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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. May v. State, Commercial Fisheries Entry Commission (10/12/2007) sp-6173
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
| BERT E. MAY, | ) |
| ) Supreme Court No. S- 12267 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 1KE-04-00582 CI |
| ) | |
| STATE OF ALASKA, | ) |
| COMMERCIAL FISHERIES | ) |
| ENTRY COMMISSION, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6173 - October 12, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Trevor N. Stephens, Judge.
Appearances: Michael W. Holman, Ketchikan,
for Appellant. Vanessa Lamantia, Assistant
Attorney General, and David W. M rquez,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Bert May appeals the denial of a limited entry permit
to enter the Southeast Alaska herring purse seine fishery. Mays
application, which has been pending since 1977, was denied
because May did not participate in the geographically-defined
fishery in the years preceding his application. May received
notice in 1977 that his fishing in the waters of Annette Island
Reserve (AIR) did not qualify him for the fishery because AIR
waters were not part of the defined limited fishery, a
determination which an administrative hearing officer affirmed in
a written decision almost twenty five years later, and which the
Commercial Fisheries Entry Commissions (CFEC or the commission)
Final Decision likewise affirmed. The superior court
subsequently affirmed the CFEC Final Decision in all respects.
Rather than argue that he is eligible to apply for a
permit and receive participation points under the applicable
regulations, May argues through a variety of legal theories that
the commission should grant him an entry permit because it
(erroneously) gave participation points to another applicant for
Annette Island Reserve fishing activity. Because the doctrines
that May relies upon, including collateral estoppel, stare
decisis, and due process, do not require that we perpetuate an
erroneous decision in clear contravention of the applicable
statutes and regulations, we affirm the CFEC Final Decision. May
additionally appeals the superior courts award of attorneys fees.
Because there was no error in the award of attorneys fees, we
affirm that decision.
II. FACTS AND PROCEEDINGS
The Alaska Legislature enacted the Limited Entry Act1
in 1973 in order to promote the conservation and sustained yield
management of Alaskas fishery resources and the economic health
and stability of commercial fishing in Alaska.2 In 1977 the
Alaska Commercial Fisheries Entry Commission, the agency tasked
with implementing limited entry, limited access to the Southeast
roe herring purse seine fishery.3 According to a 1985 CFEC
memorandum on the subject, initially the commission wanted to
limit only the sac roe herring fishery, but not the fishery for
bait or food herring.4 It believed its only statutory authority
to separate the winter bait and food fishery from the sac roe
fishery lay in its authority to establish administrative areas.
Thus, the commission divided Southeast into two areas, A-1, which
included the area in which it believed herring to spawn, and A-2,
which included the rest of the Southeast. Under the regulations,
the only area in the Southeast to receive a designation requiring
limited entry for herring seining was A-1.5 The commission
decided to issue thirty five permits for that fishery.6
In order to prioritize among the applicants, the CFEC
awarded points based on investment in a vessel and gear,
availability of alternative occupations,7 and participation in
the fishery during the years 1974-1976.8 In addition, to be
eligible to apply for a permit, an applicant must have harvested
the resource of the fishery during that time with proper licenses
or interim-use permits.9 Six points proved necessary for award
of a limited entry permit.10
Bert May applied for a permit to enter the Southeast
purse seine herring fishery on March 4, 1977. May sought a total
of eight points: two for past participation in 1976, two for past
participation in 1975, one for availability of alternative
occupations, one for investment in a vessel, and two for
investment in a herring purse seine. Eleven years later May
added the claim that he had participated in the fishery in 1974,
for which he sought an additional participation point. May, a
member of the Metlakatla Indian Community, had fished the waters
around Annette Island Reserve11 (AIR) during 1975-1976. Those
waters were outside state control and no state permit or license
was necessary to fish there. However, May attempted to qualify
for the herring fishery on the basis of his AIR activity.
On April 8, 1977, the CFEC sent May a letter notifying
him that because he only herring seined in AIR waters, he was
ineligible to apply for the entry permit. The CFEC subsequently
told Mays attorney that the reason for the denial was because May
did not participate in the herring fishery in northern Southeast
Alaska (the area referred to as A-1 in the regulations).
In a subsequent telephonic discussion Mays attorney
apparently persuaded a CFEC hearing examiner that the lack of
eligibility requirements in the regulations meant that May was
eligible to apply for a permit. The hearing examiner verbally
stated that although May was still not qualified to earn
participation points for fishing in AIR waters, he would send May
notice reversing the April 8 determination of ineligibility to
apply. It is not clear from the record whether the examiner
realized at the time that while the regulations were silent on
eligibility requirements, AS 16.43.260(a) specified that the
commission could only accept applications from individuals who
had previously harvested in the fishery. (Emphasis added.)
Regardless, on May 25, 1977, the CFEC informed May that its
initial determination declining to accept his application was
correct pursuant to the relevant statutes in conjunction with the
regulations.
