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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

May v. State, Commercial Fisheries Entry Commission (10/12/2007) sp-6173, 168 P3d 873

     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,


) Supreme Court No. S- 12267
Appellant, )
) Superior Court No.
v. ) 1KE-04-00582 CI
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.

          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.
          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
          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.
          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
          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
          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

          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
          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
          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
(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
          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.
          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,

     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

     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

     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)

     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

     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

     57    65 P.3d at 859.

     58     Blacks  Law  Dictionary 903 (8th ed. 2004)  (emphasis

     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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