositive; each is an aspect of the question of whether the
public interest dictates that a court review a moot issue.
Hayes, 693 P.2d at 834. Ultimately, the determination of whether
to review a moot question is left to the discretion of the court.
Id.; Brandon, 865 P.2d at 92 n.6.
1. Mootness of procurement issue
The superior court held that allegations ADF&G violated
the state's procurement code were moot. The State concedes that
the procurement code should have been followed before authorizing
the test-fishing operation. In addition, the Department of Law
issued a directive to ADF&G advising the Department to comply
with the code in the future. ADF&G stated it would do so.
KSPA maintains that the public interest exception to
the mootness doctrine should apply. However, KSPA fails to
demonstrate how this situation is likely to repeat, yet evade
review. Given ADF&G's acknowledgment that the procurement code
should have been followed and the directive the Department of Law
issued to ADF&G, we conclude that there is little likelihood that
ADF&G will fail to follow the procurement regulations in the
future, or that any future failures to follow the code would
evade review.6
2. Mootness of commercial fishing issue
Because the Permit has been revoked, the question of
the Commissioner's authority to issue the Permit is also
technically moot. Nonetheless, the issue presents a live
controversy. KSPA argues that by allowing a private fisher to
sell fish obtained during a research trip, the Commissioner
exceeded his authority by allowing "commercial fishing"in closed
waters. ADF&G argues that it has the authority to finance an
exploratory fishing operation by allowing a private contractor to
sell the catch.
This issue falls within the public interest exception
to the mootness doctrine. First, the issue is capable of
repetition. The State has not disavowed this type of financial
arrangement for future test-fisheries. Second, because research
fishing may be of limited duration, it is likely that, as in this
case, an individual permit would expire before the issue could be
litigated. Third, the scope of the Commissioner's power is an
issue of public interest.
Having determined that the commercial fishing issue
satisfies the requirements of the public interest exception, and
that the procurement issue does not, we turn to the merits of the
trial court's decision.
B. Commissioner's Authority to Issue the Permit
The trial court held that the Commissioner has the
legal authority to issue an "exploratory permit . . . for the
purpose of conducting a test fishery." It further held that
financing the operation through an agreement with a private
fisher that allowed the fisher to sell the catch did not
constitute "commercial fishing"as defined by statute.7
We review the superior court's grant of summary
judgment de novo. Alaska Fish Spotters v. State, 838 P.2d 798,
800 (Alaska 1992). Additionally, this case requires us to
interpret AS 16.05.940 and AS 16.05.050. Interpreting these two
statutes does not require special agency expertise. Therefore,
the substitution of judgment standard applies when we interpret
these statutes. Forest v. Safeway Stores, Inc., 830 P.2d 778,
780 n.3 (Alaska 1992).
There is no question that the Commissioner has the
authority to conduct a test fishery. By statute, he or she may
collect and disseminate statistics, conduct research, designate
developing commercial fish species, and sell fish caught during a
test fishing operation. AS 16.05.050(5), (11), (12), (15). KSPA
concedes that the Commissioner may conduct test fishing in closed
waters, contract with a third party to conduct a test fishery,
and sell the fish caught during a test fishery.
KSPA's objection is twofold: first, that by allowing
the fisher to keep and sell the fish caught, the Commissioner
illegally opened a commercial fishery; and second, that issuing
the Permit was an arbitrary and capricious administrative action.
We turn first to the financial arrangement between
Kandianis and ADF&G. Alaska Statute 16.05.050(15) would clearly
allow the Commissioner to sell the fish caught and give the
proceeds to the private fisher as consideration for the testing
services provided. We reject KSPA's argument that allowing a
fisher to sell the fish transforms a test fishery into a
commercial fishery. There is no material difference between
allowing the private fisher to sell the catch and having the
Commissioner sell the catch and give the proceeds to the private
fisher. The same quantity of fish would be caught, and the same
compensation would be received by the fisher under either
scenario. We therefore conclude that under AS 16.05.050, the
Commissioner has the authority to finance test fisheries in the
manner used here.8
KSPA's arbitrary and capricious argument also fails.
KSPA contends that the Permit was a de facto regulation that
opened a commercial fishery for a single person. KSPA argues
that the Permit requires an adequate contemporaneous
administrative record that explains why it was issued.