In April 1978 the commission wrote to May and informed
him that his application was still pending and invited him to
submit additional evidence. May responded with an explanation of
his claim and an offer of proof that was supported by evidence
submitted by him the previous year. In his letter May asked to
re-apply for a Southeastern herring purse seine permit. May
explained that he had purchased sonar and invested in more gear
in 1976 with full confidence that his past participation would
entitle him to a limited entry permit. The commission did not
respond and the issue of Mays permit lay dormant for the next six
years.12 While Mays case was pending he was able to participate
in the fishery.
In June 1984 May requested that the CFEC reopen his
case. The CFEC responded that it would make a decision on
whether or not to accept Mays permit application based upon the
possibility that administrative error occurred when it was
originally denied. The letter indicated that the decision to
accept Mays application for processing was a decision that would
be made prior to a determination of whether or not May had enough
points to qualify for a permit.
In January 1985 the commission remanded the application
to the adjudication section of the CFEC for a determination as to
Mr. Mays eligibility to apply for his Southeastern herring purse
seine entry permit. This remand notice, which was copied to May,
detailed the procedural history of Mays case and requested that
the adjudication section not foreclose Mays application on
procedural grounds. The notice also spelled out some of the
relevant statutory and regulatory background and stated that the
effect of Commission decision [Clement13] is that fishing in
Metlakatla waters . . . should be credited to an applicant,
unless our regulations by their terms preclude doing so. The
letter also asked the adjudication section to look critically at
Mr. Mays claim, in case the commission has overlooked some aspect
of this record and stated both at the beginning and end of the
two-page notice that the adjudication staff should make a
determination of Mays eligibility.
On April 24, 1985, the adjudication section of the CFEC
informed May that he was ineligible to apply because he had not
actively harvest[ed] the fishery resource in area A-1. The CFEC
wrote that [t]he regulations in place at the time of entry
limitation specifically excluded the waters around Annette
island. The CFEC explained that AIR waters fell outside the
concretely defined 1977 boundaries of area A-1.
May timely requested an administrative hearing, which
the commission granted. The hearing was initially scheduled for
February 1986 and postponed to May 1986 at the request of Mays
attorney. The administrative hearing was conducted before
Hearing Officer David Ingram, and May was the only witness. May
testified that he purse seined for herring in AIR waters in 1974-
1976 and that he attempted to purse seine for herring in Behm
Canal during 1974 with what he believed were the proper permits
and licenses, though he could not find them at that date.
Hearing Officer Ingram left the record open for additional
evidence. May submitted four affidavits over the next two months
supporting his testimony. One from Harvey Leask stated that May
had leased an eighty-five fathom herring purse seine from him in
1974 and purchased it in 1975. May submitted an affidavit
attesting to his purchase of a sonar unit in spring 1976. May
also submitted affidavits from Frank Hayward and Ronald Porter
which attested to Mays participation in the sac roe herring purse
seine fishery in 1974 in North Behm Canal,14 and which also spoke
to Mays good character and reliance on Annette Island Packing
Company for proper licensing. In December 1988 May requested an
extension of time to submit more evidence. None was submitted
for the next nine years.
In April 1993 Mays then-attorney, Brad Brinkman,
informed the CFEC that he was leaving on a one-year sabbatical
and that Doug Rickey would represent May in Brinkmans absence.
In July 1997 Hearing Officer Ingram informed May that Brinkman
had left private practice and that the record in his case would
close on July 29, 1997. Mays new attorney, Daniel Bruce, filed a
memorandum in support of the application which argued that May
should receive participation points for 1974 on the basis of the
previously-filed affidavits.
On December 31, 2002, Hearing Officer Ingram issued a
decision concluding that May was ineligible to apply for the
permit, and that even if May had proven his eligibility to apply,
his claims for points for alternative occupations and vessel/gear
investments would fail for lack of proof. The hearing officer
also determined that May was not entitled to participation points
for fishing activity in AIR waters. He noted that his decision
that AIR waters did not qualify May for participation points was
at odds with an earlier CFEC decision in Leask,15 but explained
that Leask was improperly decided.
May filed a petition for administrative review with the
CFEC and mentioned Leask16 and Clement.17 May argued that the
hearing officers refusal to award May points violated his rights
to equal access and equal protection and was discriminatory. In
December 2004 the CFEC issued a decision (CFEC Final Decision)
denying the petition for administrative review, affirming the
hearing officers decision that May was ineligible to apply, and
modifying the hearing officers decision to the extent that, had
May been found eligible to apply, he would have been awarded four
points. Those points would have been for investment in vessel
and gear and for availability of alternative occupations.18 This
decision left May ineligible to apply for a permit and, if later
found eligible, in need of two participation points. May
appealed to the superior court on the issues of his eligibility
to apply for a permit and his entitlement to participation points
for 1974 through 1976, emphasizing that his application received
a different outcome than Leask.
Superior Court Judge Trevor N. Stevens heard oral
argument in Mays case in October 2005. In March 2006 Judge
Stevens affirmed the CFEC Final Decision on all points on appeal.
