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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilber v. State, Commercial Fisheries Entry Commission (06/27/2008) sp-6278
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
| GLENN A. WILBER, | ) |
| ) Supreme Court No. S- 12420 | |
| Appellant, | ) |
| ) Superior Court No. 1SI-05-00087 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| COMMERCIAL FISHERIES | ) No. 6278 June 27, 2008 |
| ENTRY COMMISSION, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Sitka,
Larry C. Zervos, Judge.
Appearances: Michael A. D. Stanley, Juneau,
for Appellant. Thomas E. Lenhart, Assistant
Attorney General, and Talis J. Colberg,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
FABE, Chief Justice.
MATTHEWS, Justice, concurring.
I. INTRODUCTION
Glenn Wilber challenges the Commercial Fisheries Entry
Commissions (CFECs) limited entry regulations for the Southeast
Alaska Geoduck1 Fishery. Wilber received a nontransferable
permit for the fishery but he desires a transferable permit.
Wilber maintains that CFEC regulations measuring past
participation in the geoduck fishery, and particularly the
agencys combination of two seasons into one year for the purposes
of assessing hardship, fall outside of the scope of the agencys
authority under the Limited Entry Acts initial permit issue
provisions. Because the CFEC regulations reasonably respond to
the unusual circumstances of a mid-year moratorium on geoduck
harvesting, and in light of the broad discretion afforded CFEC
under the Limited Entry Act for determining hardship, we affirm
the agencys decision to deny Wilber a transferable permit.
II. FACTS AND PROCEEDINGS
Geoducks were first commercially harvested in Southeast
Alaska in the early 1970s. The fishery remained small throughout
the 1970s, but grew significantly throughout the 1980s, to the
point that in 1990 participants petitioned the CFEC to limit
entry into the fishery. CFEC denied this petition, and three
others that followed in 1993, 1996, and 1998. Though it denied
each petition, CFEC undertook an analysis of the fishery to
determine whether entry should be limited.
Currently, the season for geoduck runs from October 1
to May 31. The Alaska Department of Fish and Game manages the
fishery by opening different locations at different times
throughout the season.
In 1996 the Alaska Legislature passed House Bill 547;2
the bill imposed a four-year moratorium on entry into the geoduck
and other Southeast Alaska dive fisheries.3 The moratorium took
effect July 1, 1996, and reached the expiration date set by the
legislature on July 1, 2000.4 The bill directed CFEC to study
whether it was necessary to limit entry into the geoduck fishery
under the Limited Entry Act (AS 16.43.01016.43.990).5 The bill
largely prohibited new divers from entering the fishery and
allowed past participants to keep harvesting geoduck under an
interim use permit system.6 The bill also directed that
participation during the moratorium could not be considered as
evidence of past participation in any limited entry system
following the moratorium.7
In 1998 and 1999 CFEC held a series of meetings in
Southeast Alaska to solicit public comment about whether to limit
entry into the geoduck fishery and possible ways to limit entry
if necessary. In November 1999 CFEC adopted regulations for
limiting entry into the geoduck fishery.8 The regulations took
effect on the last day of the moratorium, June 30, 2000.9 The
regulations established an eligibility period of January 1, 1992
to July 1, 1996. CFEC set the maximum number of permits for the
geoduck fishery at 104.10
After limiting entry into the fishery, CFEC proposed
regulations to establish a priority classification system for
distributing the 104 permits in September 2000. The system
awarded points based on the following scale:
Year Pounds / Year Points
1995 to July 1, 1996 400 pounds or more 10
At least 100 pounds, 7
but less than 400
pounds 3
Less than 100 pounds
1994 800 pounds or more 9
At least 400 pounds, 6
but less than 800
pounds 3
Less than 400 pounds
1993 2,700 pounds or more 8
At least 1,200 5
pounds, but less
than 2,700 pounds 3
Less than 1,200
pounds
1992 5,200 pounds or more 7
At least 2,200 5
pounds, but less
than 5,200 pounds 2
Less than 2,200
pounds
CFEC took public comment on the regulations from September
through October. All divers with a history of participating in
the fishery were given notice of the point system. CFEC received
comments from approximately forty divers, including Wilber.
Neither Wilber nor any other diver objected to combining the 1995
and 1996 years catch totals.
