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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doubleday v. State (8/20/2010) sp-6501
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
| MORGAN DOUBLEDAY, | ) |
| ) Supreme Court Nos. S- 13149/13189 | |
| Appellant and | ) |
| Cross-Appellee, | ) |
| ) Superior Court Nos. | |
| v. | ) 3HO-06-196 CI/3HO-06- 197 CI |
| ) | |
| STATE OF ALASKA, | ) |
| COMMERCIAL FISHERIES | ) |
| ENTRY COMMISSION, | ) O P I N I O N |
| ) | |
| Appellee and | ) |
| Cross-Appellant. | ) No. 6501 - August 20, 2010 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer,
Anna M. Moran, Judge.
Appearances: Michael Hough, Homer, for
Appellant and Cross-Appellee. Thomas E.
Lenhart, Assistant Attorney General and Talis
J. Colberg, Attorney General, Juneau, for
Appellee and Cross-Appellant.
Before: Carpeneti, Chief Justice, Eastaugh,
Fabe, Winfree, and Christen, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
I. A commercial fisher appeals the denial of his
application for permits for two fisheries. The Commercial
Fisheries Entry Commission denied the permit applications because
the fisher produced no evidence of his participation in one
fishery and evidence of only minimal participation in the other.
On appeal, the fisher argues that he could not meet his burden of
proof because the State destroyed or lost the records necessary
to prove his case, and that therefore this court should apply the
spoliation of evidence doctrine to conclude that the documents
would have established his participation. He also argues that
the entry commission violated the Limited Entry Act by using the
number of vessels to calculate the maximum number of permits in
the fisheries. The State cross-appeals, challenging the superior
courts award of attorneys fees as too low. Because the fisher
fails to establish a claim for spoliation of evidence, we affirm
the superior courts decision. We decline to hear the fishers
challenge to the maximum number of permits in these fisheries
because he did not exhaust his administrative remedies. Finally,
because the superior court did not abuse its discretion, we
affirm its award of attorneys fees.
II. FACTS AND PROCEEDINGS
A. Facts
1. Permitting system
1. This appeal arises under the Commercial Fisheries Entry
Commission (CFEC) point system for allocating permits to fish in
two sablefish fisheries, the Southern Southeast Inside (Southern)
and the Northern Southeast Inside (Northern) sablefish longline
fisheries. The CFEC decided in 1985 that, although these
fisheries were not distressed, participation in them should be
limited to achieve the purposes of the Limited Entry Act.1 The
CFEC set the maximum number of permits for both sablefish
fisheries by determining the number of units of gear during the
year of highest participation in the four years prior to limiting
entry to the fishery, to comply with our case law requiring that
the permit level could not be lower for non-distressed fisheries
than it would be under the statutory method of calculating the
number of permits for distressed fisheries.2 That method
requires that the maximum number of entry permits for a
distressed fishery . . . shall be the highest number of units of
gear fished in that fishery during any one of the four years
immediately preceding [limitation].3
The CFEC set the maximum number of permits for the
Northern fishery at 73 and the maximum number for the Southern
fishery at 18.4 These numbers reflect the highest number of
vessels to fish in these fisheries in the years 1981-1984.5
These entry permits are distributed according to a point system
in which applicants are ranked according to the degree of their
past participation in, and economic dependence on, the fishery.6
In order to be eligible to apply, an applicant must have legally
participated in the fishery in at least one qualifying year
between 1975 and 1984.7
2. Doubledays established fishery participation and the fish
ticket system
Doubleday held interim-use permits for the
longline sablefish fishery every year from 1979 through 1984.
Under the permitting system at the time, these permits known as
C61B permits were valid statewide. He licensed two vessels, one
of which he used primarily for longlining and specially outfitted
in 1980 with longlining gear designed for sablefish. It is not
disputed that Doubleday caught 175 pounds of sablefish in 1981
and 1,502 pounds in 1982 in the area now known as the Southern
fishery.
When a fisher sells his catch to a processor, the
processor is required to generate a record of this sale known as
a fish ticket.8 As the hearing officer explained in denying
Doubledays permit application, fish tickets are filed and
recorded independently of one another each year by the Department
of Fish and Game. Of the copies of fish tickets in the States
files from 1979-1984, the CFEC located 87 for Doubleday. Only
two are for sablefish both caught in the Southern fishery. No
fish tickets in the States records show Doubledays participation
in the Northern fishery.