Initially, we note that KSPA is incorrect in calling
the Permit a regulation. "Indicia for identifying a regulation
include (1) whether the practice implements, interprets, or makes
specific the law enforced or administered by the state agency,
and (2) whether the practice `affects the public or is used by
the agency in dealing with the public.'" Gilbert v. State, Dep't
of Fish and Game, 803 P.2d 391, 396 (Alaska 1990) (quoting Kenai
Peninsula Fisherman's Coop. Ass'n v. State, 628 P.2d 897, 905
(Alaska 1981)). The Permit did not purport to promulgate or
implement a resource management plan, nor does it govern the
actions of any individuals aside from Kandianis.9 We therefore
review issuance of the Permit as an executive, not legislative,
act.
We have described an agency's discretionary decision
that does not require formal procedures as "quasi-executive" and
have applied the abuse of discretion standard in reviewing such
decisions. Olson v. State, Dep't of Natural Resources, 799 P.2d
289, 292-93 (Alaska 1990).
In this case, we find that ADF&G's decision to issue
the Permit was not an abuse of discretion, and that the trial
court did not err in granting summary judgment to the State.
ADF&G stated that the exploratory permit was issued to conduct a
research trip. It argues that the Permit was issued to determine
the "abundance of scallops and crab bycatch in two limited areas
of the closed waters." That information was to be used in
developing a scallop management plan the Department was
preparing. The State supplied several affidavits that support
its claim that the Permit was issued for research purposes. In
addition, the Permit itself was titled "Exploratory Scallop
Fishing Permit,"and required that a state biologist observer be
on board to collect and report data for the Department.
Aside from asserting the agency's affidavits are post
hoc rationalizations, KSPA does not directly challenge the
statements made by ADF&G.10 Moreover, KSPA does not argue that a
factual dispute exists concerning the purpose for which the
Permit was issued. Nor does KSPA present any evidence that the
State's affiants were being untruthful. KSPA apparently did not
attempt to depose the witnesses. Although some evidence supports
KSPA's assertion that this test fishery was rushed and poorly
planned, that evidence does not compel a conclusion that, as a
matter of law, research was not the intended purpose of the
Permit. There was other, unchallenged, evidence that the Permit
was issued for the purpose of conducting a research fishery.
Because the Commissioner has the express authority to conduct
research, we conclude that the trial court properly granted
summary judgment in favor of the State.11
C. Public Interest Litigant
The State argues that the superior court erred in
denying the State's motion for attorney's fees based on the
court's finding that KSPA was a public interest litigant.12 We
review this finding under the abuse of discretion standard of
review. Stein v. Kelso, 846 P.2d 123, 127 (Alaska 1993);
Anchorage Daily News v. Anchorage School Dist., 803 P.2d 402, 403-
04 (Alaska 1990).
We have identified four factors bearing on this
inquiry:
(1) Is the case designed to effectuate
strong public policies?
(2) If the Plaintiff succeeds will
numerous people receive benefits from the
lawsuit?
(3) Can only a private party have been
expected to bring the suit?
(4) Would the purported public interest
litigant have sufficient economic motive to
file suit even if the action involved only
narrow issues lacking general importance?
Anchorage Daily News, 803 P.2d at 404.
The State contends that the superior court did not
directly address the fourth criterion. It argues that KSPA had
sufficient economic incentive to bring this action. The State
points to the representations made by KSPA that its members could
suffer irreparable economic harm if scallop dredging were allowed
in the closed area.
The superior court did not abuse its discretion. It is
true that KSPA's members have a significant stake in the crab and
bottom fish fisheries around Kodiak. However, possessing an
economic interest does not necessarily destroy a party's capacity
to be a public interest litigant. Alaska Survival v. State, 723
P.2d 1281, 1292 (Alaska 1986). The potential economic benefit to
KSPA from this litigation is indirect. KSPA will gain only if
the areas are eventually reopened to crab fishing. The fact that
KSPA sought only equitable relief, rather than damages, also
indicates that economic motivation was not a significant factor
in bringing this case. We find that the superior court did not
abuse its discretion by finding KSPA to be a public interest
litigant.
IV. CONCLUSION
For these reasons, we AFFIRM the judgment entered
below.