CFECs point system awarded points for participation in
the calendar years of 1992, 1993, 1994, and 1995 combined with
the first half of 1996.11 The system awarded more points for
participation in recent years. CFECs system awarded a maximum of
twenty-four points.12 CFECs point system did not evaluate past
participation and economic dependence separately as CFEC
considered the factors to be linked in the geoduck fishery. CFEC
reasoned that [y]early harvest totals . . . provide the best
information regarding participation and economic dependence.
CFEC combined 1995 with the first half of 1996 because
the majority of geoduck landed in 1996 were caught after the
start of the moratorium13 and thus could not be considered in
CFECs point system. Additionally, CFEC believed that the small
number of geoduck caught in the beginning of 1996 made it more
reasonable to combine that year with 1995. There was only a
brief four-day opening of the fishery in January 1996 in Symonds
Bay resulting in a harvest of 9,708 pounds of geoduck by nineteen
divers. In comparison, 104 divers harvested approximately
250,000 pounds in 1995, and after the moratorium began, some 93
divers harvested over 190,000 pounds in the remainder of 1996.
CFEC adopted its proposed point system on November 7,
2000. It also promulgated regulations establishing significant
and minor hardship levels as required by AS 16.43.250(b)(c).14
CFEC set the significant hardship level at nineteen to twenty-
four points.15 CFEC set the minor hardship level at zero to ten
points.16 Applicants classified at the significant hardship level
automatically received transferable permits while those below the
minor hardship level threshold received nontransferable permits.
Those applicants receiving between eleven and eighteen points
were formally unclassified but nevertheless received transferable
permits.
Wilber began harvesting geoduck in 1974. However,
Wilber did not participate during the limited entry eligibility
period until 1995. Wilber harvested 1,849 pounds during a
January 1995 opening, 1,842 pounds during an October 1995
opening, and 1,433 pounds during a January 1996 opening. Wilber
applied for a limited entry permit for the geoduck fishery in
March 2001. Wilber claimed ten points, the maximum possible
points given that he only participated in the fishery in 1995 and
1996 and prior to 1992. CFEC classified Wilbers application at
ten points, leaving Wilber one point short of the regulatory
threshold for receiving a transferable permit.
Wilber requested a hearing on his application on May 6,
2001. A CFEC hearing officer denied Wilbers request, concluding
that it did not raise any issues requiring a hearing. The
officer treated Wilbers request as a constitutional challenge to
the geoduck limited entry regulations and issued a written
decision finding the regulations constitutional. The officer
affirmed CFECs classification of ten points.
Wilber hired an attorney after his request for a
hearing was denied, and he timely petitioned for administrative
review of the hearing officers decision. Wilbers petition sought
the commissioners review of the geoduck fishery limited entry
regulations, arguing that 20 AAC 05.808 exceeded CFECs statutory
authority under AS 16.43.250(a)(2).17 Wilber also argued that the
regulations violated the Alaska Constitutions guarantee of equal
protection. Wilber asked that the system be revised to fairly
weight 1996 participation, asserting that when this was done he
would qualify for sufficient points for a freely transferable
permit.
The commissioners denied Wilbers petition. The
commissioners decision noted that Wilbers narrow interpretation
of AS 16.43.250(a)(2) did not account for the provisions use of
the phrase when reasonable for the fishery. The commissioners
saw the agencys use of an eighteen-month period as a pragmatic
solution to the legislatures imposition of a moratorium in the
middle of a calendar year. They reasoned that using an eighteen-
month period made sense in light of th[e] statutory mid-year cut-
off, very short January season, low participation, and small
poundage. The Commission noted that none of the divers
commenting on the proposed and final regulations including
Wilber had objected to this time period. The Commission thus
held that its regulations did not violate the Alaska
Constitutions equal protection clause.
The Commission pointed out that, even if Wilber had a
valid criticism of the CFEC regulation, he failed to offer an
alternative point scheme that would result in him getting his
desired relief of a transferable permit. The Commission also
noted that changing the regulations as proposed by Wilber would
necessitate adjusting all of the existing applications; this
could leave Wilber with the nontransferable permit he started
with. The Commission explained that the agency had considered
using seasons as suggested by Wilber in his appeal, but had
rejected that alternative in a desire to satisfy the legislatures
preference for measuring eligibility by calendar years as
expressed in the dive fishery moratorium legislation and AS
16.43.250. The Commission concluded that changing the point
system at such a late stage in the process would be detrimental
because it would require recalculation of numerous completed
applications very near the end of the permit process.
