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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Widmyer v. State, Commercial Fisheries Entry Commission (12/9/2011) sp-6627
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JIM L. WIDMYER, )
) Supreme Court Nos. S-14009/14010
Appellant, ) (Consolidated)
)
v. ) Superior Court Nos. 1KE-09-00308 CI
) and 1KE-09-00309 CI
STATE OF ALASKA, )
COMMERCIAL FISHERIES ) O P I N I O N
ENTRY COMMISSION, )
) No. 6627 - December 9, 2011
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Ketchikan, Trevor Stephens, Judge.
Appearances: Bruce B. Weyhrauch, Law Office of Bruce B.
Weyhrauch, Juneau, for Appellant. Thomas Lenhart,
Assistant Attorney General, and John J. Burns, Attorney
General, Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
Jim Widmyer, a commercial fisher, applied for a permit to fish for sablefish.
The State distributes these permits largely on the basis of past participation in the
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sablefish fishery, specifically participation between 1975 and 1984. An applicant is
deemed to have participated in a given year if the applicant landed 2,000 pounds of
sablefish that year or if the applicant would have landed sablefish if not for
"extraordinary circumstances." Widmyer, though he had been unable to land many fish
between 1975 and 1984, argued that he qualified for participation due to extraordinary
circumstances. The Commercial Fisheries Entry Commission and the superior court both
determined that Widmyer did not qualify for participation due to extraordinary
circumstances. We affirm.
II. FACTS AND PROCEEDINGS
A. Application And Initial Rejection
In 1973 the Alaska Legislature passed the Limited Entry Act.1 This act
established the Commercial Fisheries Entry Commission and gave it the power to restrict
entry into state fisheries.2 In 1985 the CFEC restricted entry in the Northern and
Southern Southeast Inside sablefish longline fisheries (hereafter the Northern and
Southern fisheries), deciding that only 73 vessels per year would be permitted to harvest
the Northern fishery and only 18 permitted to harvest the Southern fishery.3 The CFEC
adopted a point system to allocate these entry permits.4 An applicant could claim points
1 Ch. 79, § 1, SLA 1973; AS 16.43.010-.990 (2010).
2 Cleaver v. State, CFEC, 48 P.3d 464, 465 (Alaska 2002).
3 20 Alaska Administrative Code (AAC) 05.310(c)(1), (2) (2011); 20 AAC
05.320(e); Simpson v. State, CFEC, 101 P.3d 605, 607-08 (Alaska 2004).
4 20 AAC 05.701; 20 AAC 05.711.
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on the basis of either "past participation" in the fishery or on the basis of "economic
dependence" on the fishery.5
Jim Widmyer applied for entry permits in both the Northern and Southern
fisheries on December 30, 1987. He claimed to have participated in the fisheries in
1977, 1978, 1979, 1982, and 1983. He also claimed points based on economic
dependence.
CFEC regulations provide that an applicant can claim participation points
for a given year if the applicant harvested at least 2,000 pounds of fish that year.6 If the
applicant is unable to meet this standard, the applicant may nonetheless be able to receive
participation points "[i]f extraordinary circumstances prevented an applicant from
participating in the fishery in a given season."7 CFEC regulations provide that
"[e]xtraordinary circumstances include temporary illness or disability, the loss of vessel
or equipment through sinking, destruction, or extensive mechanical breakdown, and
other similar objectively verifiable causes of non-participation."8
Widmyer claimed extraordinary circumstances in the Southern fishery for
1977, 1978, 1979, and 1983, only claiming that he actually landed a catch in 1982. In
the Northern fishery, Widmyer had no fish landings, but he claimed extraordinary
circumstances for the same years (1977, 1978, 1979, and 1983). Widmyer
acknowledged in his application that he did "not have much of a chance" under the
points system, but he sought points "on medical and hardship reasons."
5 20 AAC 05.701; 20 AAC 05.705.
6 20 AAC 05.705(a)(1)(A), (2)(A)(ii).
7 20 AAC 05.703(d).
8 Id.
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The CFEC sent Widmyer a letter on January 7, 1988 requesting that
Widmyer sign a tax waiver allowing the CFEC to access Widmyer's tax returns. This
letter was sent by certified mail and was returned unaccepted. Widmyer, in a later
hearing, stated that he did not, as a matter of principle, accept certified mail.