The superior court awarded the CFEC attorneys fees in
the amount of $4,532.50, which represented twenty percent of the
actual fees incurred. The superior court noted that May had
litigated in good faith and pursued non-frivolous claims, and
awarded the partial fee award in light of five findings: (1) CFEC
prevailed on appeal; (2) May did not claim that the fees were
unreasonable or not reasonably incurred; (3) CFECs billings and
records reflected that the hourly rate was reasonable, the fees
were incurred with respect to the appeal, and the fees were
reasonably incurred; (4) CFEC necessarily expended considerable
effort on the appeal and prevailed but did not recover a money
judgment; and (5) Mays argument that the equities favor his
position was not supported by the record.
May appeals.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeal from an agency decision, we directly review the agency
determination.19 We apply four standards of review to
administrative decisions:
(1) the substantial evidence test for
questions of fact; (2) the reasonable basis
test for questions of law involving agency
expertise; (3) the substitution of judgment
test for questions of law where no expertise
is involved; and (4) the reasonable and not
arbitrary test for review of administrative
regulations.[20]
We apply our independent judgment to a due process
claim because it raises a question of law that does not involve
agency expertise.21 Additionally, [t]he applicability of
collateral estoppel to a particular set of facts is a question of
law subject to independent review.22 Where . . . the question is
as to the merits of agency action on matters committed to agency
discretion, our scope of review is limited to whether the
decision was arbitrary, unreasonable or an abuse of discretion.23
Attorneys fee awards are reviewed for an abuse of
discretion and overturned only when the superior courts award was
manifestly unreasonable.24
IV. DISCUSSION
May does not expressly appeal the finding of
ineligibility to apply for a permit, despite including it as his
first point on appeal. The superior court found that he waived
his appeal on this. While we could conceivably find likewise,
and end the inquiry into Mays entitlement to a permit on this
point, we will address the issue because Mays eligibility to
apply is closely tied to the issue of whether or not credit
should be given for fishing in Annette Island Reserve (AIR)
waters a topic which May discusses extensively. May organizes
most of his arguments under his appeal for participation points
for 1976, and he briefly addresses his participation point claims
for 1975 and 1974. We address the issue of Mays eligibility as
it pertains to 1974-1976.
A. The CFEC Did Not Err in Concluding that May Was Not
Eligible To Apply for a Permit.
1. May is not eligible to apply for a permit based on
fishing in AIR waters.
Eligibility to apply for a permit to enter a controlled
fishery is governed by AS 16.43.260(a). That statute states:
The commission shall accept applications for
entry permits only from applicants who have
harvested[25] fishery resources commercially
while participating in the fishery as holders
of gear licenses . . . or interim-use permits
. . . before the qualification date . . . .
Fishery is defined quite specifically by the statute:
Fishery means the commercial taking of a specific fishery
resource in a specific administrative area with a specific type
of gear.26 Thus, the Southeast herring purse seine fishery is
defined by location, type of fish, and type of gear used.27
Eligibility to apply for a permit for the fishery therefore
hinges on the fisher having previously fished in the defined
area, for herring, using a purse seine, with the proper license
and permit.
Regulation 20 AAC 05.310 limited entry in three herring
fisheries. The first was described as Specific Southeastern
Alaska Area (A-1) purse seine fishery. The regulations defined
area A-1 as:
all waters of Lynn Canal north of the
latitude of Shrine of St. T[h]erese and
south of the latitude of Sherman Rock,
excluding all waters of Berners Bay within a
line from Pt. St. Mary to Pt. Bridget, and
all waters of Seymour Canal north of 57 37'
N. lat., and
all waters of and adjacent to the Pacific
Ocean south of the latitude of Neva Point and
north of a line projected southwest of Cape
Ommaney and west of Baranof Island.[28]
Mays primary eligibility problem29 is his failure to
have fished within the specific geographical area that defines
the fishery. May based his application on a history of purse
seining in AIR waters. But May makes no argument that the waters
of Annette Island Reserve fall within the boundaries of area A-1.
He also makes no argument that the regulations, by their terms,
suggest that eligibility points or participation for the A-1
fishery can be earned for fishing conducted in an area outside of
A-1. Hearing Officer Ingram noted that almost the entire area of
Southeast Alaska was excluded from consideration in the purse
seine system, including the waters around the Annette Islands
Reserve and those in North Behm Canal. Only three small,
discrete areas were included. Thus, according to the regulations
in place at the time May applied for a permit, May is ineligible
to apply for a limited entry permit based on his fishing in AIR
waters.