Wilber appealed the Commission decision to the superior
court. The superior court determined that the phrase when
reasonable for the fishery in AS 16.43.250(a) recognizes that
CFEC has a detailed knowledge about the biology, the history, the
politics, the mechanics, and probably several aspects of the
fishery. The superior court also ruled that weighing the
hardship factors requires CFEC to make fundamental policy
choices. The superior court concluded that, given agency
expertise and fundamental policy concerns driving the regulation,
Wilber failed to demonstrate that CFECs regulation lacked a
reasonable basis in the law. The superior court therefore denied
Wilbers appeal and affirmed the Commissions decision on July 25,
2006.
Wilber appeals.
III. STANDARD OF REVIEW
We review an agencys regulation for whether it is
consistent with and reasonably necessary to implement the
statutes authorizing [its] adoption.18 Toward this end we
consider: (1) whether CFEC exceeded its statutory authority in
promulgating the regulation; (2) whether the regulation is
reasonable and not arbitrary; and (3) whether the regulation
conflicts with other statutes or constitutional provisions.19
When the interpretation of a statute or other question of law
implicates agency expertise as to complex matters or as to the
formulation of fundamental policy, we defer to the agencys
interpretation so long as it has a reasonable basis in the law.20
We have held that CFECs implementation of the hardship provisions
of the Limited Entry Act entails both administrative expertise
and the formulation of fundamental policy.21
IV. DISCUSSION
Wilber argues that AS 16.43.250(a)(2) requires CFEC to
employ a calendar year of 365 days when it defines priority
classifications for limiting entry into Alaska fisheries.
Alternatively, Wilber argues that even if CFEC can adopt an
eighteen-month qualification period, the 1995-1996 participation
period that it adopted for the geoduck fishery is arbitrary and
unreasonable because it collapses two seasons into a single
qualification period and gives insufficient consideration to the
most recent participants in the fishery. We disagree.
A. CFEC Acted Within Its Statutory Authority when It
Combined the Pre-Moratorium 1996 Geoduck Fishery
Opening and the 1995 Calendar Year.
Wilbers central argument in this case is that the
legislatures use of the term year in AS 16.43.250 limits CFEC to
measuring past participation in twelve-month increments. Wilber
argues that the meaning of the term year is plain, and that CFEC
has failed to offer any evidence of legislative intent or
judicial construction that would permit departing from that plain
meaning. Wilber argues that CFECs authority to choose among the
AS 16.43.250 hardship factors does not include the authority to
modify those factors. Finally, Wilber argues that CFECs
interpretation of year in this case is contrary to its other
regulations and normal practice.
CFEC maintains that year is subject to different
interpretations, many of which exceed 365 days. CFEC argues that
it also has broad discretion to assess hardship as required by AS
16.43.250, and that its decision in this case falls well within
that discretion. CFEC contends specifically that the
legislatures amendment of AS 16.43.250(a) in 1985 to use the term
when reasonable for the fishery, gave it discretion to craft
point systems tailored to the peculiarities of a particular
fishery.
The superior court held that CFECs approach was
reasonable, in part because the statute affords CFEC broad
discretion to account for peculiarities of a fishery. The
superior court noted that the regulation gave Wilber credit for
his past participation in the fishery, consistent with the
statutes purpose, and that nothing about CFECs approach,
including its treatment of the 1995 and 1996 harvests, placed the
agencys rule outside of its discretionary authority. We agree
with the superior court.
The Limited Entry Acts purpose is to promote the
conservation and the sustained yield management of Alaskas
fishery resource and the economic health and stability of
commercial fishing in Alaska by regulating and controlling entry
. . . into the commercial fisheries in the public interest and
without unjust discrimination.22 We have held that avoiding
unjust discrimination requires ranking applicants for the limited
number of permits according to the degree of hardship which [the
fisherman] would suffer by exclusion from the fishery. 23 The
specific moratorium legislation in this case also required that
the point system be weighted towards recent participants.24
These broad purposes are well served by 20 AAC 05.808.
CFEC took into account the amount of geoduck caught by divers
each year, came up with a ranking system that compared each
divers catch, and awarded more points for those divers who had
caught more geoduck in the most recent years preceding the
moratorium. Wilber advances a narrow interpretation of the
statutory term year, and asserts that the terms meaning
constrains CFECs authority to assess hardship based on past
participation. We are not convinced that the legislature
intended to tether CFECs authority in this manner.
CFECs regulation in this case considers both factors by
looking at how much geoduck a given diver caught during four
different periods: 1992, 1993, 1994, and 1995 to July 1, 1996.