On February 24, 1988, the CFEC sent Widmyer a letter stating that since
it had no record of Widmyer fishing the Northern fishery, his application for that fishery
was denied. This letter was sent by certified mail and was returned unaccepted.
Widmyer called the CFEC on May 11, 1988 and during the call was informed that his
application had been denied.
In May 1988 Widmyer retained attorney Brad Brinkman to handle his
applications. On May 27, 1988, Brinkman sent the CFEC a letter requesting copies of
Widmyer's "permit files." On September 9, 1988, the CFEC replied, again requesting
a tax waiver from Widmyer as well as "affidavits, medical records, and any other
relevant documents explaining the reason [he] could not participate in this fishery from
1977-1979 and 1983." This letter was sent by certified mail and was again returned
unaccepted. The CFEC re-sent the letter on October 3, 1988.
On June 13, 1988, Brinkman sent a letter requesting a hearing on
Widmyer's application for the Northern fishery. On June 15, 1988, hearing officer Jesse
Walters replied, granting the request for a hearing on Widmyer's Northern fishery
application.
On April 17, 1989, the CFEC awarded Widmyer 16 of the 73 points he had
claimed in his application for the Southern fishery, awarding him participation points for
1982, the only year Widmyer had actually landed sablefish. The CFEC explained that
if Widmyer disagreed with this assessment, he could request an administrative hearing.
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B. Administrative Hearing
Brinkman responded by letter on April 20, 1989, requesting an
administrative hearing on Widmyer's Southern fishery application. Brinkman repeated
Widmyer's arguments for participation points and economic dependence points and
included a number of documents, mostly medical records, supporting Widmyer's claims.
Brinkman also requested copies of Widmyer's "licensing records." The CFEC provided
these on April 27, 1989.
On April 25, 1989, the CFEC notified Widmyer that his request for a
hearing on his Southern fishery application had been granted. On September 28, 1989,
hearing officer Walters sent Widmyer notice that a hearing, covering both his Northern
and Southern applications, would be held on November 3, 1989 in Ketchikan. This
notice was sent by certified mail to Widmyer and was returned unaccepted. On
October 26, 1989, hearing officer Walters called Brinkman about the hearing. Brinkman
indicated that he had been unable to get in touch with Widmyer, presumably because
Widmyer was out fishing, and Brinkman was unsure whether Widmyer was aware of the
hearing. On November 1, Brinkman sent the CFEC a letter indicating he had received
a phone message from Widmyer requesting a later hearing.
The hearing nevertheless occurred on November 3, 1989, and Widmyer
attended.9 At the hearing, Widmyer claimed participation points for 1978, 1979, 1982,
and 1983 due to extraordinary circumstances. Widmyer stated that in 1977 he had
sustained an injury when he "got a ratfish spine under [his] kneecap" and could not
participate in either the Northern or Southern fisheries. Widmyer claimed that in 1978
his boat's transmission had failed and that this prevented his participation in either the
9 Due to a conflict, Brinkman was unable to attend, and after the hearing,
Brinkman sent a letter to the CFEC indicating that Widmyer wished to represent himself
to save money and that Brinkman was withdrawing as counsel.
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Northern or Southern fisheries. Widmyer claimed that in 1979 he had landed 4,000 to
5,000 pounds of "mixed grey cod and black cod" in the Northern fishery but that they
had spoiled before he could sell them. Widmyer claimed that in 1983 he could not
participate because of a mechanic's faulty repair to his hydraulic system.
Over the next year following the hearing, Widmyer submitted several
documents intended to substantiate his claims. On November 7, 1991, Widmyer called
the CFEC to inquire about his applications, and he told the CFEC that he would "get the
last of his evidence into the commission as soon as possible." On February 5, 1992,
Widmyer sent a handwritten letter to the CFEC, providing contact information for
individuals who might be able to verify his statements concerning 1978. Widmyer also
stated that he had no further evidence to submit.
C. Hearing Officer Decision
The CFEC took no action until September 18, 1997,10 when a new hearing
officer, Jonathon Sperber, was assigned to Widmyer's case following hearing officer
Walters's retirement. Hearing officer Sperber sent a letter to Widmyer listing the
documents in the record and confirming that Widmyer did not wish to add any new
documents. In September, October, and November of 1997, hearing officer Sperber had
several telephone conversations with Widmyer about the content of the record, and over
this period several new items were added to the record, including the testimony of
Widmyer's brother.
