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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. State, Commercial Fisheries Entry Commission (07/03/2008) sp-6279
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
| NORVAL H. NELSON, SR., | ) |
| ) Supreme Court No. S- 12563 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-03-9559 CI | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| COMMERCIAL FISHERIES | ) |
| ENTRY COMMISSION, | ) No. 6279 - July 3, 2008 |
| ) | |
| Appellee. | ) |
| ) | |
| ) | |
| NORVAL E. NELSON, JR., | ) Supreme Court No. S- 12564 |
| ) | |
| Appellant, | ) Superior Court No. 3AN-03-9560 CI |
| ) | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) |
| COMMERCIAL FISHERIES | ) |
| ENTRY COMMISSION, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Michael Hough, Homer, for
Appellants. John T. Baker, Assistant Attorney
General, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
The Alaska Commercial Fisheries Entry Commission (CFEC)
issues entry permits and interim-use permits for commercial
fishing purposes.1 Both types of permits are renewable annually.2
The CFEC designates distressed and certain other fisheries for
limited entry and caps the number of entry permits it issues for
these fisheries.3 A point system determines who receives entry
permits for these fisheries; points are available for economic
dependence on and past participation in a given fishery.4 The
CFEC has authority to issue an interim-use permit while an entry
permit application is pending or being appealed.5
In 1987 father and son fishers applied separately for
entry permits in a sablefish fishery the CFEC had designated for
limited entry.6 The CFEC denied both applications for
insufficient points. The father and son argue, as they have
throughout their proceedings, that they each should be awarded
additional points for two reasons: (1) the CFEC should be
estopped from denying each of them additional skipper points
because its misinformation caused both of them not to qualify for
those points; and (2) they each qualify for additional skipper
points under a regulatory extraordinary circumstances exception.7
We affirm the denials of the extra points, and therefore the
denials of the entry permits, because the CFEC did not err in
concluding that the father and son were not misinformed and that
neither qualified for additional points for extraordinary
circumstances.
II. FACTS AND PROCEEDINGS
Norval H. Nelson, Sr. (Nelson Sr.) and his son, Norval
E. Nelson, Jr. (Nelson Jr.) have been full-time commercial
fishers for many years. They fish together, just as Nelson Sr.
fished with his father, and they have landed crab, sablefish, and
halibut.
By early 1987 the CFEC had determined that the Northern
Southeast Inside sablefish longline fishery (sablefish fishery)
could sustain only seventy-three commercial fishers.8 In
November 1987 Nelson Sr. and Nelson Jr. each applied to the CFEC
for a sablefish fishery entry permit. Each claimed a total of
44.5 points: 9 points for 1975 skipper participation, 18 points
for 1984 skipper participation, 10 points for income dependence,
and 7.5 points for vessel ownership. In 1989 the CFEC classified
Nelson Sr. with 0 points and Nelson Jr. with 40.5 points, and did
not grant either application due to insufficient points.
The Nelsons requested administrative hearings and each
amended his application to include an additional 11 points for
skipper participation in 1977, for a projected total of 55.5
points each. A joint hearing on their applications was held in
1992, and the Nelsons raised two arguments now before us in this
appeal. First, the Nelsons asserted that CFEC relayed
misinformation that ultimately resulted in the CFEC denying
Nelson Sr. skipper points for 1984 and Nelson Jr. skipper points
for 1975 and 1977. Specifically, the Nelsons alleged that a CFEC
staff person erroneously told Nelson Sr. that each boat could
have only one interim-use permit at a time. The Nelsons claimed
that as a result of this alleged misinformation, Nelson Sr. did
not secure an interim-use permit in 1984 because Nelson Jr. had
one for that year, and Nelson Jr. did not secure an interim-use
permit in 1975 or 1977 because Nelson Sr. had one for each of
those years. Neither Nelson was entitled to skipper points for
the years he did not have an interim-use permit but each argued
that he nonetheless should receive those points under an estoppel
theory. Second, the Nelsons asserted that a mechanical breakdown
in 1977 precluded them from participating in the sablefish
fishery, which constituted extraordinary circumstances entitling
each of them to skipper points for that year.
