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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pasternak v. State, Commercial Fisheries Entry Commission (09/07/2007) sp-6159
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| WALTER PASTERNAK, | ) |
| ) Supreme Court No. S- 12239 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-09352 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| COMMERCIAL FISHERIES | ) |
| ENTRY COMMISSION, | ) No. 6159 - September 7, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Donald D. Hopwood, Judge.
Appearances: Michael Hough, Homer, for
Appellant. John T. Baker, Assistant Attorney
General, Anchorage, and David W. M rquez,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
The Alaska Limited Entry Act created the Commercial
Fisheries Entry Commission (CFEC) to regulate entry into
commercial fisheries.1 In 1985 the Commission limited
participation in the Northern Southeast Inside sablefish longline
fishery, a non-distressed fishery, to a maximum of seventy-three
permits.2 CFEC distributes the seventy-three permits on a points-
based application system.3 Walter Pasternak challenges CFECs
determination that seventy-three is the maximum and optimum
number of permits for this fishery and contends that CFEC erred
in failing to consider his claim for additional points for past
participation based on extraordinary circumstances. The superior
court upheld CFECs decisions, and Pasternak appeals. Because our
decision in Simpson v. State, Commercial Fisheries Entry
Commission forecloses Pasternaks challenges to the maximum and
optimum number of permits for this fishery and because Pasternaks
claim for extraordinary circumstances fails, we affirm the
superior court.
II. FACTS AND PROCEEDINGS
Alaskas Limited Entry Act was enacted in 1973 to
promote the conservation and the sustained yield management of
Alaskas fishery resource and the economic health and stability of
commercial fishing in Alaska by regulating and controlling entry
of participants and vessels into the commercial fisheries in the
public interest and without unjust discrimination.4 CFEC is
charged with implementing the Act.5 CFEC determines the optimum
number of permits for each fishery and establishes qualifications
for the issuance of permits.6 Alaska Statute 16.43.250(a)
requires that CFEC rank applicants for entry permits according to
the degree of hardship which they would suffer by exclusion from
the fishery.
In 1985 CFEC limited participation in the Northern
Southeast Inside sablefish (blackcod) longline fishery because it
feared for the economic and environmental health of the fishery.7
Required to set the maximum number of permits at a level no lower
than the highest number of units of gear in the fishery in the
four years prior to the January 1, 1985 qualification date,8 CFEC
determined that the maximum number of permits for the fishery
would be seventy-three.9 CFEC had authority to set the optimum
number of permits for the non-distressed fishery at a level
higher than the maximum number of seventy-three.10 In April 2000
CFEC issued a public notice proposing seventy-three permits as
the optimum number, as well as the maximum number.11 In May 2001
seventy-three became the optimum number.12 CFEC distributes the
seventy-three permits on a point system that determines an
applicants order of priority based on past participation as a
skipper and crew member in the fishery and economic dependence on
the fishery, with points for income dependence and vessel
investment.13
In November 1987 Walter Pasternak submitted a timely
application for a limited entry permit. Pasternak claimed fifty-
one points, including eighteen points for past participation as a
skipper in 1984, three points for past participation as a crew
member in 1980, fifteen points for vessel ownership of the F/V
Lory, and fifteen points for income dependence.14 On April 14,
1989, CFEC notified Pasternak that it had awarded him forty-three
and one-half points, crediting him with the requested twenty-one
points for past participation, fifteen points for income
dependence, and half the fifteen points he claimed for vessel
ownership. CFEC reduced the vessel ownership points because
Pasternak and his wife jointly owned the F/V Lory.
Pasternak requested a hearing regarding . . . points
given in evaluation for investment in the [F/V Lory], contending
that he was entitled to all fifteen points claimed for vessel
investment. Hearing Officer Jesse Walters conducted a hearing on
October 31, 1989. At the hearing, Pasternak and his wife Megan
testified that although they owned the vessel as joint tenants,
they did so for estate planning purposes; Megan never operated
the F/V Lory as an interim-use or entry permit holder in any
Alaskan fishery in the relevant time period. On March 6, 1991,
Walters issued a written decision finding the testimony of the
Pasternaks to be credible, awarding all fifteen vessel ownership
points, and declaring that Pasternaks application would be
finally classified with fifty-one points. Because Pasternak did
not request further review, the classification became final in
May 1991.