Hearing officer Sperber issued his written decisions for both the Northern
and Southern fisheries on November 21, 1997. Hearing officer Sperber awarded
Widmyer zero points for the Northern fishery. Regarding 1977, hearing officer Sperber
10 Widmyer applied for and received an interim use permit in 1988 to fish the
Northern fishery pending the resolution of his application.
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held that Widmyer had failed to produce sufficient evidence to substantiate his claim that
a ratfish spine injury prevented his participation in the fishery. For 1978, hearing officer
Sperber ruled that Widmyer had "failed to produce convincing evidence that he did not
participate in the 1978 fishery because of the transmission failure." Regarding 1979,
hearing officer Sperber found that Widmyer had proven that he caught 4,000 to 5,000
pounds of sablefish and gray cod, but held that because Widmyer had not proven
participation for 1982-84, his claim for 1979 need not be considered.11 For 1983, hearing
officer Sperber acknowledged that hydraulic failure could qualify as an extraordinary
circumstance but concluded that Widmyer had deliberately failed to repair the hydraulics
in order to preserve a breach of contract claim against the mechanic who negligently
repaired the system. Because hearing officer Sperber concluded that Widmyer did not
qualify for participation points in 1982-84, Widmyer was not eligible for economic
dependence points.12
Hearing officer Sperber awarded Widmyer 31 points for the Southern
fishery. Hearing officer Sperber found Widmyer to have landed 4,484 pounds of
sablefish in 1982 and awarded him 16 points for that year. Hearing officer Sperber
rejected Widmyer's claim for extraordinary circumstances in 1977, 1978, 1979, and
1983 for the same reasons that he rejected those claims in his ruling on the Northern
fishery. Hearing officer Sperber also awarded Widmyer 15 points for economic
dependence, for a total of 31 points.
11 In order to claim participation points for 1975-1981, an applicant must have
also received participation points for at least one of the years 1982, 1983, or 1984.
20 AAC 05.705(b); 20 AAC 05.707(b).
12 Under CFEC regulations, an applicant must receive participation points for
at least one of the years 1982, 1983, or 1984 in order to be eligible for economic
dependence points. 20 AAC 05.705; 20 AAC 05.707.
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D. Administrative Appeal
Widmyer, then represented by attorney Bruce Weyhrauch, appealed the
hearing officer's decision to the CFEC on March 23, 1998. Weyhrauch filed a brief
arguing that Widmyer was entitled to participation and economic dependence points.
The CFEC did not resolve Widmyer's appeal until December 2006. In its
decision on the Northern fishery, the CFEC awarded Widmyer zero points. The CFEC
concluded that Widmyer had not established extraordinary circumstances for 1977, 1978,
or 1983. The CFEC determined that, even if Widmyer may have demonstrated
extraordinary circumstances for 1979, he could not be awarded participation points for
that year since he had not participated in 1982-84.
In its decision on the Southern fishery, the CFEC affirmed hearing officer
Sperber's award of 16 points for participation in 1982 but held that Widmyer was
entitled to more points for economic dependence. The Limited Entry Act specifies that
priority should be assigned to fishers on the basis of "past participation" and "economic
dependence."13 CFEC regulations provide that economic dependence points can be
achieved in two ways: (1) investment in a fishing vessel and (2) dependence on the
fishery for income.14 Hearing officer Sperber had ruled that Widmyer was entitled to
15 points for economic dependence but no points for vessel investment. The CFEC
decided to award Widmyer the full amount of vessel investment points. But the CFEC
rejected Widmyer's extraordinary circumstances claims for 1977, 1978, 1979, and 1983.
The CFEC thus awarded Widmyer 46 points for the Southern fishery.
13 AS 16.43.250.
14 20 AAC 05.705(b); 20 AAC 05.707(b).
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E. Petition For Reconsideration
Widmyer filed a petition for reconsideration on May 14, 2007. Widmyer
attached several new affidavits and other documents and sought a new evidentiary
hearing at which witnesses would testify. The CFEC declined to allow additions to the
record and reaffirmed its decisions.
F. Superior Court Decision
Widmyer appealed to the superior court. The superior court affirmed the
CFEC, finding that Widmyer could not demonstrate extraordinary circumstances for
1977, 1978, 1979, or 1983. Widmyer appeals.