_______________________________
1 Although the Alaska Board of Fisheries is part of the
Alaska Department of Fish and Game (ADF&G), it does not have
administrative, budgeting, or fiscal powers. AS 16.05.241. In
this case, when we discuss actions taken by ADF&G we are
referring to actions taken by the Commissioner of ADF&G, or by
employees of the Department acting under his authority.
2 AS 16.05.050 provides in pertinent part:
Powers and duties of commissioner. The
commissioner has, but not by way of
limitation, the following powers and duties:
. . . .
(5) to collect, classify, and
disseminate statistics, data and information
that, in the commissioner's discretion, will
tend to promote the purposes of this title
except AS 16.51 and AS 16.52;
. . . .
(11) not later than January 31 of
each year, to provide to the commissioner of
revenue the names of those fish and shellfish
species that the commissioner of fish and
game designates as developing commercial fish
species for that calendar year . . .
(12) to initiate or conduct
research necessary or advisable to carry out
the purposes of this title . . .
. . . .
(15) to sell fish caught during
commercial fisheries test fishing operations
. . . .
3 In 1976 we had occasion to describe the effect a
scallop dredge has on the ocean floor. State v. Sieminski, 556
P.2d 929 (Alaska 1976). We stated: "There was considerable
testimony to the effect that this mode of fishing was highly
destructive of the crab resource, inasmuch as a dredge would
indiscriminately crush crabs and other shellfish as it gathered
its catch." Id. at 932. The effect of a dredge does not appear
to have changed in the years since we issued that opinion. The
observing biologist aboard the F/V Provider noted in his report
that the Tanner crab by-catch was, "22% excellent, 25% poor, and
53% dead, mostly due to crushing injuries to the carapace."
4 In the Albatross Banks area, they sampled nine of
nineteen dredges. In the Chirikof area, thirty-seven of the
sixty-one tows were examined for crab by-catch and three were
sampled for species composition.
5 KSPA also argues that the Commissioner must articulate
"compelling biological circumstances that constitute a
conservation emergency"before issuing an emergency order, and
that Kandianis refund to the State all proceeds from the sale of
the fish. Kandianis We do not reach the first of these issues
because the trial court ruled in KSPA's favor and the State did
not appeal. Therefore there is no live controversy before us.
We do not reach the second issue because Kandianis is not a party
to this action and KSPA fails to develop this argument. See
Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska
1992); State v. O'Neill Investigations, Inc., 609 P.2d 520, 528
(Alaska 1980).
6 We note that KSPA did not seek, and does not appear to
have been in a position to seek, damages for ADF&G's failure to
follow the procurement code. If a party-in-interest, such as a
competitor scallop fisher, had objected to the procedures by
which this Permit was issued, his or her damage claim would not
necessarily be mooted by expiration of the Permit.
7 AS 16.05.940(5) defines commercial fishing as "the
taking, fishing for, or possession of fish, shellfish, or other
fishery resources with the intent of disposing of them for
profit, or by sale, barter, trade, or in commercial channels . .
. ."
8 We note that the State has conceded that this type of
funding arrangement is subject to the State procurement code. AS
36.30.100.
9 "Regulation"is defined by AS 44.62.640(3) as:
[E]very rule, regulation, order, or
standard of general application . . .
[W]hether a regulation, regardless of name,
is covered by this chapter depends in part on
whether it affects the public or is used by
the agency in dealing with the public.
10 We have held that although post hoc rationalizations
are suspect and must be viewed critically, they still may be
considered. Alaska Int'l Constr., Inc. v. Earth Movers of
Fairbanks, 697 P.2d 626, 629 (Alaska 1985) (the possibility that
an after-the-fact explanation is a post hoc rationalization "at
most means that the court should subject the findings to more
critical scrutiny."). The trial court did not err in considering
the agency's affidavits.
11 KSPA also argues that the Permit violated the Alaska
Constitution. Its argument relies on the premise that the Permit
"created a special privilege of commercial fishing exclusively
for the Permittee." Because we hold that the Permit was for
research rather than commercial purposes, it is unnecessary to
reach KSPA's constitutional claims.
12 The State moved for an award of $21,830, fifty percent
of its attorney's fees.
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