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Bartlett v. Alaska Commercial Fisheries Entry Commission (12/12/97), 948 P 2d 987
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ANTHONY BARTLETT, DAVID )
BARTLETT, LARAE BARTLETT, ) Supreme Court No. S-7377
and LORRIE BARTLETT, )
) Superior Court Nos.
Appellants, ) 3HO-90-191/192/193/194 CI
v. ) O P I N I O N
STATE OF ALASKA, COMMERCIAL ) [No. 4916 - December 12, 1997]
FISHERIES ENTRY COMMISSION, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Homer,
Charles K. Cranston, Judge.
Appearances: C. Michael Hough, Homer, for
Appellants. Robert C. Nauheim, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
This appeal involves applications for limited entry
fishing permits submitted by Lorrie, David, Anthony, and LaRae
Bartlett (collectively, the Bartletts). The Commercial Fisheries
Entry Commission (CFEC) denied the Bartletts' applications and
requests for an administrative hearing, concluding that because the
Bartletts submitted their applications after the final deadline, it
could not issue the requested permits. The superior court upheld
this ruling, and we affirm.
II. FACTS AND PROCEEDINGS
In the fall of 1974 CFEC mailed application request
forms, commonly called "yellow cards,"to the Bartletts. Lorrie
requested applications for a Southeastern drift gill net permit and
a Bristol Bay drift gill net permit. Anthony requested an
application for a Bristol Bay drift gill net permit. David
requested applications for a Southeastern drift gill net permit, a
Bristol Bay drift gill net permit, and a Bristol Bay set gill net
The application forms bore the notice, "IMPORTANT: READ
INSTRUCTIONS BEFORE COMPLETING THIS FORM,"and contained the
following instructions in capital letters in a box near the top of
the first page:
ANY TIME YOU HAVE 20 OR MORE VERIFIABLE
POINTS, YOU WILL RECEIVE A PERMIT AND YOU MAY SKIP TO PART 3 ON THE
REVERSE SIDE. SINCE PERMITS MAY BE AWARDED TO THOSE WITH FEWER
VERIFIABLE POINTS, ALL OTHER APPLICANTS, INCLUDING THOSE UNCERTAIN
OF POINTS, ARE URGED TO COMPLETE ALL LINES FROM 9 TO 24.
The application deadline was March 18, 1975.
The Bartletts allege that they discussed their
applications with CFEC Chairman Charles Stovall prior to the
deadline. They claim that Stovall informed them that "there was no
need for them to have CFEC process an application by them for a
fishery in which they did not have twenty (20) points." They also
allege that Commissioner Stovall informed them that "there were
certain types of points that cannot be duplicated in each
application, such as economic dependence points." The Bartletts
allege that, based on this information, they chose to abandon their
applications for the Bristol Bay permits at issue in this case.
Instead, they applied for and received only permits for fisheries
In 1984, apparently at the suggestion of a CFEC employee,
Lorrie, Anthony, and LaRae sent a letter requesting information
from the Fisherman History File on their activity for the contested
set net sites in Bristol Bay. Additionally, their letter stated:
During the original application period all
three of us did receive a notice from the entry commission of at
least 1 or 2 points for set-net permits, however we did not apply
at that time because we were told that we would not have enough
points to receive a permit. We feel we are now covered by the
Wassillie[ [Fn. 1]] decision and will be submitting our applications
based on that decision.
We received your request to research your
licensing/landing history to determine whether or not you were a
gear license holder and made landings sometime during the years
Your request for a licensing/landing
records check has not been construed as an application received by
the Commission. If you intend to apply for an entry permit under
the Wassillie settlement, you must contact the Alaska Legal
Services Corporation nearest you by March 1, 1985, and file an
application with them.
. . . .
Once an application has been filed at the
Commission through the Alaska Legal Services Office, a complete
licensing/landing history will be done.
Alaska Legal Services Corporation (Legal Services) filed
applications on behalf of Lorrie and LaRae with CFEC for Bristol
Bay set net permits. These applications incorrectly represented
that Lorrie and LaRae were Alaska Natives. All the Bartletts are
Caucasian. Legal Services refused to forward Anthony's application
because he did not claim to be an Alaska Native. In that letter,
Legal Services included information about appealing its decision
not to submit his application. It is unclear whether Legal
Services ever submitted David's application.