III. STANDARD OF REVIEW
The Limited Entry Act provides that "final administrative determinations
by the [CFEC] are subject to judicial review as provided in AS 44.62.560 - 44.62.570."15
Alaska Statute 44.62.560 and AS 44.62.570 are provisions of the Administrative
Procedure Act governing judicial appeals from administrative adjudications. Alaska
Statute 44.62.570 provides:
Inquiry in an appeal extends to the following questions: (1)
whether the agency has proceeded without, or in excess of
jurisdiction; (2) whether there was a fair hearing; and (3)
whether there was a prejudicial abuse of discretion. Abuse of
discretion is established if the agency has not proceeded in
the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported
by the evidence.
15 AS 16.43.120.
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In administrative appeals, we directly review the agency action in question.16 We review
the commission's factual findings under the substantial evidence standard.17 Substantial
evidence is "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."18 We apply a deferential "reasonable basis" standard of review
to an agency's interpretation of its own regulations.19
IV. DISCUSSION
A. Waived Points On Appeal
In his initial statement of points on appeal, Widmyer listed a challenge to
the CFEC's determination to deny him participation points for 1984 in the Southern
fishery and the CFEC's determination to deny him participation points for 1982 and
1984 in the Northern fishery. But Widmyer's briefs do not discuss 1982 or 1984,
focusing instead on the years 1977, 1978, 1979, and 1983. Thus, we address Widmyer's
arguments relating to those years in this appeal.20
B. Record Issues
Widmyer attempts to rely on evidence provided after the close of the
record. When Widmyer filed his petition for reconsideration with the CFEC, he attached
several new pieces of evidence, including affidavits of acquaintances. Widmyer attempts
16 Northern Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 633
(Alaska 2000).
17 Jones v. State, CFEC, 649 P.2d 247, 249 n.4 (Alaska 1982).
18 State, CFEC v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991) (quotingKeiner
v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)).
19 Bartlett v. State, CFEC, 948 P.2d 987, 990 (Alaska 1997).
20 We have explained that an issue not discussed in the appellant's briefs is
considered waived. See Kellis v. Crites, 20 P.3d 1112, 1115 (Alaska 2001).
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to rely on this evidence in his appeal to this court. The CFEC argues that the record was
closed and Widmyer could not add new evidence with his petition.
Widmyer makes two arguments to justify his use of this evidence. First,
he argues that the CFEC did in fact consider this evidence in its order on reconsideration.
Therefore, according to Widmyer, this evidence is part of the administrative record and
may be cited on appeal. Second, Widmyer argues that, if the CFEC did not consider this
new evidence, the CFEC abused its discretion.
1. The CFEC did not consider the new evidence in Widmyer's
petition for reconsideration.
Widmyer argues that the CFEC "did discuss that [new] evidence." But
when the CFEC issued its order on reconsideration, it explicitly stated that its decision
was based on the record as of December 4, 2006, the time of the original CFEC decision.
The CFEC decision itself also stated that the CFEC declined to "accept the additional
evidence offered as part of the Petition for Reconsideration." The CFEC also issued a
"supplemental" decision explicitly stating that it was excluding Widmyer's fish tickets
from after 1985.21 In light of these statements, we conclude that the CFEC did not admit
Widmyer's new evidence.
21 When a fisher sells a catch to a processor, the processor is required to
generate a record of this sale known as a fish ticket. 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 individual's or company's 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 . . . .").
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2. The CFEC could permissibly decline to consider the new
evidence submitted with Widmyer's petition for
reconsideration.
We next address the question whether, assuming that the CFEC did exclude
the new evidence in Widmyer's petition for reconsideration, it abused its discretion in
ignoring this new evidence. Widmyer argues that it would be an abuse of discretion for
the CFEC to exclude this evidence. Widmyer argues that the new evidence was
necessary because "the commission had misunderstood several important points."
The record establishes that Widmyer had ample opportunity to be heard.
He was afforded a hearing and multiple opportunities for appeal. He had over twenty
years to gather and present evidence. Widmyer also had adequate notice. Widmyer had
many opportunities to present evidence, and he could not have reasonably expected to
be able to present new evidence in his petition for reconsideration after so many earlier
opportunities.
