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Cleaver v. State, Commercial Fisheries Entry Commission (6/7/2002) sp-5576
Cleaver v. State, Commercial Fisheries Entry Commission (6/7/2002) sp-5576
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
JOHN T. CLEAVER, )
) Supreme Court No. S-9689
Appellant, )
) Superior Court No.
v. ) 1JU-99-968 CI
)
STATE OF ALASKA, COMMERCIAL)
FISHERIES ENTRY COMMISSION, ) O P I N I O N
)
Appellee. ) [No. 5576 - June 7,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Bruce B. Weyhrauch, Law Office
of Bruce B. Weyhrauch, Juneau, for Appellant.
Shannon OFallon, Assistant Attorney General,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. In his first attempt at participating in the Northern
Southeast Inside Sablefish Longline fishery, John Cleaver called
it a season after only two days because his homemade wooden bait
chute was too dangerous, his equipment for fishing halibut proved
inadequate for sablefish, and his line got tangled in the gear of
other fishers. To qualify for skipper participation points
towards a permanent limited entry permit, Cleaver characterized
his problems as an extensive mechanical breakdown. The
Commercial Fisheries Entry Commission did not accept that
characterization, and denied Cleaver the points he needed for a
permit. The superior court affirmed the commissions decision and
awarded attorneys fees to the state. We affirm in all respects.
II. FACTS AND PROCEEDINGS
In 1973 the Alaska legislature enacted the Limited
Fisheries Entry Act.1 The act established the Commercial
Fisheries Entry Commission and charged it with the duties of
regulat[ing] entry into the commercial fisheries for all fishery
resources in the state and establish[ing] priorities for the
application of the provisions of this chapter to the various
commercial fisheries of the state.2 The legislature required
that the prioritization of fishery applicants be based on a
reasonable balance of an applicants degree of economic dependence
on the fishery and extent of past participation in the fishery.3
The commission determined that the Northern Southeast
Inside Sablefish Longline fishery could sustain a maximum of
seventy-three commercial fishers.4 The commission developed
regulations to prioritize applicants for fishery permits using a
one-hundred point scale with points awarded for economic
dependence, vessel investment, and past participation.5 The
commission decided that all applicants with eighty-one to one
hundred points would be given permanent entry permits because
they would suffer significant economic hardship by exclusion from
the fishery.6 The permits remaining after the hardship
applicants received permits would be awarded to those applicants
with the highest point totals. As the applicants point claims
were verified, the commission periodically calculated the minimum
points required for a permit based on the remaining number of
permits and the point totals of the remaining applicants.
Applicants who fell below this denial point level became
ineligible for a permit. The remaining applicants those with
less than the eighty-one points but more than the current denial
point level received interim permits while their applications
were being verified and processed.7
In 1972 John Cleaver began commercial fishing in Alaska
as a troller. In 1979 Cleaver bought the F/V Deep Sea and fished
for salmon and halibut. During the spring of 1983, he attempted
to longline8 for sablefish9 for the first time in the Northern
Southeast Inside Sablefish Longline fishery. Cleaver assumed
that longlining for sablefish would be similar to the fishing at
shallower depths that he had done previously.
Cleaver had several problems during his first attempt
at longlining for sablefish in April 1983. First, the halibut
anchors that Cleaver used were not heavy enough to get to the
depths of sablefish. Second, the bait chute that he built was
dangerous. Cleavers makeshift wooden bait chute allowed the
lines to bounce up and down to the extent that he feared for the
safety of his crew. Third, Cleavers depth sounding equipment
gave readings in meters instead of fathoms, which Cleaver said
gave him trouble judging the depth. As Jana Sushy, one of
Cleavers two deckhands who was on her first longline trip,
admitted, none of us really knew the proper details or overall
concept. Cleavers gear got tangled with the gear of another
fisher, and Cleaver gave up longlining for sablefish after two
days. Cleaver landed only 385 pounds of sablefish. Although the
fishery was opened later that year between September 1-7 and
October 10-14, Cleaver did not attempt to longline for sablefish
again in 1983 because he did not have enough money to correct the
problems with his equipment.
After the 1983 season, Cleaver bought the necessary
equipment for longlining sablefish. In 1984 Cleaver successfully
participated in the fishery.