In January 1997 a CFEC hearing officer issued a
consolidated decision classifying Nelson Sr. with 17.5 points and
Nelson Jr. with 43.5 points, still insufficient to qualify either
Nelson for a permit. The Nelsons petitioned for administrative
review in April 1997, and in August 2002 the CFEC affirmed the
hearing officers decision. The Nelsons petitioned for
reconsideration, and in June 2003 the CFEC again affirmed the
hearing officers decision. The Nelsons then appealed to the
superior court.
In December 2006 Superior Court Judge Michael L.
Wolverton affirmed the decisions of the hearing officer and the
CFEC. The superior court noted that the hearing officers factual
findings about the misinformation claim were supported by
substantial evidence and that the hearing officers conclusion
about the lack of extraordinary circumstances was supported by
the facts in the record and [had] a reasonable basis in law.
The Nelsons appeal individually. This opinion
addresses both appeals.
III. STANDARD OF REVIEW
When a superior court acts as an intermediate court of
appeal, we independently review the merits of the underlying
administrative decision and give no deference to the superior
courts decision.9 We have recognized at least four principal
standards of review for administrative decisions,10 two of which
are applicable here: substantial evidence for questions of fact
and reasonable basis for questions of law that involve agency
expertise.11 Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.12
IV. DISCUSSION
We affirm the CFEC decision. Substantial evidence
supports the CFECs conclusion that the Nelsons were not
misinformed. The CFEC also had a reasonable basis for its
conclusion that the Nelsons mechanical troubles did not
constitute extraordinary circumstances.13
A. The CFEC Decision Rejecting the Nelsons Misinformation Claim
Is Supported by Substantial Evidence.
Successful estoppel claims against the government must
satisfy four elements: (1) a governmental body asserts a
position; (2) a person reasonably relies on that assertion; (3)
the person suffers prejudice as a result; and (4) estoppel serves
the interest of justice.14 The hearing officer and the CFEC
concluded that the Nelsons had failed to prove that an erroneous
statement had been made.
The hearing officer found that the Nelsons testimony
about the alleged misinformation was confused, contradictory, and
thus, not credible. The hearing officer identified discrepancies
in the Nelsons position: first, Nelson Sr. contradicted himself
regarding when the alleged statement was made; second, the
Nelsons contradicted themselves regarding whether they believed
they only needed one permit or whether they only could have one
permit; and third, the Nelsons had on several other occasions
held duplicate permits. The hearing officer noted that the only
evidence of alleged misinformation was the Nelsons self-
interested testimony, which, in the case of Nelson Jr., was based
not on personal knowledge but rather on what his father had told
him. The hearing officer concluded that by neither asking the
staff person to testify nor introducing evidence of other fishers
being wrongly advised on this issue, the Nelsons failed to
establish that they had been misinformed.
In our view, substantial evidence supports the hearing
officers and the CFECs conclusions that the staff person did not
misinform the Nelsons. We thus uphold the CFECs decision not to
award either Nelson additional skipper points based on estoppel.
B. The CFEC Decision Rejecting the Nelsons Extraordinary
Circumstances Claim Has a Reasonable Basis.
The CFEC may award applicants points they reasonably
would have been entitled to receive but for extraordinary
circumstances.15 Extraordinary circumstances do not include
voluntary or involuntary retirement from a fishery or loss of the
financial means to continue participation in a fishery.16
Extraordinary circumstances do include the loss of vessel or
equipment through sinking, destruction, or extensive mechanical
breakdown.17 Mechanical breakdown implies that the equipment
worked at some point. Inability to properly use equipment and
unsuitability of equipment are not generally considered to be
mechanical breakdowns. 18
The hearing officer and the CFEC rejected the Nelsons
extraordinary circumstances claim, concluding that inappropriate
gear, not gear failure, ultimately caused the Nelsons inability
to participate in the sablefish fishery in 1977. The hearing
officer acknowledged that the Nelsons experienced mechanical
problems that year, but, because the sablefish fishery season was
two and a half months long, found it was [m]ore than likely that
they had ample time to have a gear failure and still get back to
fishing after a repair. The hearing officer found that if the
Nelsons had been prevented from participating in the sablefish
fishery, it was because they were using a crab block instead of a
longline gurdy and that [a]cquiring the necessary equipment is a
common experience for fishers and is not unique or extraordinary.