Further, the hearing provided to Widmyer by the CFEC comported with the
Limited Entry Act. That act, which created the CFEC, included a provision governing
regulations and hearing procedures.22 The Limited Entry Act granted the CFEC the
power to promulgate regulations "necessary or proper in the exercise of its powers,"
including regulations covering the procedures used in hearings.23 The original version
of the Limited Entry Act also provided that "[c]ommon law rules of evidence apply to
investigations, hearings and proceedings before the commission, except when the
commission determines that their application is not required in order to assure fair
22 AS 16.43.110.
23 AS 16.43.110(a), (b).
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treatment of all parties."24 In 1981, the phrase "common law rules of evidence" was
changed to "Alaska Rules of Evidence."25 The legislative history does not include a
reason for this change.26 In 1984, the Alaska Legislature added a new subsection to this
provision, which provided that "[t]he commission shall adopt regulations to provide for
the correction of administrative error."27 The legislative history for this change does not
specifically discuss the procedural rules that are appropriate when the commission
reconsiders its own decisions.28
Taken as a whole, the Limited Entry Act, the subsequent amendments to
it, and the legislative history of the Act and its amendments indicate that the commission
has the power to regulate its own procedures.29 Nothing in the statute requires (or
prohibits) the acceptance of new evidence on the reconsideration of a commission
24 Ch. 79, § 1, SLA 1973.
25 Ch. 47, § 1, SLA 1981.
26 1981 Senate Journal 38.
27 Ch. 145, § 6, SLA 1984.
28 1983 House Journal 973 ("Section 3 of the bill instructs the commission to
adopt regulations governing the correction of its administrative errors, as, for example,
where an applicant has been mistakenly credited with points for vessel ownership when
the applicant did not own a vessel. This section will not allow the commission to undo
discretionary determinations made by previous members of the commission. Nor will
it require the commission to reopen closed applications when a court determines that the
commission has misinterpreted a statute or regulation.").
29 It should be noted that the Limited Entry Act expressly provides that the
Administrative Procedure Act does "not apply to adjudicatory proceedings of the" CFEC
except to the extent that an applicant has the right to appeal a CFEC determination to the
superior court. AS 16.43.120(a).
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decision. Therefore, the CFEC's decision to exclude Widmyer's new evidence was
permissible under the Limited Entry Act.
Finally, Widmyer's hearing was consistent with the administrative
regulations governing the CFEC. 20 AAC 05.1850 is titled "Reconsideration."
Subsection (b) provides, in part, that the CFEC "will grant reconsideration only if the
commission determines that a question of law, fact, or discretion exists that might lead
the commission to modify or reverse its final decision."30 The regulation does not
expressly address whether the CFEC is obligated to accept new evidence upon
reconsideration. The regulation does state that on reconsideration the commission will
consider factual questions, but the ability to examine questions of fact does not
necessarily require the acceptance of new evidence.31 We therefore conclude that it was
not an abuse of discretion for CFEC to decline to consider the new evidence.
C. Extraordinary Circumstances Claims
In Cleaver v. State, CFEC, a fisher sought "extraordinary circumstances"
points, and the administrative hearing officer applied a three-part test to determine
whether sufficient extraordinary circumstances existed:
(1) whether the applicant had the specific intent to participate
in the fishery, (2) whether he was prevented from doing so
due to some extraordinary circumstances, and (3) whether,
30 20 AAC 05.1850(b).
31 Cf. Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895
P.2d 497, 506 (Alaska 1995) (concluding that where "[the movant] effectively moved
the trial court to reconsider its ruling based upon evidence that was not before it at the
time it rendered its decision [on summary judgment]," it was not an abuse of discretion
for the trial court to deny the motion to reconsider because the movant "had ample
opportunity to secure the affidavits and depositions that it deemed necessary to oppose
the summary judgment motion" and "provided no explanation for the delay in presenting
the evidence").
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despite those circumstances, he made all reasonably possible
efforts to participate in the fishery.[32]
In Cleaver, we analyzed Cleaver's claim for extraordinary circumstances within this
three-part analysis.33 We have held that "the applicant bears the burden of establishing
qualification for all claimed points."34 We evaluate Widmyer's claims for each year
under this three-part test.
1. 1977
a. Intent to participate
Widmyer argues that he did intend to fish for sablefish in 1977 and that he
had recently installed gear appropriate to fish sablefish. We have previously held that
installing gear suited to harvesting a particular fish is indicative of intent.35 Widmyer
also points to an affidavit by an acquaintance, Lorie Kolanko, who stated that Widmyer
intended to fish sablefish in 1977.