In 1987 Cleaver applied for a permanent entry permit to
the Northern Southeast Inside Sablefish Longline fishery. He
claimed a total of sixty-five points: eighteen skipper
participation points for the 1984 fishing season, seventeen
skipper participation points for the 1983 fishing season, fifteen
points for income dependence, and fifteen points for vessel
investment.10 The commission originally found that Cleaver
qualified for only forty and one-half points. The commission
allowed only seven and one-half points for vessel investment
because Cleavers wife was a co-owner of the F/V Deep Sea, and it
disallowed any points for skipper participation in 1983,
presumably because Cleavers participation that year was so
minimal. Cleaver timely requested an administrative hearing. At
the hearing, Cleaver argued that he should get all fifteen points
for vessel investment and seventeen points for skipper
participation in 1983 based on extraordinary circumstances.
In 1991 a hearing officer decided that Cleaver was
entitled to the full fifteen points for vessel investment because
the Cleavers purchased the F/V Deep Sea as joint tenants to
satisfy the financing banks requirements and because Wendy
Cleaver was not applying for a permit in the fishery. But as to
skipper participation in 1983, the hearing officer found that
Cleaver failed to prove that he was entitled to skipper
participation points based on extraordinary circumstances because
he abandoned his intent to participate, because his loss of
financial ability to continue in the fishery did not constitute
an extraordinary circumstance, and because he failed to
demonstrate that he made all reasonably possible efforts to
participate in the fishery. The commission adopted the hearing
officers decision as a final decision after sixty days.
Cleaver filed a petition for administrative review, a
request to accept a late-filed petition, and a request for an
interim permit. The commission declined to accept Cleavers late
petition to reopen his application because he failed to
demonstrate due diligence from the time of his actual notice of
the hearing officer and final commission decisions and because
his underlying substantive claim fail[ed] to present a genuine
issue that would warrant further administrative proceedings. The
commission also denied Cleaver an interim use permit.11
Cleaver appealed to the superior court. Superior Court
Judge Patricia A. Collins affirmed the commissions decision and
awarded attorneys fees of $3,039 to the state, which was twenty
percent of the 101.3 hours spent on the appeal at a market rate
of $150 per hour. Cleaver now appeals both the denial of his
petition to review his application and the award of attorneys
fees to this court.
III. STANDARDS OF REVIEW
In administrative appeals, we directly review the
agency action in question.12 We review the commissions factual
findings under the substantial evidence standard.13 Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.14 We apply a
deferential reasonable basis standard of review to an agencys
interpretation of its own regulations.15 Our review of the
commissions application of the law to the facts is limited to
whether the decision was arbitrary, unreasonable, or an abuse of
discretion.16
We review a superior courts award of attorneys fees for
abuse of discretion.17
IV. DISCUSSION
A. The Commission Did Not Err by Refusing To Give Cleaver
Skipper Participation Points for 1983 Based on Extraordinary
Circumstances.
Cleaver argues that his difficulties longlining during
the 1983 sablefish season met the criteria for extraordinary
circumstances and that the commission erred in refusing to award
him skipper participation points for that year.
Title 20 AAC 05.705(a)(1) sets out the schedule for
skipper participation points for 1982-84.18 To be eligible for
the points for a certain year, the regulation requires the
applicant to have commercially harvested at least 2,000 pounds of
sablefish in the fishery as a skipper.19 Cleaver harvested only
385 pounds of sablefish in 1983. Accordingly, he was not
eligible to claim skipper participation points for 1983 under 20
AAC 05.705.
Under 20 AAC 05.703(d), however, an applicant may be
awarded points he was otherwise ineligible to claim if
extraordinary circumstances prevented his participation.20 The
hearing officer applied a three-part test to determine whether an
applicant was entitled to participation points because of
extraordinary circumstances: (1) whether the applicant had the
specific intent to participate in the fishery, (2) whether he was
prevented from doing so due to some extraordinary circumstances,
and (3) whether, despite those circumstances, he made all
reasonably possible efforts to participate in the fishery.