B. Proceedings
1. Application, hearing request, and continuances
In 1987 Doubleday applied for permits to both the
Northern and Southern fisheries. For the Southern fishery, he
claimed on his application that he participated in 1981 and 1982
as both a skipper and holder of a crew members license. He
claimed on his application for the Northern fishery that he
participated in that fishery as a crew member from 1979 to 1984
and as a skipper from 1981 to 1984; he later amended this
application to claim points for participation as a skipper from
1978 to 1980. Finally, for both the Northern and Southern
fisheries, he claimed points for ownership of the fishing vessel
Eastern and relative income dependence.
After requesting additional evidence from Doubleday to
support his claims for points in the Southern fishery, the CFEC
approved only 16 points for participation in the Southern fishery
as a skipper in 1982, and it found no evidence to support his
claims for any additional points in either fishery. Because he
had not shown that he had ever harvested sablefish from the
Northern fishery during the qualifying years (1975-84), the CFEC
found him ineligible to even apply for a permit in the Northern
fishery. Doubleday requested an evidentiary hearing.
The CFEC granted multiple requests from Doubleday for
continuances, first setting the hearing off until 19899 and then
until 1995.10 Doubleday represented himself at the 1995 hearing,
but it too was continued because Doubleday had no documentary
evidence and was not prepared to represent himself. The final
portion of the hearing was held on January 24, 1996, and the
record was left open until June 2, 1997, at Doubledays request.
After the record was closed in 1997, the hearing officer denied
Doubledays permit applications.
2. Missing records
Doubleday claims that evidence that could have
allowed him to prove his participation was seized during an
investigation of fishing violations that he committed in 1984.
Doubleday fished for halibut out of season in Alaska waters and
illegally sold the halibut in Seattle.11 Both federal and state
agencies investigated; the State seized certain records, some of
which it turned over to federal agencies for the purpose of
investigating and prosecuting Doubledays halibut-related
offenses.12 Doubleday and his attorney in this case made some
efforts to locate the seized records, but they were ultimately
unsuccessful.13
3. Evidence at the hearings
1. At his initial hearing on December 6, 1995, Doubleday
appeared telephonically and represented himself. He was not able
to testify specifically regarding the years he believed he had
participated or the extent of his participation. When asked if
he had participated in each of the years 1979 through 1984 in the
Northern fishery, he replied:
Its been been some time, and off the top of
my head I I cant be absolutely sure thats
thats absolutely correct. Although I do know
that I that I fished there you know, at
points during the at that time period.
The hearing officer followed up by asking him to
confirm his recollection of his participation in the Southern
fishery, for which he claimed additional points for 1981, 1983,
and 1984. He answered, I I believe thats correct, yeah.
Doubleday said he had owned a number of vessels, but said his
longlining boats were the Ketchum II a smaller vessel he owned
through 1982 and converted from a trolling vessel to a longlining
vessel and the Eastern a larger vessel he gradually
transferred over to as his main vessel from 1979 to 1982 and
continued to use. He believed, though he could not specifically
recall, that he had used the Ketchum II in the inside sablefish
fisheries. He stated that he used the Eastern primarily for
longlining for both halibut and sablefish. He always sold the
sablefish to commercial buyers, mainly in Alaska but perhaps also
in Prince Rupert, British Columbia. He testified that he
longlined and trolled in the early 1980s and ended his trolling
efforts altogether towards 85.
After taking some testimony and learning that Doubleday
had no witnesses or documentary evidence of participation in
either fishery through 1984, the hearing officer stopped the
hearing. He told Doubleday he would obtain a printout of all
known fish tickets and recommended that Doubleday look into
specific additional sources of evidence of his participation, and
continued the hearing until January 24, 1996.
At the January 1996 hearing, Doubleday represented
himself, but mentioned that his attorney had recommenced his
efforts to locate the seized records. He did not ask for a
continuance and the hearing proceeded, but the record was left
open for an additional year and a half in case Doubleday or his
attorney located further information. Also at the January
1996 hearing, the hearing officer reviewed each year for each
fishery, noting the catches for which the department had records
for salmon and halibut. For each year, Doubleday sold halibut or
salmon during the sablefish season, and the hearing officer asked
if it was conceivable that he would have been fishing both
sablefish and salmon during those seasons and whether he would
have sold the sablefish at the same time he sold the other fish.