On January 21, 2003, CFEC issued a Final Agency Order
and Decision Denial Notice. CFEC denied Pasternaks application,
indicating that fifty-one points was insufficient to qualify him
for a permit. On February 13, 2003, Pasternak filed a petition
for reconsideration, claiming that CFEC had set the maximum and
optimum number of permits too low. On February 19, 2003,
Pasternak filed an appeal in superior court.15 The superior court
stayed the appeal pending the resolution of Simpson.16 In
November 2004 we issued our decision in Simpson, upholding CFECs
determination that seventy-three was the maximum and optimum
number of permits for this fishery.17 On January 24, 2006, the
superior court affirmed CFECs decision, reasoning that our
decision in Simpson foreclosed Pasternaks arguments regarding the
number of permits and finding that Pasternak failed to exhaust
his administrative remedies to claim additional points for the
1983 season. Pasternak appeals.
III. DISCUSSION
A. Standard of Review
When the superior court acts as an intermediate court
of appeal, we independently review the merits of the
administrative decision.18 We have recognized four principal
standards of review for administrative decisions: (1) the
substantial evidence standard applies to questions of fact; (2)
the reasonable basis standard applies to questions of law
involving agency expertise; (3) the substitution of judgment
standard applies to questions of law where no expertise is
involved; and (4) the reasonable and not arbitrary standard
applies to review of administrative regulations.19 When reviewing
an agencys interpretation of its own regulation, we apply the
reasonable basis standard.20 We defer to the agency unless its
interpretation is plainly erroneous and inconsistent with the
regulation. 21
B. CFEC Did Not Err in Setting the Number of Permits for
the Northern Southeast Inside Sablefish Longline
Fishery.
1. Maximum number of permits
As we explained in Simpson, AS 16.43.240(b) provides
that CFEC shall limit participation in a fishery by establishing
a maximum number of entry permits.22 For a non-distressed
fishery,23 CFEC must set the maximum number of permits at a level
that is no lower than the highest number of units of gear fished
in the four years prior to the limitation of the particular
fishery.24 CFEC limited participation in this fishery in 1985 and
determined that 1984 was the year with the highest number of
units of gear fished, with seventy-three.25 CFEC adopted seventy-
three as the maximum number for this fishery.26
Pasternak claims that CFEC erred when it established
the maximum number of permits in the fishery. He argues that
CFEC should increase the maximum number of permits by 10 permits
or 5% as permitted. CFEC contends that it may exceed the maximum
number of permits only where required to do so by law, which it
maintains is not the case here. CFEC further argues that our
decision in Simpson forecloses Pasternaks argument that the
maximum number of permits should be increased based on conditions
in the fishery. The superior court found that Simpson foreclosed
Pasternaks arguments regarding the maximum number of permits for
this fishery.
In Simpson, Steven Simpson appealed CFECs denial of his
application for a permit in the Northern Southeast Inside
sablefish longline fishery the same fishery at issue in this
case.27 Simpson challenged both the maximum and the optimum
number of permits CFEC established for the fishery.28 We applied
a two-pronged test to CFECs establishment of seventy-three as the
maximum number of permits. First, we clarified that the maximum
should be set at a level that is no lower than the highest number
of units of gear fished in any one year of the four years prior
to the limitation of the particular fishery.29 We held that
seventy-three permits met this requirement.30 Next we applied the
requirement that CFEC must meet the [Limited Entry] Acts two
legislative purposes of enabling fishermen to receive adequate
remuneration and conserving the fishery. 31 Noting that CFEC
considered comments from the Alaska Department of Fish and Game
that even seventy-three permits might be unsustainable for the
fishery, we held that seventy-three permits also met the second
prong of the test.32 We rejected Simpsons argument that CFEC
should increase the maximum number based on conditions in the
fishery.33 As a result, Simpson forecloses Pasternaks argument
that CFEC should increase the maximum number.