1. Specific intent
1. The hearing officer found that Cleaver once had the specific
intent to participate in the fishery but abandoned that intent
after discovering that his set-up on the Deep Sea was both
inadequate and dangerous and concluding that he couldnt afford to
make the necessary changes that year. The commissions decision
to deny Cleavers petition for reconsideration noted several
portions of the hearing transcript where Cleaver indicated that
he gave up his specific intent to participate that year. In one
portion, Cleaver testified that:
it had been my intention to fish . . . in in
83, I had had some friends that told me that
was a good thing to do and I was I wanted to
do it, but I I felt that I was going to
with the equipment that I had, I probably ran
the risk of endangering other peoples gear
and my crew, hurting somebody and I didnt
think it was safe or plausible to do it, so I
chose not to.
Later in the hearing, the hearing officer and Cleaver had this
exchange:
Hearing Officer: [Y]ou just called it a day
then?
Mr. Cleaver: Yeah, I called it a season . . .
[.]
Hearing Officer: Season.
Mr. Cleaver: . . . for the [sablefish].
In a third excerpt, Cleaver volunteers that he gave up:
Hearing Officer: Okay. So this happened back
in April?
Mr. Cleaver: Right.
Hearing Officer: You had your two days, you
had this landing . . . .
Mr. Cleaver: And I gave it up at that point.
By his own testimony, Cleaver candidly admitted that he abandoned
his intent to participate in 1983.
Furthermore, Cleaver made no attempt to participate in
the two openings in the fishery later in the year during the
periods of September 1-7 and October 10-14. During the first
opening, Cleaver was trolling for salmon; during the second, he
had already returned to Seattle for the season. Substantial
evidence supports the hearing officers finding that Cleaver
abandoned his intent to participate.
2. Extraordinary circumstances
The commissions regulations give examples of what
situations constitute extraordinary circumstances. Extraordinary
circumstances include . . . the loss of vessel or equipment
through sinking, destruction, or extensive mechanical breakdown .
. . . Extraordinary circumstances do not include . . . loss of
the financial means to continue participation in the fishery.21
The commission interpreted the extraordinary
circumstance of extensive mechanical breakdown to exclude the
problems encountered by first-time participants in the fishery.
The commission reasoned that Cleavers lack of financial resources
to mechanically refit his vessel is a problem so common to first-
time entrants that it does not qualify as an extraordinary
circumstance . . . . [P]roblems faced by first-time entrants are
far too common to be treated as extraordinary, unavoidable, or
special circumstances.
The commissions interpretation is reasonable. The term
extraordinary excludes the common. The term mechanical breakdown
implies that the equipment worked at some point. Inability to
properly use equipment and unsuitability of equipment are not
generally considered to be mechanical breakdowns. Thus, the
commissions interpretation is reasonable under the regulation.
We have previously approved of the commissions similar
interpretation of the term unavoidable circumstances in a
parallel regulatory situation. In Alaska Commercial Fisheries
Entry Commission v. Russo,22 Russo argued that he was entitled to
points under the unavoidable circumstances clause of 20 AAC
05.630(a)(5),23 similar to Cleavers claim for points under the
extraordinary circumstances clause of 20 AAC 05.703(d). In
Russo, we upheld the commissions interpretation limiting
unavoidable circumstances to cases where fishers were prevented
from fishing by circumstances beyond their control.24 Although
the words extraordinary and unavoidable have slightly different
meanings, both are used to describe problems of an extreme
nature. Both regulations allow the commission the discretion to
award past participation points if extreme circumstances
prevented the applicants participation. Here, the difficulties
Cleaver encountered during his first attempt to longline for
sablefish were common to other first-time entrants and thus were
not exceptional.
Cleavers lack of experience and appropriate equipment
do not constitute extraordinary circumstances, and neither does
Cleavers financial inability to resolve those problems.25 The
record demonstrates that Cleaver simply lacked the economic
resources to participate in the fishery. The hearing officer
found that Cleaver lost the financial ability to continue in the
fishery. At the hearing, Cleaver stated that I didnt have the
money to really set up properly for for [sablefish] and that I
had to make some major changes and to make those major changes
during the season would have been I I just couldnt have done
it. We were too financially strapped to get it accomplished in
time for the 1983 . . . season in the fall. However, while
substantial evidence supports the hearing officers finding that
Cleaver could not participate in the fishery due to financial
problems, the commission has consistently disallowed points for
unavoidable circumstances when the problems were lack of money,
equipment, or experience faced by a first-time entrant in the
fishery.26 Thus the commissions application of the law to the
facts of this case is not arbitrary, but rather consistent and
reasonable.