Doubleday indicated that he had done a lot of combination fishing
in those days and said it was conceivable. He testified that he
did not believe he had missed any sablefish season in the
Northern fishery back through 1978. When asked if he had
an explanation for why the Department of Fish and Game had no
fish tickets, he stated that he knew that the department had lost
some records and he hypothesized that some of his sablefish
tickets could be among them. The hearing officer asked him about
a loan application for the purchase of a larger boat in 1979, on
which he was asked to list his fishing history, and on which he
listed halibut and salmon but not sablefish. Doubleday responded
that sablefish prices were depressed at the time he filled out
the loan application and his crew was putting in the effort but
not making money from that fish. Doubleday could not remember
specifics about any individual season other than the years in
which he had gotten credit for landing sablefish in the Southern
fishery, 1981 and 1982.
Doubleday submitted affidavits from several persons,
all identical, stating:
This note will serve as an affidavit that I,
[affiant], have knowledge of Morgan Doubleday
fishing the vessel Eastern 228794 during the
years 1980-1990 and during this time he
primarily fished black cod and halibut
longline conventional gear.
The Eastern was involved in statewide as well
as Clarence Straits and Chatham Straits
fishing during this 10 year period. I can
recall Morgan Doubleday and the Eastern
fishing grounds with us and can remember him
making deliveries to various plants with his
product of longline caught black cod.
Doubleday never submitted any other testimony or evidence from
other crew members or companies that might have purchased
sablefish. No additional records or evidence were submitted
before the record was closed on June 2, 1997.
4. Denial of appeals
Hearing Officer Frank Glass issued his companion
decisions for the two fisheries on December 10, 1997, finding
that Doubleday failed to meet his burden of proof that he
qualified for additional points in either fishery. He therefore
denied Doubledays applications for both. On July 6, 2006, the
CFEC issued its final decisions. It confirmed that Doubleday was
eligible for only 16 points in the Southern fishery and that his
application would remain pending until the commission can
determine mathematically whether applicants with 16 points can be
issued a permanent entry permit. The commission also confirmed
that Doubleday had proven no participation in the Northern
fishery and was therefore ineligible to apply for a permit in
that fishery. The commission affirmed these decisions on
reconsideration in August 2006.
In the superior court, Doubleday argued that the CFEC
erred in setting the maximum number of permits for both fisheries
and that the decision was not supported by substantial evidence.
He also argued that the State violated his procedural due process
rights by closing the record and that the court should apply the
doctrine of spoliation of evidence and shift the burden of proof
to the State because it had lost records seized from him relating
to his fishing activities in the disputed years. Superior Court
Judge Anna M. Moran held that Doubleday failed to meet his burden
of proof and, even if the doctrine of spoliation of evidence
could apply to this type of case, no evidence supported his
claims that the government negligently or intentionally destroyed
records or that any documents existed which could establish his
participation in either fishery. Judge Moran declined to reach
the issue of whether CFEC erred in setting the maximum number of
permits, stating that [b]ecause the court has found in favor of
CFEC on these issues, it is unnecessary for the court to rule [on
the claim of error in setting the maximum number].
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeal for an administrative decision, we directly and
independently review the administrative decision.14 We have
recognized four principal standards of review for administrative
decisions: (1) the substantial evidence standard applies to
questions of fact; (2) the reasonable basis standard applies to
questions of law involving agency expertise; (3) the substitution
of judgment standard applies to questions of law where no
expertise is involved; and (4) the reasonable and not arbitrary
standard applies to review of administrative regulations.15 We
therefore review the agencys factual determinations regarding
Doubledays spoliation of evidence claim under the substantial
evidence standard, and its legal determinations under the
substitution of judgment standard.
IV. DISCUSSION
A. It Was Not Error To Reject Doubledays Claim Of Spoliation Of
Evidence.
A. Doubleday argues that any failure to meet his burden of
proof regarding the participation requirement is the result of
the States spoliation of his fishing . . . logs, . . . fish
tickets, and all other evidence of participation in this fishery.
He argues that he made a good faith effort to overcome the
mishandling of virtually all of his historical fishing
records . . . [and] spoliation of his evidence of fishing in the
subject fishery. He finally argues that the supplemental
evidence which the CFEC obtained from public state court records
in fact shows that the State destroyed, lost, or misplaced
records that he believes necessary to prove his entitlement to
the permit.