The CFEC argues that Widmyer's statement of his own intent is not
credible. The CFEC, in a point that applies to all of Widmyer's claims, notes that
Widmyer has made numerous inconsistent statements over the course of the adjudication
32 48 P.3d 464, 468 (Alaska 2002).
33 Id. at 468-70.
34 Lewis v. State, CFEC, 892 P.2d 175, 183 (Alaska 1995); see also
20 AAC 05.520(a) ("Every applicant shall have the burden of establishing his
qualifications for an entry permit. Specific evidence will be requested on the application
form for that purpose. The commission may at any time require an applicant to submit
additional evidence in affidavit or other form relating to his qualifications."); 20 AAC
05.1820(d) ("The applicant or other party shall bear the burden of proving by a
preponderance of the evidence that a determination of the commission is erroneous.").
35 Suydam v. State, CFEC, 957 P.2d 318, 324-25 (Alaska 1998).
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of his application. The CFEC also argues that the Kolanko affidavit is very vague as to
dates or other specifics.
While Widmyer claimed to have acquired gear specifically for the purpose
of harvesting sablefish, he has provided no evidence of this. The only evidence of his
intent to fish in 1977 are his and Lorie Kolanko's statements. We have previously held
that a trier of fact may permissibly disregard a fisher's testimony of the fisher's intent to
fish since the "witness has an interest in the outcome of the case."36
b. Extraordinary circumstances
Widmyer argues that in 1977 an injury from a ratfish spine prevented him
from fishing. Widmyer, Paul Peterson (a "fishing colleague"), and Lorie Kolanko all
stated under oath that this injury prevented Widmyer from participating in either fishery.
The CFEC argues that there is no medical evidence confirming the ratfish injury. The
CFEC also argues that the Kolanko and Peterson affidavits are unspecific and do not
establish that Widmyer's injury was sufficiently serious to be an "extraordinary
circumstance."
CFEC regulations provide that extraordinary circumstances "include
temporary illness or disability," a category that presumably would include an injury like
Widmyer's.37 However, Paul Peterson's affidavit stated that the ratfish injury left
Widmyer "laid up for weeks," and Widmyer claims that he sustained the injury in
September, two months before the Northern and Southern fisheries closed. The CFEC
notes that Widmyer made a successful lingcod landing after his alleged September injury
but before the close of the sablefish fisheries. Widmyer counters that he does not recall
making this landing and that the fish ticket may be inaccurate. He also argues that it was
36 State, CFEC v. Baxter, 806 P.2d 1373, 1375 (Alaska 1991).
37 20 AAC 05.703(d).
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a very small landing and it may have been incidental to his ferrying friends on a hunting
trip. Nevertheless, there is sufficient evidence to support the CFEC's conclusion that,
even if Widmyer was injured in September, he still had time to participate in the fishery
later.38
c. Reasonable efforts
Widmyer argues that his physical impairment prevented any efforts to fish.
The CFEC responds that, since Widmyer's injury occurred well before the close of the
sablefish fisheries, Widmyer has not established that his failure to fish was reasonable.
Based on the evidence discussed above, we conclude that the CFEC was justified in
finding that Widmyer had not adequately demonstrated that he undertook reasonable
efforts to participate.
2. 1978
a. Intent
Widmyer's argument that he intended to fish in 1978 is supported by his
own testimony and Lorie Kolanko's affidavit. The CFEC argues that Widmyer's
testimony and the Kolanko affidavit are not credible. The CFEC notes that Widmyer
stated during his hearing that Kolanko was unlikely to remember the details of his
fishing.39
38 We have held in several cases that an event did not constitute an
extraordinary circumstance where time remained for the fisher to recover from the event
and still fish. See, e.g., Nelson v. State, 186 P.3d 582, 586 (Alaska 2008).
39 In a note to the CFEC, Widmyer wrote that "you may call Lorie
Kolanko . . . although she remembers nothing."
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b. Extraordinary circumstances
Widmyer argues that his boat's transmission failed in the fall of 1978 and
that this failure constituted an extraordinary circumstance.40 According to Widmyer,
repairing the transmission was quite time-intensive and prevented him from fishing for
sablefish. The CFEC notes that these transmission problems only lasted for six weeks at
most, and that the sablefish fisheries were open both before and after the six-week period
Widmyer experienced transmission problems.