Mays most oft-repeated argument in favor of his
eligibility is based on the fact that in Leask30 the CFEC granted
participation points to an applicant who attempted to fish in AIR
waters. In Leask the CFEC held that the hearing officer had
erroneously denied credit to Harvey Leask, an applicant for the
roe herring purse seine fishery, for attempting to fish in AIR
waters in 1976. The CFEC concluded that Leask deserved points
for AIR participation based on Clement,31 which gave participation
points for AIR fishing in 1975 towards a limited entry permit in
the herring gill net fishery.32 As Hearing Officer Ingram pointed
out below, however, the herring gill net fishery at issue in
Clement operated under different regulations and involved a
point system that was remarkably different from the roe herring
purse seine fishery. Under regulations promulgated in 1978, the
herring gill net fishery awarded participation points for
qualified activity within any part of area A for the years 1972-
1975, and gave points based on participation in sub-areas of A
(including an other section) in 1976 and 1977.33 While area A by
definition included AIR waters,34 the sub-areas used for the later
years explicitly excluded AIR waters by not mentioning it as a
sub-area and defining other as all portions of administrative
area A not included above, excluding the waters of Metlakatla
Indian Reservation.35 In Clement the applicant received credit
for fishing in AIR waters in 1975 only.36
Unlike the herring gill net fishery, the roe herring
purse seine fishery specifically defined area A-1 in such a way
that plainly excluded AIR, making any additional mention of AIR
superfluous. The CFEC in Leask apparently did not realize this
distinction and read Clement as controlling in the roe herring
purse seine context, holding that it authorizes an award of
points for past participation in the waters of the Metlakatla
Indian Reservation, unless such an award is precluded by the
terms of Commission regulations. . . . [T]here is no such
exclusion in Commission regulations governing the Southeastern
roe herring purse seine fishery.37 However, the CFEC recognized
its Leask error in subsequent cases and Hearing Officer Ingram
explained that Leask must be overruled because it was
inconsistent with the regulations. The CFEC Final Decision
wholly affirmed the hearing officers conclusions in this regard,
adding that Clement was probably wrongly decided even for the
gill net fishery insomuch as the later regulations meant to
clarify the agencys intent all along, which was never to award
participation credit for fishing in AIR waters. The CFEC Final
Decision also noted that Mays case is distinguishable for the
additional reason that Mays eligibility to apply hinges on AIR
water harvesting, whereas Leask and Clement were only concerned
with participation points for applicants who were already
eligible to apply.38 The superior court likewise held that Leask
was wrongly decided and that the regulations applicable to May
excluded AIR waters.
The reasonable basis standard of review applies to the
agencys interpretation of statutes within its area of expertise
and to the interpretation of its own regulations.39 Because the
CFEC clearly had a reasonable basis to conclude that its
regulations defining the A-1 area do not include AIR waters, and
because Leask was wrongly decided when it awarded participation
points for activity in AIR waters, we affirm the CFECs finding
that May was not eligible to apply for a permit based on his AIR
fishing. Rather than argue the merits of his eligibility or the
merits of the initial Leask decision, May spent the lions share
of his brief arguing variations on the theme that the CFEC should
be bound to its decision in Leask regardless of its lack of
foundation in the law.40 Taken together those arguments can be
generally answered with a statement that we have adopted from
Judge Friendly: The making of an error in one case . . . gives
other[s] . . . no right to its perpetuation.41 We address Mays
specific arguments below.
2. The CFEC was not collaterally estopped from
denying credit for AIR claims by its decision in
Leask.
May relies on State v. United Cook Inlet Drift
Association42 for the proposition that the CFEC was collaterally
estopped from denying Mays claim because of its earlier decision
in Leask. In Cook Inlet we defined three requirements for the
application of collateral estoppel:
(1) The plea of collateral estoppel must be
asserted against a party or one in privity
with a party to the first action;
(2) The issue to be precluded from
relitigation by operation of the doctrine
must be identical to that decided in the
first action;
(3) The issue in the first action must have
been resolved by a final judgment on the
merits.[43]
We also adopted a limited exception to the application
of collateral estoppel against the state on unmixed questions of
law.44 We recognized that the state should be permitted to
relitigate an issue if it is one of law and treating it as
conclusively determined would inappropriately foreclose
opportunity for obtaining reconsideration of the legal rule upon
which it was based. 45 As May notes, Cook Inlets exception to
collateral estoppel only applies where the two cases involve
unrelated subject matter.46 Here the subject matter between Leask
and May is largely related.
However, Cook Inlet is distinguishable from the present
case because Cook Inlet did not address the unique position of
the state when it acts in a quasi-judicial role. There the state
was sued in two related actions regarding the constitutionality
of its all-Alaskan policy which, in eliminating the preference to
rural residents that we had earlier found to be unconstitutional,
granted subsistence rights to all Alaskans.47 In Cook Inlet the
state acted in the role of law-maker, rather than adjudicator.
In the instant case, the CFEC did not issue a new regulation
whose merits were ruled upon by another court, but instead
rendered an erroneous decision and opted not to perpetuate its
error when faced with similar facts in a different case.
The superior court held that under Alaska law the
doctrine of collateral estoppel does not apply to a judicial
body. The state supports the superior courts position with three
cases from other jurisdictions in which claims of estoppel
against an agency were rejected.48 While we have never directly
addressed this issue before, we agree with the superior court and
the state that an assertion of collateral estoppel against an
agency acting in a quasi-judicial capacity is inappropriate,
particularly in cases where, as here, the agency is correcting
its prior action in order to conform to the law.