We need not consider Pasternaks second argument
regarding the maximum number, that seventy-four not seventy-
three is the highest number of units of gear in the four years
prior to the limitation of the fishery.34 Although this argument
is not foreclosed by Simpson,35 Pasternak has not shown that he
was prejudiced by CFECs determination that seventy-three is the
maximum number of permits. According to CFEC, it is
mathematically impossible for an applicant with 51 or fewer
points to qualify for a permit in the fishery. Nothing in the
record suggests that Pasternak would have qualified for a permit
if the maximum were seventy-four, and he has made no such
argument to this court. Because we need not consider an argument
without a showing of prejudice, we do not address his argument
that the maximum number should be seventy-four.36
2. Optimum number of permits
In addition to the maximum number of permits, AS
16.43.290 requires CFEC to establish the optimum number of
permits for each fishery. The optimum number is to be based upon
a reasonable balance of several factors, including maintaining an
economically healthy fishery and avoiding economic hardship.37
In Simpson, we upheld CFECs decision to set the optimum
number as seventy-three for this fishery.38 Despite noting that
this courts decision in Simpson precludes a good faith and
responsible request of this Court to reverse [Simpsons] holding
regarding optimum numbers, Pasternak suggests that incredibly
positive changes in the fishery justify an increase in the
optimum number of permits.39
CFEC does not address the argument regarding optimum
numbers directly but does argue that Pasternaks arguments
regarding the number of permits are precluded by Simpson. In
Simpson, we upheld CFECs decision, noting evidence before CFEC
that the stock strength of the fishery was declining and that the
Alaska Department of Fish and Game thought that even seventy-
three permits would be too many.40 Given Simpson, Pasternaks
cursory challenge to CFECs determination of the optimum number of
permits for this fishery is without merit.
C. CFEC Did Not Err when It Did Not Award Pasternak Past
Participation Points Based on Extraordinary
Circumstances.
CFEC awards applicants past participation points for
each of the relevant years in which they participated in the
fishery.41 Pasternak maintains that CFEC erred by refusing to
consider his claim for participating in 1983. CFEC responds that
Pasternak failed to exhaust his administrative remedies and that
he does not qualify for past participation points for 1983. We
need not address CFECs contention that Pasternak failed to
exhaust his administrative remedies because regardless of
whether Pasternak exhausted his administrative remedies he loses
on the merits.
An award of past participation points for 1983 requires
either a harvest of at least 2,000 pounds in that year42 or a
proof of extraordinary circumstances under 20 AAC 05.703(d).
Because Pasternak did not participate in the fishery in 1983, he
is not eligible for past participation points for 1983 unless he
can show extraordinary circumstances. CFEC regulations provide:
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.[43]
In a letter accompanying his permit application,
Pasternak explained that he did not participate in 1983 because
people told him his equipment was not strong enough for blackcod
fishing. Pasternaks testimony during his 1989 hearing confirmed
that he did not participate in 1983 because of the advice of
others and his concerns about equipment. Pasternaks explanation
does not fall within the boundaries of extraordinary
circumstances as defined by the regulation.
In Cleaver v. State, Commercial Fisheries Entry
Commission, we upheld a hearing officers determination that
Cleaver had not demonstrated extraordinary circumstances.44
Cleaver claimed past participation points for extraordinary
circumstances in 1983. He attempted to fish but had problems
with his anchors, a dangerous bait chute, difficulty reading his
depth finder, and tangled gear.45 We upheld the hearing officers
determination that Cleaver did not meet the three-part test for
extraordinary circumstances that requires an applicant to show:
(1) specific intent to participate; (2) extraordinary
circumstances prevented participation; and (3) the applicant made
all reasonably possible efforts to participate.46 We noted that
Cleavers lack of experience and appropriate equipment do not
constitute extraordinary circumstances.47 We also upheld the
hearing officers determination that Cleaver did not make all
reasonably possible efforts to participate because he did not
attempt to obtain a loan to remedy his mechanical problems.48
Pasternaks case for extraordinary circumstances is even
less compelling. Unlike Cleaver, Pasternak makes no showing of
specific intent to participate because he never even attempted to
fish in 1983. Moreover, given that the significant mechanical
difficulties Cleaver encountered did not rise to the level of
extraordinary circumstances, the advice Pasternak heeded
certainly does not either. Finally, Pasternak does not show that
he made all reasonably possible efforts to participate since he
elected not to participate solely on the basis of advice from
others. We therefore hold that CFEC did not err by declining to
award Pasternak past participation points for 1983.
IV. CONCLUSION
We AFFIRM the decision of the superior court upholding
CFECs decision. In Simpson, we upheld CFECs determination that
seventy-three was the maximum and optimum number of permits for
this fishery. Because Pasternak can show no prejudice from CFECs
use of the number of vessels to determine the number of units of
gear, we do not consider his claim that seventy-four should be
the maximum number. Finally, Pasternak is not entitled to past
participation points for 1983 because he did not show
extraordinary circumstances.
_______________________________
1 AS 16.43.020.
2 Simpson v. State, Commercial Fisheries Entry Commn, 101
P.3d 605, 607 (Alaska 2004).