The CFEC argues that for the State to have lost all six
years of fish tickets in its files showing Doubledays
participation in the Northern fishery and four years of his
participation in the Southern fishery defies probability.
Further, Doubleday failed to produce any evidence of his
participation in these fisheries other than his vague testimony
and some over-broad affidavits. The CFEC concluded that the more
likely explanation for the lack of fish tickets is that Doubleday
did not fish in either the Northern or Southern fishery during
the relevant period of time. The CFEC further argues that any
claim that the State lost or destroyed records in Doubledays
possession that proved his sablefish participation is
contradicted by the list of items seized in the search warrants
it obtained from state court relating to the 1984 investigation.16
In order to obtain the benefit of the spoliation of
evidence doctrine, Doubleday must first establish that the
absence of records hinders his ability to establish a prima facie
case.17 He must also produce some evidence that the records are
missing through the intentional or negligent act of the adverse
party.18 If he could establish fault on the part of the State for
the destruction of evidence necessary to his case, then a court
could apply a rebuttable presumption that the missing documents
would have established facts unfavorable to the CFEC.19 The
hearing officer found that Doubleday did not produce evidence
supporting his claim that records had been destroyed or
wrongfully kept from him, and also failed to demonstrate what
potential evidence might exist and how it might affect the
outcome.
We agree with the CFEC that Doubleday must make some
showing that the records were lost due to fault of the State and
that they would likely support his claim. Here, the only
evidence offered on either issue is that the State seized 54
pages of documents from a seafood processor relating to the 1984
halibut season and that Doubledays home was searched, but that
nothing was seized. The search warrants do not provide any
indication that the State seized any sablefish-related records.
Rather, the search warrant served on the seafood processor was
limited to documents reflecting Doubledays purchase of supplies
and his sale of halibut. The warrants receipt and inventory
confirm that only such documents were seized. No property was
seized when officers searched Doubledays home pursuant to the
warrant. Finally, any navigational charts obtained during the
investigation were turned over to the federal government as part
of an ongoing investigation and are no longer under the control
of state prosecuting authorities, as found by the federal
district court.20 Doubleday has not established any evidence that
the State was negligent in its actions regarding these records,
or that they are likely to contain anything of relevance.
The CFEC gave Doubleday from 1987 until 1997 to locate
any material evidence in the hands of the federal government.
The CFEC suggested use of subpoenas, provided current addresses
for former crew members who might be able to provide specific
recollections of participation, and suggested other means of
obtaining evidence that Doubleday participated in the fisheries.
The Freedom of Information Act office responded to Doubledays
request for his federal records as follows in 1997: [The
documents] are public records which may be obtained from the
Clerk of the Court or from this office, upon specific request,
subject to copying fees. Doubleday does not indicate, and the
record does not suggest, that he ever challenged this response or
followed up on it. Nor does he indicate whether he ever searched
any additional state or federal court records. His efforts were
incomplete at best, and he never accepted the CFECs offer for
assistance or subpoenas.
Accordingly, we affirm the superior courts conclusions
that Doubleday failed to show that there was negligence in the
loss of the records and failed to show that the records would
change the determination of Doubledays participation in the
Northern and Southern fisheries. We also affirm the superior
courts conclusion that the CFECs findings on this issue are
supported by substantial evidence.
B. Doubleday May Not Challenge The CFEC Determination Of The
Maximum Number Of Permits In Either The Southern Or Northern
Fishery.
A. Doubleday argues that the CFEC erred in determining the
maximum number of permits for both the Southern and Northern
fisheries. He argues that the CFECs use of the number of vessels
as equivalent to the number of units of gear in setting the
maximum for both fisheries is obviously incorrect. The CFEC
makes three arguments in response: first, that Doubleday may not
raise this challenge because he failed to exhaust his remedies
below; second, that he lacks standing to challenge the procedure
regarding the Northern fishery; and third, that the procedures
have already been approved by this court, so further challenge is
foreclosed.
We begin by determining whether to apply the doctrine
of exhaustion of remedies to this issue. In applying the
doctrine of exhaustion of remedies, we must decide the following:
(1) is exhaustion of remedies required; (2) did the complainant
exhaust those remedies; and (3) if not, is the failure to exhaust
remedies excused?21
1. Doubleday was required to exhaust his administrative
remedies before the agency prior to raising this challenge.