The Supreme Court has recognized that an agency may
flatly repudiate previously devised norms that are no longer
required in order to effectuate congressional policy, provided
that the agency explain its departure.49 Once the departure from
precedent is explained, the reviewing court is limited to
[determining] whether the rationale is so unreasonable as to be
arbitrary and capricious.50 May appears to embrace this standard
of review in part, because he cites similar cases under his due
process argument. May cites Ramaprakash v. F.A.A.51 for the
proposition that
agency action is arbitrary and capricious if
it departs from agency precedent without
explanation. Agencies are free to change
course as their expertise and experience may
suggest or require, but when they do so they
must provide a reasoned analysis indicating
that prior policies and standards are being
deliberately changed, not casually
ignored.[52]
(Emphasis added.)
But May never alleges that the CFEC failed to explain
that its Leask decision was being overturned. Indeed, both the
hearing officers decision and the CFEC Final Decision explicitly
addressed Leask in detail and expressed reasons for overturning
it. Because applying collateral estoppel here would violate the
flexibility that courts have traditionally given agencies to
correct errors in order to properly implement policy, we decline
to apply it in this case.
3. The doctrine of stare decisis does not require
that Leask control.
May argues that the doctrine of stare decisis binds the
CFEC to follow the Leask precedent in his case. This argument
presents a question of law unrelated to agency expertise and thus
we apply our independent judgment.53 When confronted with stare
decisis, we have held that we will overrule a prior decision only
when clearly convinced that the rule was originally erroneous or
is no longer sound because of changed conditions, and that more
good than harm would result from a departure from precedent.54
The superior court noted that May failed to provide any legal
authority to support the proposition that stare decisis applies
to administrative agencies.
We agree with the superior court that consistent with
Alaska law55 and decisions of the United States Supreme Court,56
agencies may overrule a prior decision if convinced it was
wrongly decided. When overruling a prior decision, the agency
must provide a reasoned analysis that explains why the change is
being made. Moreover, it may not act in an arbitrary,
unreasonable, or discriminatory fashion. In this case, as the
superior court noted, both the hearing officers decision and the
CFECs Final Decision demonstrate that Leask was being
deliberately overruled and not simply casually ignored.
May cites to our explanation of law of the case in
State, Commercial Fisheries Commission v. Carlson57 for a
definition of the standards for stare decisis. However, law of
the case is distinct from stare decisis because law of the case
refers specifically to the binding effect of a prior holding in a
former appeal of a case,58 whereas stare decisis refers to the
doctrine of precedent deriving from earlier judicial decisions.59
For this reason, Mays use of law of the case is inapposite here.
We conclude that the CFEC decision to overturn Leask
satisfies the criteria necessary to overcome an agencys
obligations under stare decisis.
4. The different treatment of May and Leask does not
violate Mays right to equal protection.
May argues that his right to equal protection60 is
violated by the CFEC Final Decision because he is not being
treated in the same manner as the applicant in Leask. Mays claim
fails because he has not shown intentional discrimination. We
have held that [w]hen faced with a claim of unequal enforcement
of civil laws, we think it appropriate that the claimant . . .
[show] an element of intentional or purposeful discrimination. 61
May never even alleges an element of intentional or
purposeful discrimination. The closest he comes is simply
labeling the difference in treatment discrimination. But the
superior court held that the record did not reflect that the
hearing officer or the CFEC intended to discriminate against May.
And contrary to Mays argument that the cases were handled
differently for no good reason, both the hearing officer and the
CFEC gave clear reasons why Mays case was handled differently
from Leasks.
Because of the absence of any allegations of
intentional or purposeful discrimination, and because sufficient
reasons showed why Mays case was resolved differently then Leasks
case, Mays equal protection claim fails.
5. The different treatment of May and Leask does not
violate Mays right to be free from unjust
discrimination.
May presents the argument that he suffered from unjust
discrimination in violation of AS 16.43.010(a)62 in one paragraph
of a forty-three page brief, and we therefore consider it waived.63
Moreover, Mays allegation that the commission has said nothing to
justify its discrimination between Mr. May and Mr. Leask is
plainly false. In fact, the commission admitted to a mistake in
Leask and adequately explained its rationale for its reversal.
May has not been discriminated against; he is being treated
similarly to all other persons properly denied limited entry
permits for which they are not eligible.
6. The CFEC did not violate Mays due process rights.
May alleges that the CFEC violated his right to due
process.64 To the extent that Mays due process complaint is about
the merits of his fishery claim and the differential treatment,
we addressed the merits of the decision above and have determined
that the agency decision was not arbitrary, unreasonable, or an
abuse of discretion.
Mays remaining due process complaints are procedural.
He argues that due process was violated in 1985 when the
adjudication staff found him ineligible to apply for a permit
following a remand notice from the CFEC. May treats the remand
as an order and suggests that the adjudication staff exceeded its
authority when it continued to research the eligibility
implications of fishing in AIR waters. May expounds upon this in
his reply brief, calling the remand from the CFEC to its
adjudication section a final decision whose reversal twenty years
later was patently prejudicial. In point of fact, May was
notified only three months after the remand that the adjudication
section was again denying his claim. The denial was based on the
same grounds ineligibility upon which his claim was denied in
1977; that denial was subsequently affirmed by the hearing
officers decision, the CFECs Final Decision, and the superior
court. Moreover, a reading of the remand notice makes it
abundantly clear that Mays eligibility to apply for a permit had
not been decided. The first two sentences read:
We remand this application to the
adjudication section for a determination as
to Mr. Mays eligibility to apply for his
Southeastern herring purse seine entry
permit. If the determination is negative,
Mr. May should be notified and given an
opportunity for a hearing.