We have previously determined that when an applicant had time to repair
a mechanical problem and then return to fishing, the mechanical problem did not
constitute an extraordinary circumstance. In Nelson v. State, CFEC, we affirmed the
CFEC's determination that mechanical problems had not constituted extraordinary
circumstances in part because "the sablefish fishery season was two and a half months
long" and "it was more than likely that [the applicant] had ample time to have a gear
failure and still get back to fishing after a repair."41
c. Reasonable efforts
Widmyer argues that it was reasonable for him not to fish while his boat
lacked a functioning transmission. The CFEC notes that there is no documentation of
Widmyer's transmission repairs and that Widmyer still had time to fish after the
transmission had been repaired. We conclude that the CFEC was justified in finding that
Widmyer did not prove that he undertook reasonable efforts to repair his transmission
and resume fishing.
40 In his appellant's brief, Widmyer states that his mechanical breakdown was
in the fall of 1978, but he had earlier stated the breakdown occurred in the spring.
41 186 P.3d at 586 (internal quotations omitted).
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3. 1979
The CFEC acknowledges that Widmyer's 1979 catch of sablefish and gray
cod did constitute participation in the Northern fishery but argues that Widmyer is not
entitled to participation points for 1979 because he did not receive any participation
points for 1982-84. Regarding the Southern fishery, the CFEC argues that Widmyer
does not deserve "extraordinary circumstances" participation points for 1979.
a. Intent
Widmyer's testimony and the affidavit of Jerry Heisler (Widmyer's
crewmember) support Widmyer's intent to fish the Southern fishery in 1979. The CFEC
argues that only Widmyer's own testimony and post-record evidence support Widmyer's
intent argument.
b. Extraordinary circumstances
Widmyer argues that, while he was able to land a large catch of sablefish
and gray cod in the Northern fishery, severe weather prevented him from depositing that
catch before it spoiled. Widmyer claimed that the weather caused Jerry Heisler to quit
upon docking in Ketchikan with the spoiled fish. Widmyer claims that the severe
weather and his sudden lack of a crewmember constituted extraordinary circumstances
that prevented him from fishing the Southern fishery. The affidavit of Lorie Kolanko
states that there was unusually severe weather in the fall of 1979. Widmyer also includes
contemporary newspaper accounts of severe weather.
The CFEC argues, correctly, that Widmyer's evidence on this issue was all
submitted after the close of the record. The CFEC also notes that Widmyer's current
argument that severe weather prevented his participation contradicted his earlier
statement that the severe weather only lasted "2 to 3 days." The CFEC further points out
that the newspaper accounts provided by Widmyer were published three weeks before
the end of the Southern fishery season.
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Even if Widmyer's new submissions in his petition for reconsideration are
considered, we conclude that the CFEC was correct that Widmyer did not establish
extraordinary circumstances. Widmyer testified that the vessel he owned at that time,
the GULF KID, was incapable of handling the usual weather in the sablefish fishery. We
have noted on several occasions that lack of appropriate equipment does not qualify as
an extraordinary circumstance.42
c. Reasonable efforts
Widmyer argues that his non-participation in the Southern fishery was
reasonable because of the severe weather and his lack of a sufficient crew. Regarding
the weather, we conclude that the CFEC was correct in finding that even if the weather
was severe enough to constitute an extraordinary circumstance, there was sufficient time
after the weather had passed for Widmyer to participate. Widmyer landed in Ketchikan
in September or October 1979, when Jerry Heisler quit. The Southern fishery closed on
November 15. It is not clear exactly how much time remained until closing, but it was
at least two weeks and probably closer to a month. In his petition for reconsideration,
Widmyer submitted several news articles documenting severe weather in Alaska. But
these news items are dated several weeks before the end of the fishery. We have
previously held that even if an extraordinary circumstance befalls a fisher, reasonable
efforts to participate are required if the fishery remained open for a significant amount
of time afterwards.43
42 Pasternak v. State, CFEC, 166 P.3d 904, 910 (Alaska 2007); Johnson v.
State, CFEC, Mem. Op. & J. No. 1199, 2005 WL 182959, at *5 (Alaska, Jan. 26, 2005);
Cleaver v. State, CFEC, 48 P.3d 464, 469 (Alaska 2002) ("[L]ack of experience and
appropriate equipment do not constitute extraordinary circumstances . . . .").