The CFEC argues that Doubleday may not raise a
challenge to its method
of setting permits because he did not raise this claim before the
agency, and therefore has not exhausted his remedies with regard
to this claim. Doubleday argues that exhaustion should not be
required because it is obvious that CFECs use of the number of
vessels as equivalent to the number of units of gear violates the
Limited Entry Act.
A claimant must generally exhaust administrative
remedies before making a claim in court challenging the agencys
decision-making procedures. We have observed that [t]he basic
purpose of the exhaustion doctrine is to allow an administrative
agency to perform functions within its special competence to
make a factual record, to apply its expertise, and to correct its
own errors so as to moot judicial controversies. 22 On the other
hand, certain pure issues of law, most notably constitutional
issues but also certain questions of statutory validity, are
within the special expertise of the court, rather than the
administrative agency.23 However, our cases make clear that only
the purest legal questions, requiring no factual context, are
exempt from the exhaustion requirement:
If a procedural challenge to agency
decisionmaking has simply been dressed in
constitutional clothing, or if the action is
an attempt to substitute a damage claim in
tort for an unperfected administrative
remedy, the complainant must first exhaust
administrative remedies. On the other hand,
if the claim does not challenge any
particular decision by an agency and instead
calls upon the superior court to review only
the validity of a statute, exhaustion of
administrative remedies is not required.[24]
We have suggested that accusations that an agency has violated a
statute are generally subject to the requirement of exhaustion.25
Under the Limited Entry Act, the CFEC must
base the maximum number of permits on the maximum number of units
of gear fished in that fishery during any one of the four years
immediately preceding [limitation].26 The CFEC freely admits that
it considers vessels equivalent to units of gear and claims that
they are equivalent for this type of fishery. Although Doubleday
states that this is obviously in violation of the Limited Entry
Act, he does not explain how or why another definition would be
more appropriate to this fishery. Neither party addresses the
definition of unit of gear in the Limited Entry Act or its
application to sablefish longline fisheries.
The term unit of gear is defined by statute for
limited entry fisheries. Alaska Statute 16.43.990(11) states
that a unit of gear means the maximum amount of a specific type
of gear that can be fished by a person under regulations
established by the Board of Fisheries defining the legal
requirements for that type of gear. By its terms, the
implementation of this statutory definition requires application
of expertise about the fishing industry.
Definitions for unit of gear for some distressed
fisheries using types of gear other than longlines have been
provided by regulation: unit of gear means the aggregate amount
of gear operated from a single vessel.27 We have previously noted
the commissions use of the number of vessels to set the maximum
number of units of gear in the Northern fishery, without
explicitly ruling on whether the number of unit[s] of gear is
equivalent to number of vessels.28 No definition for unit of gear
is provided for the sablefish fisheries in the definition section
of the regulations, no definition of unit of gear is specific to
the Northern and Southern fisheries,29 and neither side has
pointed to any additional regulations providing further details
on the appropriate procedures for setting the maximum number of
units of gear in the sablefish longlining context.
We cannot agree with Doubledays assertion that the CFEC
has committed obvious error in using a vessel count to calculate
the maximum unit of gear. In the absence of regulatory
clarification of the definition of units of gear, no basis exists
for evaluating the allegation that the CFEC has improperly found
units of gear to be equivalent to number of vessels. Doubleday
apparently believes the maximum number of units of gear should be
the same as the number of permit-holders fishing, but does not
explain why that more clearly equates with the statutory
definition. It is unclear from the record how many longlines or
operators are on a typical sablefish vessel or how one would go
about determining the maximum number of longlines that could be
operated by one person in accordance with the legislatures
directive in AS 16.43.990(11). In summary, this term cannot be
defined without factual context and expertise regarding the
fishing industry.
This question clearly falls within the agencys
expertise. For that reason, we apply our rule that it is
axiomatic to our system of justice that we have a factual context
within which to review a case.30 This agency decision has been
made in a factual context we are ill-equipped to understand
without a record developed at the agency level. We therefore
conclude that Doubleday was required to exhaust this claim within
the agency appeal process.31
2. Doubleday did not exhaust available administrative remedies.
Doubleday did not raise any arguments regarding error
in setting the maximum number of permits before the hearing
officer or on appeal to the CFEC. Therefore, there is no dispute
that this element is met.