On September 6, 1985, CFEC informed LaRae that it could
not consider her application for class membership because she "did
not hold a gear license [between 1960 and 1972] in the fishery for
which [she had] applied." On October 1, 1985, Helen Bartlett,
LaRae's mother, wrote to Superior Court Judge Brian C. Shortell
contesting CFEC's determination. Judge Shortell ordered that LaRae
be allowed until November 1, 1985 to submit evidence proving her
eligibility. On November 6 CFEC notified LaRae that it had not
received any evidence and that she "must submit any evidence by
December 1, 1985." It also stated that her last opportunity to
submit evidence regarding her potential eligibility would be at a
hearing December 19 before Judge Shortell. She did not submit any
evidence or appear at the hearing.
On February 13, 1986, CFEC informed Lorrie Bartlett that
it had determined that he was not a member of the settlement class
and informed him of his right and opportunity to challenge the
decision. He never challenged the CFEC's determination.
In January 1989 the Bartletts requested information
concerning their permit applications. In June 1989 CFEC received
applications from the Bartletts for Bristol Bay set net permits.
The cover letters and attached affidavits stated that the
Bartletts' applications were late because of the advice that former
Commissioner Stovall gave them prior to April 1975.
CFEC informed the Bartletts that because they had
submitted the applications fourteen years after the close of the
application period for the fishery, CFEC was not authorized to
accept them. In making this determination, CFEC relied on 20
Alaska Administrative Code (AAC) 05.515 (1997), [Fn. 2] which CFEC
determined required "that after the close of the application
periods . . . the Commission will not accept an application for a
permanent entry permit for any fishery received by the Commission
after the maximum number of permits have been issued for the
particular fishery applied for . . . ." CFEC stated that since
"the Commission has reached the maximum number of permits in the
fishery applied for, we cannot accept a late application from [the
The Bartletts each filed a timely request for a hearing,
and CFEC denied the requests. A hearing officer affirmed CFEC's
denials, concluding that because CFEC could not accept applications
after the final deadline as a matter of law, it was not required to
provide a hearing. In response to the Bartletts' requests for
reconsideration, CFEC denied further administrative review.
The Bartletts appealed to the superior court, asserting
that the CFEC violated their due process rights by not granting a
hearing so that they could present evidence on their diligent
pursuit of fishing permits. They also claimed that by treating
them differently than other applicants because of their race, CFEC
violated their equal protection rights. The superior court
rejected both arguments, and the Bartletts now appeal.
A. Standard of Review
When the superior court acts as an intermediate court of
appeal, we review the merits of the underlying administrative
decision independently, giving no deference to the superior court's
decision. See Usibelli Coal Mine, Inc. v. State, Dep't of Natural
Resources, 921 P.2d 1134, 1141 (Alaska 1996). This case involves
both issues of constitutional law, which we review under the
independent judgment standard, Sonneman v. Knight, 790 P.2d 702,
704 (Alaska 1990), and CFEC's interpretation of its own
regulations, which we review under the "reasonable basis"standard.
Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161
B. The CFEC Did Not Violate the Bartletts' Due Process
Rights by Denying Them a Hearing.
An individual's interest in an application for a limited
entry fishing permit is entitled to due process protection. See
Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827,
832 (Alaska 1981). Normally, a hearing is one of the basic
components of due process. Id. at 834. However, this rule
is subject . . . to the exception that one
need not hold a hearing if there is nothing to hold a hearing
about[.] . . .
Thus, if an application is rejected
because it is outside valid time limits and this lateness is
apparent on the face of the application and is not contested by the
applicant, then there would be no substantial and material issue
which could be resolved at a hearing, and thus no need to hold the
hearing at all.
The Bartletts sought a hearing to demonstrate that their
applications fell under the so-called "misadvice"exception to the
application deadline. CFEC has accepted untimely applications
under this exception "when an applicant relied to his detriment on
advice given him by an agent of the CFEC." Vik v. Commercial
Fisheries Entry Comm'n, 636 P.2d 597, 600 (Alaska 1981). CFEC,
however, contends that the final application deadline established
by 20 AAC 05.515 "absolutely foreclosed, as a matter of law,"its
authority to accept "applications filed after January 2, 1981."