The last, anomalous category simply measures participation during
the 1995 season for all but the nineteen divers who participated
in the four-day opening of the fishery in Symonds Bay prior to
the 1996 mid-season moratorium. CFEC hence considers a divers
history over a number of years, and it considers the divers
history during each of those years. The regulation gives more
points to divers who fished more years, more recently prior to
the moratorium, and caught more geoduck. It gives fewer points
to divers who fished fewer years, less recently, and caught less
geoduck. The regulation thus presents a reasonable,
straightforward means of evaluating the economic hardship that
would befall individuals excluded from the fishery, consistent
with the Limited Entry Acts mandate.25
The conclusion we draw from our analysis of the text is
reinforced by the broad discretion afforded CFEC to craft point
systems for measuring hardship. The legislature confirmed this
grant of discretion by amending AS 16.43.250 in 1985, following
our decision in Rutter v. State, Commercial Fisheries Entry
Commission.26
In Rutter, we considered former AS 16.43.250(a), which
provided that CFEC was to consider certain enumerated factors in
assessing an applicants degree of economic dependence on and
past participation in a fishery.27 We interpreted subsection
.250(a) as requiring that CFEC consider all of the statutory
factors, and invalidated a CFEC regulation that failed to do so.28
The legislature responded by amending the statute in 1985 to
replace the phrase preceding the enumerated factors including
but not limited to with the phrase when reasonable for the
fishery.29 The letter of intent accompanying the amending
legislation stated that the legislatures intent was to allow CFEC
to disregard one or more particular hardship standards when
ranking applicants if the standards were unreasonable in light of
the particular fishery.30 The letter further stated: The
legislature recognizes that patterns of participation and extent
of economic dependence vary from fishery to fishery and intended
that, in developing point systems for limited fisheries, [CFEC]
should exercise some discretion in how to measure past
participation and economic dependence.31
We revisited our decision in Rutter in a separate case
not long after the legislature passed its amendment. In Haynes
v. State, Commercial Fisheries Entry Commission,32 we recognized
that the amendment clearly grants discretion to the CFEC to award
points for economic dependence based on less than all four
indicia, effectively overruling Rutter.33 Wilber points out that
the Haynes decision does not give CFEC carte blanche to modify
factors under AS 16.43.250 once it has decided to consider them.
But this was not the kind of prerogative exercised by CFEC below,
nor is it the kind of authority that CFEC argues for on appeal.
As CFEC notes, its approach can only be considered a modification
if one accepts Wilbers narrow interpretation of AS 16.43.250. We
decline to adopt that interpretation, however, because CFEC
responded reasonably to the legislatures mid-year moratorium, a
situation not expressly contemplated by the statute. This falls
well within the discretion envisioned by the legislature in its
1985 amendments to AS 16.43.250, as it enables CFEC to tailor its
point system to a unique circumstance of the geoduck fishery.34
As we have already noted, determining the hardship an
individual would suffer from exclusion from a fishery requires
both administrative expertise and the formulation of fundamental
policy.35 Not only did CFEC have the broad discretion to create a
geoduck fishery point system, it needed to use this discretion
because the legislatures imposition of a moratorium in the middle
of a year was unusual. Though Wilber notes that CFEC has not
combined calendar years in other point systems, he fails to cite
examples where the legislature has imposed the type of mid-year
moratorium that occurred here. The other point systems created
by CFEC in response to the legislatures dive fishery moratorium
were also necessarily unusual.36 In light of the unusual
circumstances presented to it, CFEC created a valid point system
for measuring hardship in the geoduck fishery, and acted well
within its broad discretion under the Limited Entry Act.
V. CONCLUSION
For the reasons detailed above, we AFFIRM the decision
of the CFEC.
MATTHEWS, Justice, concurring.
This concurring opinion concerns an issue that has not
been properly raised and therefore is waived. I write separately
because the issue may be important when other winter fisheries
are made subject to limited entry.
Geoduck fishing seasons run from October through May.1
But the CFEC measures past participation on a calendar rather
than a seasonal year. This measurement can seriously distort the
extent of a fishermans past participation. A fisherman who has
harvested geoduck for two seasons may have done so in one
calendar year. Likewise, a fisherman who has participated in
only one season may have done so in two calendar years. Since
the objective mandated by statute is to measure the extent of a
fishermans past participation,2 it seems apparent that something
is wrong with a system that awards a one-season fisherman more
points than a two-season fisherman.