3. All reasonably possible efforts to participate
The hearing officer found that Cleaver did not make all
reasonably possible efforts to participate because he did not
seek a loan for the estimated $4,000 of modifications, equipment,
and repairs he needed to enable him to safely longline for
sablefish. Although Cleaver now presents evidence that he did
ask one bank for a loan, he testified to the contrary at the
hearing:
Hearing Officer: I take it then, you didnt
try to get the $4,000 loan from anybody in
order to get get the gear in shape to make
the [indisc.].
Mr. Cleaver: I was right up to my neck in
loans. I couldnt couldnt even think about
it.
Even if Cleaver did make an attempt to get a loan, that single
effort is not inconsistent with the hearing officers finding.
Substantial evidence supports the hearing officers finding that
Cleaver did not make all reasonably possible efforts to
participate in 1983.
We uphold the commissions decision because the factual
findings were supported by substantial evidence, the commissions
interpretation of the term extraordinary circumstances was
reasonable, and its application of that interpretation was not
arbitrary.
B. The Superior Court Did Not Abuse Its Discretion by Its Award
of Attorneys Fees.
Cleaver argues that the superior court abused its
discretion in awarding attorneys fees. The superior court
awarded $3,039, which was twenty percent of $15,195, the states
total claimed attorneys fees. The state calculated its claim for
attorneys fees by multiplying its attorneys actual hours spent
preparing the appeal, 101.3 hours, by a market rate of $150 per
hour.
Alaska Rule of Appellate Procedure 508(e)27 grants a
superior court sitting as an intermediate court of appeal broad
discretion to award attorneys fees.28 If the court finds that the
appeal was frivolous or brought simply for the purposes of delay,
full actual fees may be awarded. Otherwise, awards of attorneys
fees under Alaska Appellate Rule 508(e) should only partially
compensate the prevailing party for attorneys fees.29 The
appellate court may exercise its sound discretion and award a
substantial sum as partial attorneys fees, if persuaded the
amount of fees to be awarded is justified and reasonable.30 A
superior court may also look to Alaska Rule of Civil Procedure
82(b)(2) as a guideline for a reasonable award of attorneys fees.31
We discern no abuse of discretion in the superior
courts award of attorneys fees. The state prevailed on all
appealed issues. Because the superior court did not make an
express finding that the appeal was frivolous, full attorneys
fees are not permitted. But even if the superior court had
substituted the states 1997 billing rate, $94.72 for its internal
clients, as suggested by Cleaver, the award of $3,039 is only
about thirty percent of the states attorneys fees. Given this
partial award of attorneys fees, the superior courts broad
discretion under Appellate Rule 508(e), the weakness of Cleavers
substantive claims, and the remaining facts and circumstances of
this case, the superior courts award was not an abuse of
discretion.
V. CONCLUSION
Because the commission did not err in refusing to give
Cleaver skipper participation points and because the superior
courts award of attorneys fees was not an abuse of discretion, we
AFFIRM the commissions denial of a limited entry permit and the
superior courts award of attorneys fees.
_______________________________
1 See ch. 79, 1 SLA 1973; Vik v. Commercial Fisheries
Entry Commn, 636 P.2d 597, 598 (Alaska 1981). The act is now
codified at AS 16.43.010-.990.
2 AS 16.43.100(a)(1) & (2); see also AS 16.43.020.
3 AS 16.43.250(a).
4 20 Alaska Administrative Code (AAC) 05.310(f)(1)
(2000); 20 AAC 05.320(e)(1).
5 20 AAC 05.701-.713.
6 20 AAC 05.711(a).
7 AS 16.43.210(a); 20 AAC 05.415(a).
8 Longlining uses baited hooks on offshoots (gangions or
leaders) of a single main line (usually several miles long) to
catch fish. Trolling is towing individual fishing lines behind a
moving boat.
9 Sablefish are also known as black cod.
10 Cleaver made his claims under 20 AAC 05.705.
11 Although the commissions decision denied Cleavers
request for a 1999 interim use permit, Cleavers appeals to the
superior court and this court have resulted in issuance of
interim use permits to him by the commission under the
requirement of Kalmakoff v. State, Commercial Fisheries Entry
Commn, 697 P.2d 650, 652 (Alaska 1985).