The remand notice likewise concludes, we would appreciate
adjudication staff examining this file, making a determination of
Mr. Mays eligibility with appropriate notice to the applicant.
While the CFEC did explain in its remand that it appears to us
that Mr. May has made a prima facie case for his eligibility, it
also said in the very next sentence [a]t the same time, we would
like the adjudication staff to look critically at Mr. Mays claim,
in case the commission has overlooked some aspect of this record.
Reading the remand as a whole, we find Mays claim of a resulting
due process violation to be entirely without merit.
May also claims due process violations with regard to
the four points that the hearing officer denied which the CFECs
Final Decision later chose to award to him. Mays complaints with
regard to these points are moot because the award of those points
is not on appeal here.65
Finally, May makes roundabout complaints pertaining to
the length of the delay in this case. Only one sentence,
unsupported by any citation to case law, speaks to the issue
directly: On the other hand, the nearly twenty years it took for
the agency to finally announce its decision on this issue should
be considered unreasonable and an abuse of discretion per se.
This briefing is so inadequate that we find this argument waived.
Moreover, even if the argument was not waived, Mays
claim fails under our holding in Brandal v. State, Commercial
Fisheries Entry Commission.66 In Brandal we held that a twenty-
two year delay in a CFEC decision did not violate the applicants
due process rights.67 After noting that during the years in which
the case was pending Brandal received an interim permit allowing
him to participate in the fishery, we stated:
[W]e have never held that delay alone, with
no accompanying prejudice, constitutes a
violation of the right to due process. The
facts of the present case do not justify such
a holding. The CFECs handling of this case
was inexcusable, and Brandal may experience
significant harm, but the CFECs delay is not
the reason for Brandals difficulties.
Contrary to Brandals claim that [t]he delay
caused him to become almost entirely
economically dependent on the fishery and
lulled him into not learning another
occupation, Brandal had ample notice that the
CFEC was likely to reject his claim. In 1978
and 1982 hearing officers found that he
lacked sufficient points to qualify for a
permit. . . . Brandal elected not to learn
another occupation in spite of having
received notice that he was unlikely to be
awarded a permit. Because the CFECs delay did
not prejudice Brandal, we hold that the delay
did not constitute a violation of Brandals
right to due process.[68]
Mays situation is very similar to Brandal in that he
also received interim-use permits resulting in the same windfall
of twenty years of access to a fishery in which he was not
entitled to fish. This fact mitigated any prejudice that the
otherwise unreasonable delay may have had on May. Moreover, May
does not articulate any theory of reliance or prejudice. While
May argues that he might have relied on Leask once he found out
about it, he separately acknowledges that Leask was first
addressed in the record in the hearing officers decision in 2002.
The fact that May cannot now continue to utilize a permit to
which he was never entitled is not a violation of due process.
B. The Superior Court Did Not Abuse Its Discretion in Its
Award of Partial Attorneys Fees to the CFEC.
May asks that we reverse the superior courts award of
partial attorneys fees. Alaska Appellate Rule 508(e) governs the
superior courts application of attorneys fees in this case and
provides in part that [a]ttorneys fees may be allowed in an
amount to be determined by the court. The superior court looked
to Alaska Civil Rule 82 as a guideline for calculating reasonable
partial attorneys fees, a practice which we have previously
approved.69 Rule 82(b)(2) provides that in cases which are
resolved without trial and in which the prevailing party receives
no money judgment, twenty percent of actual attorneys fees
necessarily incurred is the appropriate award. Rule 82 also
allows the court to vary the fee depending on a number of factors
including vexatious or bad faith conduct.70
The superior court here determined that a twenty
percent fee was reasonable. The court also noted that equities
favored giving an award because May received a windfall in this
case in that he was allowed to participate in the fishery while
his case was on appeal. The state, on the other hand, litigated
for years despite prevailing at every stage on the issues now on
appeal, and it did not receive a money judgment.
Mays argument for overturning the twenty percent award
appears to be an equitable one that his right to be treated the
same as the next guy was an important right worth fighting for
and that his ability to participate in the fishery for all the
years while the case was pending did not represent a windfall
because fishing was Mays way of life and involved hard work.
Moreover, May argues that as soon as he found out about Leask he
had the right to rely on the decision and expect the CFEC to
apply it. Nothing in Mays argument shows that the award was
manifestly unreasonable as it would have to be for this court to
reverse.71 Moreover, Mays argument that he litigated in good
faith is immaterial because the twenty percent award does not
rely on a lack of good faith. We hold that the superior courts
award was not an abuse of discretion.
V. CONCLUSION
The regulations, by their terms, require applicants to
demonstrate past participation in the specifically designated
area of the specific Southeast herring purse seine fishery. May
never claimed to have participated in that area. The fact that
the CFEC erroneously awarded a permit to another individual who
did not participate does not require that the CFEC repeat its
error in Mays case. We AFFIRM the CFEC Final Decision that May
was ineligible to apply for a permit and AFFIRM the superior
courts award of attorneys fees.