But that is what has happened to Wilber. He fished in
two seasons, 1994-95 and 1995-96. His 1994-95 season
participation occurred in January 1995 when he harvested 1,849
pounds in Symonds Bay. In the 1995-96 season, he fished in two
openings, one in October near Craig where he harvested 1,842
pounds, and one in January in Symonds Bay where he harvested
1,433 pounds. Looking at the top tier harvest thresholds
established by the regulation,3 it is evident that Wilber is an
industrious and effective fisherman. Yet Wilber received credit
under the regulation for only one year of participation and
received only ten points. By contrast, a fisherman who
participated in only one season, that of 1994-95, landing say
1,000 pounds in October 1994 and 500 pounds in January 1995,
would receive nineteen points and be eligible to receive a
transferrable permit.
Under Alaska law, courts may review regulations to
determine whether they are reasonable and not arbitrary.4
Successful challenges under this standard are usually process
oriented. That is, courts find that the entity promulgating the
regulation failed to consider some important factor. However,
sometimes enactments are simply so unfair or so remotely related
to reasonable objectives that they must be considered arbitrary
and unreasonable on substantive grounds.5
I think a convincing case might be made that the
regulation in question is arbitrary and unreasonable because it
measures past participation on an annual rather than a seasonal
basis. But this argument was not raised in the superior court
and at best is only alluded to by Wilber in his briefs before
this court. The issue therefore is waived.6 As to the arguments
that are properly before this court, I agree with the opinion of
the court.
_______________________________
1 The Pacific geoduck clam (Panopea abrupta) is the
largest intertidal clam in the world, weighing up to ten pounds,
and reaching life spans of up to 163 years. See J.M. Lobo
Orensanz, et al., Precaution in the Harvest of Methuselahs Clams
the Difficulty of Getting Timely Feedback from Slow-paced
Dynamics, 61 Can. J. Fish. Aquat. Sci. 1355 (2004). Geoducks
have slow growth rates, taking five to seven years to reach
harvestable size. The ecology of the geoduck is only dimly
understood, and sampling estimates tend to vary widely due to
their broad geographic distribution and the difficulty in
identifying subtidal geoduck habitats. See Christopher Siddon,
Evaluation of the Southeastern Alaska Geoduck (Panopea Abrupta)
Stock Assessment Methodologies, Alaska Department of Fish and
Game, Special Publication No. 07-02, March 2007, available at
http://www.sf.adfg.state.ak.us/FedAidPDFs/sp07-02.pdf.
2 House Bill (H.B.) 547, 19th Leg., 2d Sess. (1996).
3 Ch. 125, 2, SLA 1996.
4 Id. 4-5.
5 Id. 2.
6 Id.
7 Id.
8 20 Alaska Administrative Code (AAC) 05.806-09 (1999).
9 See id.; ch. 125, 4, SLA 1996.
10 20 AAC 05.320(i).
11 See 20 AAC 05.808.
12 20 AAC 05.808(a). There are actually thirty-four
possible points available, but CFECs hardship scale will only
award a maximum of 24 points. Id.
13 See AS 16.43.228(g).
14 AS 16.43.250(b)(c) provides:
(b) The commission shall designate in
the regulations those priority
classifications of applicants who would
suffer significant economic hardship by
exclusion from the fishery.
(c) The commission shall designate in
the regulations those priority
classifications of applicants who would
suffer only minor economic hardship by
exclusion from the fishery.
15 20 AAC 05.809(a).
16 20 AAC 05.809(b).
17 AS 16.43.250 provides in relevant part:
(a) Following the establishment of the
maximum number of units of gear for a
particular fishery under AS 16.43.240, the
commission shall adopt regulations
establishing qualifications for ranking
applicants for entry permits according to the
degree of hardship which they would suffer by
exclusion from the fishery. The regulations
shall define priority classifications of
similarly situated applicants based upon a
reasonable balance of the following hardship
standards:
(1) [economic dependence];
(2) extent of past participation
in the fishery, including, when
reasonable for the fishery, the number
of years of participation in the
fishery, and the consistency of
participation during each year.
18 Grunert v. State, 109 P.3d 924, 929 (Alaska 2005)
(internal quotation marks omitted) (alteration in original)
(quoting Interior Alaska Airboat Assn v. State, Bd. of Game, 18
P.3d 686, 689 (Alaska 2001)).
19 Id. (citing and quoting Meier v. State, Bd. of
Fisheries, 739 P.2d 172, 173 (Alaska 1987)).
20 Rose v. State, Commercial Fisheries Entry Commn, 647
P.2d 154, 161 (Alaska 1982).