3 20 Alaska Administrative Code (AAC) 05.705 (2006).
4 AS 16.43.010(a).
5 AS 16.43.100.
6 AS 16.43.100(a)(6) & (9).
7 Simpson, 101 P.3d at 607.
8 Id.
9 Id. at 607-08. We affirmed that determination. Id. at
611.
10 Id. at 613.
11 Id. at 609.
12 20 AAC 05.1145.
13 20 AAC 05.705.
14 Although Pasternak appears to have claimed five points
for income dependence on his original application, for a total of
forty-one points, he amended his application in December 1988 to
claim fifteen points for income dependence for a total of fifty-
one points.
15 At the time, CFEC had not yet ruled on Pasternaks
request for reconsideration. On March 14, 2003, CFEC informed
Pasternak that it view[ed his] action in filing the Superior
Court appeal as effectively withdrawing [his] request for
reconsideration [and] . . . therefore, intend[ed] to take no
action on [the] request for reconsideration.
16 101 P.3d 605.
17 Id. at 611, 613.
18 Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
19 Id.
20 Simpson, 101 P.3d at 609.
21 Id. (quoting Lauth v. State, 12 P.3d 181, 184 (Alaska
2000)).
22 Id. at 609-10.
23 The Northern Southeast Inside sablefish longline
fishery is a non-distressed fishery. See 20 AAC 05.310(f)(1).
We explained the difference between distressed and non-distressed
fisheries in Johns v. Commercial Fisheries Entry Commission:
First, a [non-distressed] fishery . . . may tolerate more units
of gear than the historic high. In contrast, a distressed
fishery, by definition, cannot . . . . Second, a distressed
fishery is one which is overgeared as of January 1, 1973. 758
P.2d 1256, 1262 n.6 (Alaska 1988).
24 Simpson, 101 P.3d at 609-10 (quoting Johns, 758 P.2d at
1262 n.6).
25 Id. at 608; 20 AAC 05.310(f)(1); 20 AAC 05.320(e)(1);
20 AAC 05.330(j).
26 20 AAC 05.320(e)(1).
27 101 P.3d at 608.
28 Id. at 610, 612.
29 Id. at 611 (emphasis added).
30 Id.
31 Id. (quoting Johns, 758 P.2d at 1263).
32 Id.
33 Id.
34 Pasternak maintains that CFEC incorrectly based the
maximum number on the seventy-three vessels participating in
1984, when it should have based the maximum number on the seventy-
four participants in 1984.
35 We did not address Simpsons argument that the highest
number of units of gear was seventy-four, not seventy-three,
because Simpson had waived the argument. 101 P.3d at 611.
36 See, e.g., Younker v. Alaska Commercial Fisheries Entry
Commn, 598 P.2d 917, 920-21 (Alaska 1979) (holding that we would
not consider an argument that preferential treatment of gear
license holders discriminated against an applicant where he had
not shown injury from that preference); see also Johns, 758 P.2d
at 1262-63 (holding that error in setting a maximum number lower
than the historic high did not require reversal where appellant
was not prejudiced).
37 AS 16.43.290 provides:
Following the issuance of entry permits under
AS 16.43.270, the commission shall establish
the optimum number of entry permits for each
fishery based upon a reasonable balance of
the following general standards:
(1) the number of entry permits
sufficient to maintain an economically health
fishery that will result in a reasonable
average rate of economic return to the
fishermen participating in that fishery,
considering time fished and necessary
investments in vessels and gear;
(2) the number of entry permits
necessary to harvest the allowable commercial
take of the fishery resource during all years
in an orderly, efficient manner, and
consistent with sound fishery management
techniques;
(3) the number of entry permits
sufficient to avoid serious economic hardship
to those currently engaged in the fishery,
considering other economic opportunities
reasonably available to them.
38 101 P.3d at 613.
39 It is not clear whether Pasternak is appealing only the
maximum number or both the maximum and the optimum number. His
statement of issues identifies only the maximum number of permits
as an issue. He suggests the optimum number should be increased,
but his conclusions focus exclusively on the maximum number.
40 101 P.3d at 613.
41 20 AAC 05.705.
42 20 AAC 05.705(a)(1).
43 20 AAC 05.703(d).
44 48 P.3d 464, 470 (Alaska 2002).
45 Id. at 466.
46 Id. at 468-70.
47 Id. at 469.
48 Id. at 469-70.
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