We agree with CFEC's interpretation of 20 AAC 05.515. As
CFEC argues, its refusal to accept applications under the misadvice
exception after the final deadline is strongly supported by the
State's interest in allowing only the predetermined maximum number
of permits for a particular fishery. See Wickersham v. State,
Commercial Fisheries Entry Comm'n, 680 P.2d 1135, 1142 (Alaska
1984) (stating that application deadline furthered the purpose of
the Alaska Limited Entry Act by restricting the number of people
involved in each fishery, thereby providing an economic benefit to
fishermen and furthering conservation of the fishery). CFEC
decisions applying the misadvice exception do not compel a
different result. As the Bartletts acknowledge, these cases all
involved permit applications filed prior to the date on which 20
AAC 05.515 took effect.
Thus, even if the Bartletts' allegations of misadvice are
true, CFEC properly denied their late applications under 20 AAC
05.515. The Bartletts' argument presented "no substantial and
material issue which could be resolved at a hearing,"and due
process therefore did not require that CFEC hold one. [Fn. 4]
Estate of Miner, 635 P.2d at 834.
C. CFEC Did Not Violate the Bartletts' Equal Protection
The Bartletts also argue that CFEC violated their
constitutional rights to equal protection by accepting applications
filed after the final deadline by members of the Wassillie
settlement class but not accepting their late applications under
the misadvice exception. They contend CFEC did not accept their
late applications because they were not Alaska Natives. To the
extent that the Bartletts claim that CFEC allowed members of the
Wassillie class to file applications under the misadvice exception
after the final deadline, they are mistaken. The plaintiff class
in Wassillie sought relief for constitutional violations, not for
misadvice. See Riley v. Simon, 790 P.2d 1339, 1340 (Alaska 1990).
Furthermore, the Wassillie lawsuit was filed in 1975, well before
the effective date of 20 AAC 05.515 in 1981. See id.
To the extent that Lorrie and LaRae also argue that CFEC
violated their equal protection rights by not including them in the
settlement class, they are barred by res judicata. [Fn. 5] Under
that doctrine, "a final judgment will bar any subsequent suit on
the same claim or demand, between the same parties or their
privies." Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995).
The superior court entered final judgment determining class
membership and approving the settlement in 1988. See Riley, 790
P.2d at 1341. Although CFEC specifically informed Lorrie and LaRae
of the procedures for challenging the decision to deny them class
membership, they failed to take advantage of those procedures or
appeal the superior court's final judgment. Therefore, res
judicata now bars any attempt to challenge the decision to exclude
them from the settlement class.
For the reasons above, we AFFIRM the superior court
decision upholding CFEC's denial of the Bartletts' applications for
limited entry fishing permits and their requests for a hearing.
We described the Wassillie settlement in Riley v. Simon, 790
P.2d 1339 (Alaska 1990). "In January 1975, a class-action suit was
brought against CFEC on behalf of those Alaska Native persons who
because of geographic location, language, cultural background, or
race, are unable to have a completed, or substantially completed,
application mailed to CFEC prior to the March 18, 1975 deadline."
Id. at 1340 (quotation omitted). The parties entered a consent
agreement extending the application period until April 18, 1975.
Id. However, after "[m]any eligible Natives nonetheless failed to
file timely applications,"the litigation was renewed. Id. CFEC
prevailed in the trial court, and plaintiffs appealed. Id. Before
a decision was issued, the parties settled. Id.
20 AAC 05.515 provides:
After the close of the application
periods established in 20 AAC 05.510, the commission will not
accept an application for a permanent entry permit for any fishery
if the application is received by the commission after the maximum
number of permits have been issued for the particular fishery
applied for or after permits for the particular fishery applied for
have begun to be issued under 20 AAC 05.550(c).
Although the maximum number of permits for the fishery was
realized prior to August 10, 1978, 20 AAC 05.515 did not take
effect until January 2, 1981.
The Bartletts also argue that their alleged actions in
discussing and reviewing applications for the contested permits
with a former commissioner of CFEC "should be treated as a timely
application." As CFEC points out, however, the Bartletts did not
raise this argument before CFEC or the superior court. Indeed, the
Bartletts repeatedly acknowledged that their applications were late
before both CFEC and the superior court. Therefore, we refuse to
consider this argument on appeal. See Gates v. City of Tenakee
Springs, 822 P.2d 455, 460 (Alaska 1991). [Fn. 6]
Lorrie and LaRae base their argument on the assertion that
CFEC refused to accept their permit applications in 1985 under the
Wassillie settlement. The Bartletts never clearly asserted that
David and Anthony submitted applications at that time, and the
record does not reflect that they did.
This argument also does not apply to LaRae's application,
since the Bartletts never allege that she ever prepared an
application in 1975.