12 Northern Alaska Envtl. Ctr. v. State, Dept of Natural
Res., 2 P.3d 629, 633 (Alaska 2000).
13 Jones v. Commercial Fisheries Entry Commn, 649 P.2d
247, 249 n.4 (Alaska 1982).
14 Commercial Fisheries Entry Commn, State v. Baxter, 806
P.2d 1373, 1374 (Alaska 1991) (quoting Keiner v. City of
Anchorage, 378 P.2d 406, 411 (Alaska 1963)).
15 Bartlett v. State, Commercial Fisheries Entry Commn,
948 P.2d 987, 990 (Alaska 1997).
16 Rose v. Commercial Fisheries Entry Commn, 647 P.2d 154,
161 (Alaska 1982) (citing State, Dept of Admin. v. Bowers Office
Prods., Inc., 621 P.2d 11, 13 (Alaska 1980)).
17 Stoshs I/M v. Fairbanks N. Star Borough, 12 P.3d 1180,
1183 (Alaska 2000).
18 20 AAC 05.705(a)(1) provides:
(A) Skipper participation points may be
claimed for a given season subject to the
requirement that the applicant must have
commercially harvested at least 2,000 pounds
of sablefish in the fishery as a skipper. A
rebuttable presumption exists that the
applicant was a crewmember and not a skipper
for that season if the applicant had only one
day with landings in the fishery and the
sablefish poundage from that days landings
represented less than 15 percent of the total
sablefish poundage delivered from the vessel
during that season in the fishery.
(B) An applicant may claim skipper
participation points for the 1982 - 1984
seasons as shown in the following schedule:
Season Available
Points
1984
18
1983
17
1982
16
19 20 AAC 05.705(a)(1)(A).
20 20 AAC 05.703(d) provides:
If extraordinary circumstances prevented
an applicant from participating in the
fishery in a given season, the commission
will, in its discretion, award the applicant
those points the applicant could reasonably
have claimed but for the extraordinary
circumstance. Extraordinary circumstances
include temporary illness or disability, the
loss of vessel or equipment through sinking,
destruction, or extensive mechanical
breakdown, and other similar objectively
verifiable causes of non-participation.
Extraordinary circumstances do not include,
for example, voluntary or involuntary
retirement from the fishery, permanent
illness, permanent disability, or loss of the
financial means to continue participation in
the fishery.
21 Id.
22 833 P.2d 7 (Alaska 1992).
23 Id. at 8.
24 Id. at 9-10.
25 E.g., In re Lundahl, CFEC File No. 75-642 (July 17,
1991) (The problems he encountered (primarily, gearing up) were
not unique to this applicant; rather, they are common among those
entering a fishery for the first time.); In re Anderson, CFEC
File No. 75-624 (May 7, 1982) (Inability to obtain financing is
not, by itself, an unavoidable circumstance . . . . [T]he costs
and difficulties incurred in entering a fishery must be faced by
all fishermen. (internal quotation marks omitted)); In re Vick,
CFEC File No. 75-756 (October 27, 1982).
26 20 AAC 05.703(d).
27 Alaska R. App. P. 508(e) provides:
Attorneys fees may be allowed in an
amount to be determined by the court. If
such an allowance is made, the clerk shall
issue an appropriate order awarding fees at
the same time that an opinion or an order
under Rule 214 is filed. If the court
determines that an appeal or cross-appeal is
frivolous or that it has been brought simply
for purposes of delay, actual attorneys fees
may be awarded to the appellee or
cross-appellee.
28 Municipality of Anchorage, Police & Fire Ret. Bd. v.
Coffey, 893 P.2d 722, 731 (Alaska 1995).
29 State Pub. Employees Ret. Bd. v. Cacioppo, 813 P.2d
679, 685 (Alaska 1991) (quoting Kenai Peninsula Borough v. Cook
Inlet Region, Inc., 807 P.2d 487, 501 (Alaska 1991)).
30 Id.; see also Stalnaker v. Williams, 960 P.2d 590, 598
(Alaska 1998) (affirming award of eighty-six percent of actual
fees).
31 See Carr-Gottstein Props. v. State, 899 P.2d 136, 148
(Alaska 1995).
