Commercial Fisheries Entry Commission v. Apokedak, 4464

• Decision Date: 05 February 1980
• Docket Number: No. 4464,4464
• Parties: COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Appellant, v. John E. APOKEDAK, Appellee.
• Court: Alaska Supreme Court

Page 1255

606 P.2d 1255

COMMERCIAL FISHERIES ENTRY COMMISSION, State of Alaska, Appellant, v. John E. APOKEDAK, Appellee.

No. 4464.

Supreme Court of Alaska.

Feb. 5, 1980.

Jonathan K. Tillinghast, Asst. Atty. Gen. and Avrum M. Gross, Atty. Gen., Juneau, for appellant.

James G. Robinson, David B. Snyder, and Joel Bolger, Alaska Legal Services Corp., Dillingham, for appellee.

J. P. Tangen and Pamela L. Finley, Robertson, Monagle, Eastaugh & Bradley, Juneau, for Eugene Anderson, et al., as amici curiae in support of appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER and BURKE, JJ., and DIMOND, Senior Justice.

OPINION

BOOCHEVER, Justice.

In 1973, the Alaska legislature passed an act authorizing a commission to regulate entry into the commercial fisheries for all fishery resources in the state (hereinafter Limited Entry Act). ¹ The Act specified that after January 1, 1974, "no person may operate gear in the commercial taking of fishery resources without a valid entry permit or a valid interim-use permit issued by the commission." ² Only persons who had harvested fishery resources commercially while participating in the fisheries as holders of gear licenses are eligible to apply for entry permits. ³

Apokedak was a commercial fisherman who had never owned a gear license. He appealed to the superior court a decision of the Commercial Fisheries Entry Commission (hereinafter Commission) denying him a permit, contending that: (1) the refusal to accept his application was in violation of the mandate of Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); (2) he was in fact a gear license holder within the meaning of AS 16.43.260 by virtue of his joint venture or partnership with a gear license holder, George Wilson, in 1970 and 1971; (3) the gear license requirement is unconstitutional as a violation of the equal protection clauses of the United States and Alaska Constitutions; and (4) the Commission's regulation requiring a gear license for income dependence points is invalid. ⁴

Based upon its interpretation of Isakson v. Rickey, 550 P.2d 359 (Alaska 1976), the superior court held that AS 16.43.260(a) violated the equal protection clause of the state and federal constitutions insofar as it required an applicant for an entry permit to show that he had previously held a gear license. The superior court remanded Apokedak's application to the Commission for reconsideration.

The Commission appealed the superior court's decision to this court. ⁵ The Commission argues on appeal that:

(1) Apokedak's appeal to the superior court was untimely filed under Appellate Rule 45 and, therefore, should have been dismissed.

(2) Isakson v. Rickey did not in fact invalidate the gear license requirement contained in AS 16.43.260(a).

(3) The gear license requirement contained in AS 16.43.260(a) does not violate the equal protection clause of the state or federal constitutions.

(4) The Commission's regulations, which limit the award of certain "hardship" points only to gear license holders, do not exceed the statutory delegation of authority to the Commission and do not deprive Apokedak of equal protection of the laws.

We hold that the superior court did not abuse its discretion in waiving the rules and accepting Apokedak's untimely appeal in view of the peculiar circumstances of this case; ⁶ that Isakson did not invalidate the gear license requirement of AS 16.43.260(a); and that the gear license requirement does not violate the equal protection clauses. We do not pass on the validity of the Commission's regulations and the question of whether Apokedak was in fact a gear license holder.

I. HISTORICAL OVERVIEW

Before embarking on an equal protection analysis, it is necessary to examine prior decisions concerning Alaskan efforts to limit entry into the fisheries. In 1961, an act was passed authorizing the Board of Fish and Game to determine an "optimum" run for the various salmon fishing areas in the state. When the yearly run was substantially less than the optimum, so that Alaska residents licensed to fish in that area could not catch sufficient fish to sustain them for the year, the act authorized the Board to promulgate regulations temporarily closing the area to nonresident fishermen. ⁷ In an action brought by nonresident fishermen, the law was declared to be invalid by a three-judge federal court as violative of the United States Constitution's privileges and immunities, and commerce clauses, as well as the Alaska Constitution's equal protection and due process clauses. ⁸