43 See Nelson, 186 P.3d at 586.
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As to Widmyer's lack of a crewmember, the CFEC argues that Widmyer
has provided no evidence that his failure to find a new crewmember was reasonable. The
CFEC notes that the affidavit of Jerry Heisler, the crewmember who quit, states that
Widmyer should have been able to find someone else to go with him. In interpreting the
reasonable efforts requirement, we have previously required applicants to prove that they
actually undertook reasonable efforts.44 In this context, that requirement obligates
Widmyer to prove at a minimum that he had tried to hire a crewmember.
4. 1983
a. Intent to participate
Widmyer argues that he intended to fish in both the Northern and Southern
fisheries in 1983. The CFEC argues that only Widmyer's own "self-serving" testimony
supports his intent to fish. The CFEC reiterates its arguments about Widmyer's lack of
credibility and notes that Widmyer never acquired a license in 1983 for sablefish.
b. Extraordinary circumstances
Widmyer argues that faulty repairs to his boat's hydraulic system prevented
his participation in both the Northern and Southern fisheries in 1983. Widmyer argues
that he lacked the funds necessary to repair the hydraulic system until he successfully
obtained a settlement for the faulty repair. The CFEC argues that Widmyer's statement
that he was able to fix the system in two hours belies his claim that this problem
prevented his fishing for sablefish. And the CFEC argues that to the extent Widmyer
elected not to fix the hydraulic system in order to preserve his lawsuit against the
mechanic, that was Widmyer's own choice. The CFEC maintains that Widmyer's
argument about being unable to afford the repair was only made in his petition for
reconsideration and was unsupported by any documentation.
44 See, e.g., Cleaver, 48 P.3d at 469-70.
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We have repeatedly held that an economic choice by the applicant not to
fish cannot qualify as an extraordinary circumstance.45 Similarly, we have determined
that the inability to pay for needed repairs does not qualify as an extraordinary
circumstance.46 Consequently, we conclude that the CFEC was correct in determining
that Widmyer failed to establish extraordinary circumstances.
c. Reasonable efforts
Widmyer argues that he aggressively sought the money to make the
necessary repairs to his hydraulic system. The CFEC maintains that Widmyer's
argument about lack of funds is unsupported by any evidence and that Widmyer's
election not to fix the hydraulic system was his own economic choice. As explained
above, we have held that an economic choice not to fish will not qualify the applicant for
extraordinary circumstances points. In Cleaver v. State, CFEC, we determined that an
applicant's failure to seek a loan to pay for needed repairs meant that the applicant had
not engaged in reasonable efforts.47
45 See May v. State, CFEC, 175 P.3d 1211, 1219 (Alaska 2007); Johnson,
Mem. Op. & J. No. 1199, 2005 WL 182959, at *5; see also Younker v. State, CFEC, 598
P.2d 917, 923 (Alaska 1979) ("The circumstances surrounding [applicant's] failure to
gill net in 1971 were not unavoidable. He could have quit his teaching job and entered
the gill net fishery on the F/V LINDA MARNELL . Instead, he made his election to forego
gill netting. While it may have been a sensible election, it was not the only one available
to him.").
46 Cleaver, 48 P.3d at 469.
47 Id. at 469-70.
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D. Economic Dependence Points
CFEC regulations provide that an applicant is eligible for economic
dependence points if the applicant can prove participation (or extraordinary
circumstances) in 1982, 1983, or 1984.48 The CFEC found that Widmyer participated
in the Southern fishery in 1982 and awarded him the full amount of economic
dependence points. The CFEC found that Widmyer did not participate in the Northern
fishery in 1982, 1983, or 1984, and the CFEC accordingly declined to reach the issue of
whether Widmyer was entitled to economic dependence points in the Northern fishery.
Widmyer argues that extraordinary circumstances prevented his participation in the
Northern fishery in 1983. Widmyer maintains that if we find extraordinary
circumstances to exist in 1983, this case must be remanded to the CFEC to consider
whether Widmyer is entitled to economic dependence points in the Northern fishery. But
because we affirm the CFEC's determination that Widmyer did not establish
extraordinary circumstances for 1983, we need not reach this question.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court's decision
upholding the CFEC determination in all respects.
48 20 AAC 05.705(b); 20 AAC 05.707(b).
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