_______________________________
1 AS 16.43.010-.990 (1973).
2 AS 16.43.010(a).
3 The regulations identify the fishery under the
subheading Herring fisheries and labeled it Specific Southeastern
Alaska Area (A-1) purse seine fishery. 20 AAC 05.310(a), am.
2/25/77, Register 61. Variations on the fisherys name
proliferate, most omitting the word specific and adding the words
sac roe or roe because that was the type of herring fishing that
the CFEC was attempting to limit.
4 Memorandum from Judy Brakel, Fisheries Coordinator,
CFEC, History of CFEC Regulatory Changes Affecting Southeast and
Prince William Sound Herring Administrative Areas (April 24,
1985).
5 20 AAC 05.320 (1977), am. 2/25/77, Register 61.
6 Id.
7 The CFEC awards the point to applicants who, based on
their domicile, have fewer alternative occupations available to
them. 20 AAC 05.620(3)(1977).
8 20 AAC 05.662 (1977). Under the regulations a total of
nine points could be awarded in area A-1: two points for past
participation in 1976, two points for past participation in 1975,
one point for past participation in 1974, three points for
investment in vessel and gear (one point for owning a purse seine
vessel, two points for owning a herring purse seine), and one
point if the alternative occupations in the location of the
applicants domicile are lacking, as determined by population. 20
AAC 05.664(a)(1), (b)(1)-(2)(1977).
9 AS 16.43.260. Eligibility to apply is governed by
statute and not the regulations, leading to apparent confusion
within the CFEC in the early years of this case.
10 See 20 AAC 05.666(1), am. 2/25/77, Register 61.
11 Annette Island Reserve is sometimes incorrectly
referred to as the Metlakatla Indian Reservation in CFEC
documents.
12 Nothing in the record justifies the long periods of
delay and dormancy that occurred, though it appears that the CFEC
allowed May to pursue his case even though it may have been time-
barred. The due process consequences of the delay are discussed
below in Part IV.A.6.
13 CFEC 75-421 (1982).
14 In 1974 North Behm Canal was a fishery in Southeast
that was not defined as part of area A-1 but was instead a
regulated fishery designated as (1)(E). May did not address on
appeal what relevance his fishing in Behm Canal has on his
eligibility to apply for an A-1 fishery permit.
15 CFEC 75-422 (1985).
16 Id.
17 CFEC 75-421 (1982).
18 These points are not on appeal now.
19 Brandal v. State, Commercial Fisheries Entry Commn, 128
P.3d 732, 735 (Alaska 2006).
20 Id.
21 AU Intl, Inc. v. State, Dept. of Natural Res., 971 P.2d
1034, 1040 (Alaska 1999).
22 State v. United Cook Inlet Drift Assn, 895 P.2d 947,
950 (Alaska 1995).
23 N. Slope Borough v. LeResche, 581 P.2d 1112, 1115
(Alaska 1978).
24 Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970).
25 The reference to harvesting is more stringent than the
requirement for participation points defined in 20 AAC 05.664
(1977), which awards points for the herring fisheries when
individuals are present on the fishing grounds with the
appropriate vessel, gear, licenses, and interim-use permit with
the intention of taking the herring resource during the time the
season was open and the herring resource was harvested. In
contrast, harvesting requires obtaining physical control [of the
herring resource] for the purposes of commercial disposition.
Estate of Lewis v. State, CFEC, 892 P.2d 175, 181 (Alaska 1995).
26 AS 16.43.990(4), formerly AS 16.43.380(3).
27 AS 16.43.990(5), formerly AS 16.43.380(4) defines gear
as the specific apparatus used in the commercial harvest of a
species, including but not limited to purse seines, drift gill
nets, set gill nets, and troll gear.
28 20 AAC 05.230(a)(3)(B), am. 2/25/77, Register 61.
29 In 1974 May also lacked the required license and
interim use permit, and did not successfully harvest any fish.
30 CFEC 75-422 (1985).
31 CFEC 75-421 (1982).
32 Id.
33 20 AAC 05.668 (1978).
34 Area A included all waters between the longitude of
Cape Fairweather and the International Boundary at Dixon
Entrance. 20 AAC 05.230(a)(1)(A) (1978). The Annette Island
Reserve lies south of Cape Fairweather and north of the boundary
at Dixon entrance.
35 20 AAC 05.668(5) (1978). As noted above, the CFEC
sometimes referred to Annette Island Reserve as Metlakatla Indian
Reservation.
36 Clement had also sought credit for AIR water fishing
for 1976 and 1977. CFEC 75-421 (1982).
37 Leask, CFEC 75-422 (1985).
38 As previously discussed, eligibility requirements to
apply for a permit in the roe herring purse seine fishery are
more stringent than the requirements for award of past
participation points. Lewis v. State, Commercial Fisheries Entry
Commn, 892 P.2d 175, 180-81 (Alaska 1995).