The next legislative enactment did not differentiate as to nonresidents in the manner of the 1961 law. Chapter 186, SLA 1968 limited issuance of salmon net gear licenses to persons previously holding a salmon gear license for the specific salmon registration area, or holding a commercial fishing license for three years, who, while so licensed, actively engaged in commercial fishing in that area. In Bozanich v. Reetz, 297 F.Supp. 300 (1969), rev'd, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), the law was held to be invalid by a three-judge federal court. With reference to equal protection, the court stated:

Although a state may enact fishing regulations in the legitimate interests of conservation and safety, it may not, to achieve those ends, employ arbitrary and irrational means which create or protect local, monopolistic interests. Under the scheme, entry into the salmon fishing industry is controlled not by the state, but by local fishermen in each area who are eligible for gear licenses and can choose among the commercial fishermen, if any, that they might wish to hire. The power to permit competition cannot be vested in private interests whose own benefit would ordinarily not be served by assisting potential competitors to qualify.

We are convinced that the Alaska scheme cannot meet the equal protection requirements set forth in Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485, wherein the Supreme Court struck down another invidious classification in legislation concerning economic regulation. ⁹

Reetz appealed to the United States Supreme Court which held that the trial court should have abstained from deciding the federal questions until Alaska courts could decide whether the act violated article VIII, section 15, of the Alaska Constitution. ¹⁰ That section prohibits creation of an exclusive right or special privilege of fishery. The case was next heard by the Alaska Superior Court which held, inter alia, that the act violated the prohibition against creation of an exclusive right or special privilege of fishery. ¹¹

Shortly thereafter, in 1972, Alaska's Constitution was amended by adding to article VIII, section 15, the following:

This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State.

In 1973, the Limited Entry Act was passed. Its stated purpose is set forth in AS 16.43.010 as follows:

Purpose and findings of fact. (a) It is the purpose of this chapter to promote the conservation and the sustained yield management of Alaska's fishery resource and the economic health and stability of commercial fishing in Alaska by regulating and controlling entry into the commercial fisheries in the public interest and without unjust discrimination.

(b) The legislature finds that commercial fishing for fishery resources has reached levels of participation, on both a statewide and an area basis, that have impaired or threaten to impair the economic welfare of the fisheries of the state, the overall efficiency of the harvest, and the sustained yield management of the fishery resource.

In Isakson v. Rickey, 550 P.2d 359 (Alaska 1976), the 1973 Act was challenged on equal protection grounds. In Isakson, a group of fishermen challenged the Limited Entry Act, ¹² focusing on AS 16.43.260(a), which provided, prior to its amendment: ¹³

The commission shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses . . . before January 1, 1973. ¹⁴

In the nineteen salmon fisheries which first came under the Limited Entry Program, ¹⁵ applications for entry permits were not accepted until December, 1974. ¹⁶ Thus, nearly two years elapsed between the time of the gear license cut-off date of January 1, 1973, and the time entry permits began to be issued. As noted in Isakson, persons who had sold their vessels and gear and had abandoned fishing were entitled to receive entry permits, but some of those people who were actively fishing in the seasons just prior to the time entry permits were issued could not even apply. Id. at 365. The plaintiffs in Isakson were salmon fishermen who became gear license holders after January 1, 1973, in those fisheries which were designated for limited entry in 1974. We stated:

The plaintiffs below appeal the trial court's decision, contending that the date utilized in AS 16.43.260(a) violates the equal protection clause of the Fourteenth Amendment to the United States Constitution . . . .

550 P.2d at 361 (emphasis added). ¹⁷ The plaintiffs in Isakson specifically challenged the cut-off date for applying, not the requirement that applicants be holders of gear licenses. They were holders of gear licenses. Their interest was in having the cut-off date declared invalid so that they might qualify for the pool of "gear licensees" who would then be considered for entry permits on the basis of hardship criteria.

The precise issue was framed in the following terms:

(T)he question presented is whether the circumstance of holding a gear license before January 1, 1973, bears a fair and substantial relation to the purpose sought to be advanced by AS 16.43.260(a), when examining intensively...