3. Doubledays failure to exhaust is not excused for futility.
1. Doubleday finally argues that his failure to exhaust his
administrative remedies should be excused on futility grounds.
He claims that the hearing officer did not have authority to
consider Mr. Doubledays claims regarding the maximum number of
permits CFEC was required to issue. He also appears to argue
that the CFEC has rejected essentially the same arguments and
facts in several cases, and therefore raising the argument again
would be futile.
While Doubleday is correct to the extent that he claims
that a hearing officer may not set aside a regulation on his own
authority,32 Doubleday overlooks that the CFEC reviews all hearing
officer decisions on appeal. Had he raised his challenge before
the agency, the agency would have had the opportunity to explain
its use of expertise and the facts on which it relied in
developing its counting methodology. In fact, we recently
remanded a case for consideration of this same type of issue to
the CFEC in May v. State, Commercial Fisheries Entry Commision;33
in that case, we noted that the CFEC had already amended its
regulation in one respect in response to Mays petition for
review.34 It is not futile to raise these issues before the CFEC,
because the CFEC has the power to amend its own regulations.
Indeed, the CFEC must have the opportunity to consider these
arguments in the first instance for the exact reasons that
justify the exhaustion of remedies: to develop a factual record,
apply its expertise, and provide a context for our review.
Doubleday also argues that the exhaustion requirement
should be excused under a futility exception because the CFEC
rejected a similar argument in a recent case.35 That case,
decided considerably after Doubledays appeal before the CFEC,
does not excuse Doubleday from the requirement that he exhaust
his remedies. It would not have been futile for Doubleday to
raise arguments and introduce factual evidence of data relating
to the meaning of units of gear before the CFEC. Before us,
Doubleday makes several unsupported factual claims regarding what
data held by Department of Fish and Game and other commercial
fisheries regulating agencies would show on the issue of whether
units of gear and vessels are the same. Had he raised these
issues before the CFEC, it would have been able to develop these
facts and apply its expertise to the interpretation of this
information. At this point, we have no basis to evaluate these
alleged facts, the details of which are nowhere in the record.
We see no obvious violation of the Limited Entry Act and remain
unable to evaluate the agencys application of its expertise
within the factual context of this case.36 The fact that neither
side has introduced evidence regarding the appropriate definition
of unit of gear under the statute is a result of Doubledays
failure to exhaust his remedies before the CFEC.
Because it would not have been futile for Doubleday to
raise his claims before the CFEC, and because his failure to do
so results in a complete lack of a factual record for us to
evaluate the CFECs implementation of AS 16.43.990(11)s unit of
gear definition, we conclude that Doubleday may not now challenge
the agencys use of vessel count to calculate the maximum number
of permits in both the Northern and Southern fisheries.
C. The Superior Court Did Not Abuse Its Discretion In Finding
That The Doubleday Appeals Were Neither Frivolous Nor Brought For
Purposes Of Delay.
The CFEC cross-appeals, arguing that the superior court
abused its discretion in finding that Doubledays appeals were
neither frivolous nor brought for purposes of delay. The CFEC
claims that because Doubledays entire argument rested on the
State having specifically seized five boxes of records and the
court found it not to have been shown that the records were
seized or even existed, the court should have found the appeal to
have been frivolous or brought for purposes of delay. Not only
did the records not exist, the CFEC claims, but Doubleday was
aware of their non-existence. The CFEC claims that Doubleday has
knowingly continued to fish for 20 years on an interim permit in
the Northern fishery that he knew he was not entitled to.
Doubleday contends that he made his arguments regarding
the maximum number of permits in good faith and not for purposes
of delay. He argues that he had a reasonable basis to believe
other records existed that could help him because the federal
prosecutor suggested more records existed, because CFECs
paralegal told him that a state trooper had 107 pages of records,
and because his belief that his charts and delivery records still
existed was confirmed by the State.
A superior court sitting as an intermediate court of
appeal has broad discretion to award attorneys fees.37 The
superior court found that Doubleday did not bring his appeal
simply for purposes of delay and that it was not frivolous.
Generally, we find an abuse of discretion in the award of
attorneys fees if the award is arbitrary, capricious, manifestly
unreasonable, or improperly motivated.38 We see no abuse of
discretion in the superior courts conclusion that the appeal was
neither frivolous nor brought for purposes of delay.