39 Brandal v. State, Commercial Fisheries Entry Commn, 128
P.3d 732, 735 (Alaska 2006).
40 May largely ignores the merits of the Leask decision.
May does note that during the year Leask was decided, the
definition of A-1 was not included in the regulations although
the designation of A-1 was still used. May suggests that the
absence of the definition of A-1 in the regulations may have been
the most likely explanation for the Leask decision. This
explanation does not support upholding Leask as binding law,
however, because it would be a further indication that Leask was
decided erroneously on the basis of a clerical error or lack of
proper research by the CFEC at the time that it issued the
decision. May argues that because the CFEC did not overturn Leask
on the explicit basis of an error regarding the regulatory
history, this court should presume that the CFEC knew what it was
doing in Leask and for that reason Leask should be upheld. May
does not attempt to justify Leask on the merits; rather, he
urges us to uphold Leask based on secondary considerations.
41 Silides v. Thomas, 559 P.2d 80, 89 (Alaska 1977)
(quoting Sirbo Holdings, Inc. v. Commr, 509 F.2d 1220, 1222 (2d
Cir. 1975)).
42 895 P.2d 947 (Alaska 1995).
43 Id. at 950-51 (citing Murray v. Feight, 741 P.2d 1148,
1153 (Alaska 1987)).
44 Id. at 952.
45 Id. (quoting Restatement (Second) of Judgments 29(7)
(1982)).
46 Id. at 953-54 (quoting Montana v. United States, 440
U.S. 147, 162 (1979)).
47 Id. at 948.
48 McQuerry v. U.S. Parole Commn, 961 F.2d 842, 846 (9th
Cir. 1992) (parole commission not estopped from reopening case
and revoking street time credit where commissions practice of
giving credit had been based on a mistake of law); Amarillo
Prod. Credit Assn v. Farm Credit Admin., 887 F.2d 507, 512-13
(5th Cir. 1989) (Farm Credit Administration cannot be estopped
from acting in accordance with the law and in light of
reconsideration of the relevant facts and its mandate . . . may
alter its past interpretation ); N.L.R.B. v. T.W. Phillips Gas &
Oil Co., 141 F.2d 304, 305-06 (3d Cir. 1944) (doctrine of
estoppel may not be invoked against the Board so long as it is
acting in its administrative or judicial capacity).
49 Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of
Trade, 412 U.S. 800, 808 (1973).
50 Michigan v. Thomas, 805 F.2d 176, 184 (6th Cir. 1986).
51 346 F.3d 1121 (D.C. Cir. 2003).
52 Id. at 1124 (quotations omitted).
53 See, e.g., Brandal v. State, CFEC, 128 P.3d 732, 735
(Alaska 2006).
54 State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (internal quotation omitted).
55 See Chocknok v. State, Commercial Fisheries Entry
Commn, 696 P.2d 669, 676 n.10 (Alaska 1985) (holding that CFEC
has discretionary power to correct a policy through adjudicatory
determinations).
56 See, e.g., Am. Trucking Assn., Inc. v. Atchinson,
Topeka & Santa Fe Ry. Co., 387 U.S. 397, 416 (1967) ([Regulatory
agencies] are neither required nor supposed to regulate the
present and the future within the inflexible limits of
yesterday.).
57 65 P.3d at 859.
58 Blacks Law Dictionary 903 (8th ed. 2004) (emphasis
added).
59 State v. Semancik, 99 P.3d 538, 540 (Alaska 2004).
60 May also discusses, without citation, equal access,
which may refer to the Uniform Application Clause of Article VIII
17 of the Alaska Constitution. However, he never makes any
argument using either equal access or uniform application and
thus we do not address the points here. See Great Divide Ins.
Co. v. Carpenter ex rel. Reed, 79 P.3d 599, 608 (Alaska 2003)
(noting that where party fails to adequately brief issue, it will
be considered waived).
61 Silides v. Thomas, 559 P.2d 80, 88-89 (Alaska 1977)
(quoting Snowden v. Hughes, 321 U.S. 1, 8 (1944)).
62 Under AS 16.43.010(a) the CFEC is to control the entry
of participants and vessels into the commercial fisheries in the
public interest and without unjust discrimination.
63 Carpenter, 79 P.3d at 608 n.10 (Points that are
inadequately briefed are considered waived.).
64 Article I, section 7 of the Alaska Constitution
provides, in part: No person shall be deprived of life, liberty,
or property, without due process of law. The Fourteenth Amendment
to the United States Constitution provides, in part: No State
shall . . . deprive any person of life, liberty, or property,
without due process of law. U.S. Const. amend. XIV, 1.
65 Fairbanks Fire Fighters Assn, Local 1324 v. City of
Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002) (holding appeal moot
where relief had already been received).
66 128 P.3d 732 (Alaska 2006).
67 Id. at 739-41.
68 Id. at 740 (footnote omitted).
69 See Stalnaker v. Williams, 960 P.2d 590, 597 (Alaska
1998) (noting Civil Rule 82 guidelines offer one way to reach a
reasonable award).
70 Alaska R. Civ. P. 82(b)(3).
71 Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970).
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