The hearing officer also noted that their vessel was run down,
that any boat share money beyond the loan payment went into
repairing and equipping the vessel, and that the Nelsons did not
participate in the sablefish fishery with that vessel again until
1984.
In our view, the CFEC had a reasonable basis for its
interpretation and application of the regulations to reject the
Nelsons extraordinary circumstances claim. It is unfortunate if
financial considerations precluded the Nelsons from participation
in the sablefish fishery, but the regulations explicitly state
that loss of the financial means to continue participation in a
fishery does not constitute extraordinary circumstances.19 We
thus uphold the CFECs decision declining to award the Nelsons
additional points based on this claim.
V. CONCLUSION
Because the CFEC did not err in declining to give the
Nelsons additional points, we AFFIRM the denials of their limited
entry permits.
_______________________________
1 AS 16.43.020, .100(a)(7)-(8), .140. The Limited
Fisheries Entry Act, AS 16.43.010-.990, established the CFEC and
charged it with, among other things, regulat[ing] entry into the
commercial fisheries for all fishery resources in the state. AS
16.43.020, .100(a)(1).
2 20 Alaska Administrative Code (AAC) 05.425(a), .560(a)
(2007).
3 20 AAC 05.300-.320, .515.
4 AS 16.43.250; 20 AAC 05.600(a).
5 20 AAC 05.415.
6 20 AAC 05.310(f).
7 20 AAC 05.703(d).
8 Cleaver v. State, Commercial Fisheries Entry Commn, 48
P.3d 464, 465 (Alaska 2002). Northern Southeast Inside refers to
an administrative area described in the regulations. 20 AAC
05.230(a)(8). Sablefish are also referred to as black cod.
Cleaver, 48 P.3d at 466 n.9. Longlining involves using baited
hooks on offshoots . . . of a single main line (usually several
miles long) to catch fish. Id. at 466 n.8.
9 Simpson v. State, Commercial Fisheries Entry Commn, 101
P.3d 605, 609 (Alaska 2004) (citing Bruner v. Petersen, 944 P.2d
43, 47 n.5 (Alaska 1997)).
10 Id. (citing Jager v. State, 537 P.2d 1100, 1107 n.23
(Alaska 1975)).
11 Id.
12 Cleaver, 48 P.3d at 467 (citing Commercial Fisheries
Entry Commn, State v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991)).
13 The State also argues that Nelson Sr.s appeal is moot.
According to the State, even if the CFEC had classified Nelson
Sr. with all of the points he seeks through his appeal, he still
would not qualify for a permit because the denial level as of
October 9, 2007, was higher than Nelson Sr.s projected point
total. The State cites OCallaghan v. State, 920 P.2d 1387
(Alaska 1996), in support of the proposition that an appeal is
moot if an appellant who prevailed would not be entitled to
relief. Id. at 1388. In OCallaghan, we concluded that the
appeal of an unsuccessful gubernatorial candidate was moot
because the term of office of the successful candidate had
already ended. Id. at 1388-89. The State may be correct, but
because we still must address Nelson Jr.s claims, which mirror
Nelson Sr.s claims, we resolve the claims on their merits.
14 Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988)
(citing Municipality of Anchorage v. Schneider, 685 P.2d 94, 97
(Alaska 1984)).
15 20 AAC 05.703(d).
16 Id.
17 Id.
18 Cleaver, 48 P.3d at 469.
19 20 AAC 05.703(d).
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