IV. CONCLUSION
Because Doubleday presented insufficient evidence upon
which the CFEC could find that the State was at fault in the
destruction of records that might have established that he was
entitled to more participation points, we AFFIRM the CFECs denial
of additional points. Because Doubleday failed to raise his
challenge to the maximum number of permits before the CFEC and we
have no factual context in which to evaluate the agencys
application of its expertise to the definition of units of gear
in the sablefish longlining context, we decline to consider this
challenge. Finally, because we see no abuse of discretion in the
superior courts award of attorneys fees, we AFFIRM that award.
Accordingly, we AFFIRM, in all respects, the decision of the
superior court that affirmed the decision of the CFEC.
_______________________________
1 Johns v. Commercial Fisheries Entry Commn, 758 P.2d
1256, 1260 (Alaska 1988) (holding that CFEC has authority under
Limited Entry Act to adopt regulation establishing maximum number
of permits for non-distressed fishery). 20 Alaska Administrative
Code (AAC) 05.310(f). The Limited Entry Act is codified at AS
16.43.010-.990 and is designed to promote conservation, sustained
yield management of fisheries, and the economic health and
stability of commercial fishing. AS 16.43.010.
2 Simpson v. Commercial Fisheries Entry Commn, 101 P.3d
605, 607 (Alaska 2004) (citing Johns, 758 P.2d at 1261-62)
(holding that for non-distressed fisheries, maximum number of
permits must be no lower than that dictated by statute for
distressed fisheries).
3 AS 16.43.240(a).
4 20 AAC 05.320(e)(1)-(2).
5 Simpson, 101 P.3d at 607-08.
6 AS 16.43.250; AS 16.43.270.
7 20 AAC 05.703(a).
8 See 5 AAC 39.130(c): The first purchaser of raw fish, a
catcher-seller, and an individual or company that catches and
processes or exports that individuals or companys own catch or
has that catch processed or received by another individual or
company, shall record each delivery on an ADF&G fish ticket. Fish
tickets must be submitted to a local representative of the
department within seven days after delivery or final delivery if
multiple deliveries are made, or as otherwise specified by the
department, for each particular area and fishery.
9 Doubleday obtained one continuance on the grounds that
he could not communicate with key witnesses, such as crew members
who could verify his fishing history, because his conditions of
probation from a prior federal fishing violation prohibited him
from communicating with these crew members until his probation
ended.
10 The day before that hearing date, Doubledays attorney
requested another continuance. Shortly thereafter he informed
the hearing officer that virtually all of Doubledays fishing
records were unavailable as evidence for the hearing, because
federal and state authorities had seized the records as part of a
prosecution for some fishing violations in 1984-85.
11 See United States v. Doubleday, 804 F.2d 1091, 1093
(9th Cir. 1986).
12 Id.
13 At one point, a Freedom of Information Act request to
the Executive Office for United States Attorneys the official
record-keeper for all records located in . . . the various United
States Attorneys offices was denied with the notation that [the
documents] are public records which may be obtained from the
Clerk of the Court or from this office, upon specific request,
subject to copying fees. The denial letter contained appeal
instructions; there is no indication that an appeal was ever
taken.
14 Conkey v. State, Dept of Admin., Div. of Motor
Vehicles, 113 P.3d 1235, 1237 (Alaska 2005).
15 Pasternak v. State, Commercial Fisheries Entry Commn,
166 P.3d 904, 907 (Alaska 2007).
16 Neither party has addressed the issue whether sanctions
for spoliation of evidence are available in an administrative
proceeding. We assume, without deciding, that this is the case.
17 Sweet v. Sisters of Providence in Wash., 895 P.2d 484,
491 (Alaska 1995).
18 Id.
19 Id. at 491-92.
20 Doubleday also alleges seizure of a Christmas gift
order form and a calendar, but does not explain how these items
could demonstrate participation in the subject fisheries.
21 Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 98-99
(Alaska 1992). Ordinarily, the trial court makes this decision
in the first instance and we review for abuse of discretion. Id.
at 98. Here, the trial court did not explain its decision not to
reach this claim, apparently believing it was unnecessary because
it upheld the CFECs findings regarding the spoliation of evidence
claim. However, we believe that the issue must be addressed
because Doubleday could conceivably qualify for the Southern
fishery with 16 points if the number of permits allowed were to
increase.
22 Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d
119, 121-22 (Alaska 1988).