21 Id.
22 AS 16.43.010.
23 State, Commercial Fisheries Entry Commn v. Apokedak,
606 P.2d 1255, 1261 (Alaska 1980).
24 Ch. 125, 1, SLA 1996.
25 See Rose, 647 P.2d at 161.
26 668 P.2d 1343 (Alaska 1983), superseded by statute, ch.
22, 5, SLA 1985, as recognized in Haynes v. State, Commercial
Fisheries Entry Commn, 746 P.2d 892, 894 (Alaska 1987).
27 Former AS 16.43.250(a) provided in relevant part:
The regulations shall define priority
classifications of similarly situated
applicants based upon a reasonable balance of
the following hardship standards:
(1) degree of economic dependence upon
the fishery, including but not limited to
percentage of income derived from the
fishery, reliance on alternative occupations,
availability of alternative occupations,
investment in vessels and gear;
(2) extent of past participation in the
fishery, including but not limited to the
number of years of participation in the
fishery, and the consistency of participation
during each year.
Ch. 47, 5, SLA 1981.
28 Rutter, 668 P.2d at 1349.
29 Ch. 22, 5, SLA 1985.
30 1985 Senate Journal 483.
31 Id.
32 746 P.2d at 893.
33 Id. at 894.
34 See 1985 Senate Journal 483.
35 Rose, 647 P.2d at 161.
36 See 20 AAC 05.814 (applying the same qualification
periods for the sea cucumber fishery); 20 AAC 05.820 (evaluating
hardship in the sea urchin fishery based on the total pounds
caught by a diver in the twelve-and-a-half years before the
moratorium).
1 There are biological reasons for this: Harvest for
geoducks has been allowed from October 1 through May 31 to avoid
the summer spawning and recovery period and to minimize paralytic
shellfish poisoning (PSP) toxin levels. Alaska Commercial
Fisheries Entry Commission, Southeast Alaska Geoduck Clam Dive
Fishery Rationale for CFECs Regulatory Decisions 7 (Dec. 28,
2000).
In recognition of these biological reasons geoduck
harvesting regulations define a registration year as starting on
October 1 and ending on September 30. 5 Alaska Administrative
Code (AAC) 38.146(b) (2007). All gear and vessels used to
harvest geoducks must be registered and registration certificates
must be kept on each vessel during harvesting. 5 AAC 38.020(c).
Certificates are issued on the basis of the registration year
October 1 through September 30.
2 AS 16.43.250(a)(2). While CFEC asserts that the
language of this statute, which speaks of the number of years of
participation in the fishery, guided its decision to implement a
calendar-year based participation system, year as used in the
statute can readily mean season. Indeed, CFEC has previously
interpreted year as season in some winter fisheries. 20 AAC
05.693(a) (awarding past participation points in the Southeastern
Alaska red and blue king crab pot fishery on a seasonal basis);
20 AAC 05.694(a) (awarding past participation points in the
Southeastern Alaska brown king crab fishery on a seasonal basis);
20 AAC 05.695(a) (awarding past participation points in the
Southeastern tanner crab pot fishery on a seasonal basis); see
also 5 AAC 34.020(b) (king crab registration year is June 28
through June 27); 5 AAC 35.020(c) (tanner crab registration year
is August 1 through July 31).
3 See supra Slip Op. at 4.
4 State v. Morry, 836 P.2d 358, 362-64 (Alaska 1992);
Johns v. Commercial Fisheries Entry Commn, 758 P.2d 1256, 1261
(Alaska 1988).
5 An example of a statute that operated so unfairly that
it could not stand is the section of the workers compensation act
devising a formula for determining gross weekly earnings that was
struck down in Gilmore v. Alaska Workers Compensation Board, 882
P.2d 922 (Alaska 1994), superceded by statute, AS 23.30.220, as
recognized in Dougan v. Aurora Electric, Inc., 50 P.3d 789, 796-
97 (Alaska 2002). This section was struck down on equal
protection grounds because it was needlessly unfair. Gilmore,
882 P.2d at 928-29. It seems clear that had it been a regulation
rather than a statute, the section would also have failed to pass
muster under the arbitrary and unreasonable standard.
6 Powercorp Alaska, LLC v. State, Alaska Indus. Dev. &
Exp. Auth., Alaska Energy Auth., 171 P.3d 159, 165 & n.25 (Alaska
2007) (issues not briefed or raised in administrative appeal to
superior court are waived).
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