23 Moore v. State, Dept of Transp. & Pub. Facilities, 875
P.2d 765, 767 (Alaska 1994); see also Standard Alaska Prod. Co.
v. State, Dept of Revenue, 773 P.2d 201, 207 (Alaska 1989)
([W]here a controversy involves only constitutional [issues], and
no factual issues, the exhaustion doctrine may be held not to
apply.).
24 State, Dept of Transp. & Pub. Facilities v. Fairbanks
N. Star Borough, 936 P.2d 1259, 1261 (Alaska 1999) (internal
citations omitted).
25 See Moore, 875 P.2d at 767-68 (holding that Moores
action for declaratory relief was not subject to the exhaustion
requirement and distinguishing it from cases in which claimant
argued there had been a violation of applicable statutes).
26 AS 16.43.240(b), applied to non-distressed fisheries in
Johns v. Commercial Fisheries Entry Commn, 758 P.2d 1256, 1261-62
(Alaska 1988); see also Simpson v. Commercial Fisheries Entry
Commn, 101 P.3d 605, 607 (Alaska 2004).
27 See, e.g., 20 AAC 05.686 (In 20 AAC 05.680 - 20 AAC
05.686, unless otherwise specified . . . , unit of gear means the
aggregate amount of gear operated from a single vessel.).
28 Simpson, 101 P.3d at 607-08 (CFEC therefore proposed
limiting the number of vessels in the fishery to 73, the number
of vessels fishing in 1984, the season in which participation was
highest.). See also Pasternak v. State, Commercial Fisheries
Entry Commn, 166 P.3d 904, 908 n.34 (Alaska 2007) (noting that
Simpson does not foreclose litigants argument that correct number
to measure units of gear was number of participants rather than
number of vessels, but nonetheless declining to rule on argument
because Pasternak had not shown prejudice).
29 20 AAC 05.713 (2008).
30 Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d
119, 122 (Alaska 1988).
31 It is unclear whether Doubleday raises a separate
challenge to the methodology of counting vessels. He argues that
[t]he maximum number [of units of gear] should be . . . 74 to 86.
The State responds, and we agree, that this argument is based on
a misreading of Alaska Department of Fish and Game data. The
departments chart does state that the number of permits in the
Northern fishery was 86 in 1984, but notes that [p]rior to 1985
there was not a [Northern fishery] sablefish permit card so the
number of permits includes sablefish landings made on mixed gear
and permit cards covering halibut, mixed fin fish, and salmon, as
well as sablefish. Doubleday also makes an assertion at one
point that CFEC used an incorrect number in the past for the
Southern fishery, but he later concedes that this was corrected
by the CFEC, as recognized in May v. State, Commercial Fisheries
Entry Commn, 175 P.3d 1211,1213 n.5 (Alaska 2007), and that the
number of vessels was in fact 18. To the extent that Doubleday
is attempting to claim that the methodology of counting the
vessels was incorrect in some other way, the same rationale
applies as to his claim that the CFEC improperly used vessels as
equivalent to units of gear: This claim should have been raised
before the agency in order to develop a factual record.
32 Kalmakoff v. Commercial Fisheries Entry Commn, 693 P.2d
844, 846 n.3 (Alaska 1985) (Appellant could not [challenge CFEC
regulations] at the administrative hearing because a hearing
officer has no power to set aside a challenged regulation.).
33 175 P.3d at 1213.
34 Id. at 1213 n.5.
35 Vincent P. Arbucci, CFEC 89-331-A, at 12-16, 23
(December 16, 2008) (final admin. review).
36 The argument that the CFEC has incorrectly interpreted
the statutory definition of units of gear by equating it with
vessels for all gear is not foreclosed by either Pasternak v.
State, Commercial Fisheries Entry Commn, 166 P.3d 904 (Alaska
2007), in which we declined to reach the argument on grounds that
the claimant could not show prejudice, id. at 908, or by Simpson
v. State, Commercial Fisheries Entry Commn, 101 P.3d 605 (Alaska
2004), in which we found the argument waived for failure to raise
it before the superior court. Id. at 611. We have never
conclusively decided this issue or had an adequate factual
context to approve CFECs application of the statutory definition
of units of gear.
37 Alaska R. App. P. 508(e); see Cleaver v. State,
Commercial Fisheries Entry Commn, 48 P.3d 464, 470 (Alaska 2002).
38 Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008)
(quoting Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001)).
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