Copeland v. State, Cfec
| Decision Date | 21 September 2007 |
| Docket Number | No. S-12275.,S-12275. |
| Citation | 167 P.3d 682 |
| Parties | Steve COPELAND, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee. |
| Court | Alaska Supreme Court |
Michael Hough, Homer, for Appellant.
Laura C. Bottger, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI, Justices.
This appeal arises out of the Commercial Fisheries Entry Commission's (CFEC's) denial of a limited entry fishing permit to Steve Copeland. Copeland applied for and was denied a limited entry permit in the Prince William Sound Purse Seine salmon fishery. He appealed the denial to the superior court, which affirmed CFEC's decision to deny the permit.
When the superior court acts as an intermediate court of appeal, we independently review the merits of the administrative decision.1 When reviewing an agency's interpretation of its own regulation, we apply the reasonable basis standard.2 We defer to the agency unless its "interpretation is `plainly erroneous and inconsistent with the regulation.'"3 When reviewing a decision based on factual findings, we apply the substantial evidence test.4
After a careful review of the parties' briefs and arguments, we concur in the superior court's determination that CFEC's regulatory interpretations were reasonable and that its factual findings were based on substantial evidence. Because the court's thoughtful decision on appeal correctly upheld CFEC's determination, we adopt the superior court's decision, attached as an appendix, in its entirety. Because that decision does not separately address Copeland's claim for past participation points as distinct from his claim for special circumstances income dependence points, we briefly address that issue.
CFEC's regulations provide for an award of past participation points based on a showing that "unavoidable circumstances" prevented an applicant from participating in the fishery.5 Copeland contends that CFEC abused its discretion when it refused to award him past participation points for crewman participation in 1970. He claims he did not participate in 1970 due to domestic problems and appears to suggest that he should have been granted "unavoidable circumstances" points. In its final decision, CFEC noted that Copeland had offered testimony that he did not participate in 1970 because of a poor prediction for the fishery and because he was doing well in another fishery. CFEC reasoned that Copeland's decision not to participate "may have been a sound business decision" but concluded that Copeland failed to establish that circumstances beyond his control prevented participation.
In Alaska Commercial Fisheries Entry Commission v. Russo, we noted that the unavoidable circumstances clause "requires both uniqueness and unavoidability."6 Based on these requirements, we upheld a CFEC interpretation "limiting application of the clause to cases where fishermen are prevented from fishing by circumstances beyond their control."7 In Younker v. Alaska Commercial Fisheries Entry Commission, we upheld CFEC's denial of unavoidable circumstances points to an applicant who did not participate in a gillnet fishery.8 We reasoned that the applicant's circumstances were not unavoidable where he elected to pass up gillnetting because purse seining was more lucrative.9 The applicant's choice "may have been sensible," but "was not the only one available to him."10
As in Younker, the record in this case suggests that Copeland made a sensible but avoidable decision not to participate in 1970. Copeland testified in 1976 that he did not participate because "it was just a real poor forecast." The hearing officer asked if there were any other reasons, to which Copeland responded "I did ... very good gillnetting late on the flats .... and, as a rule when it's a good summer season gillnetting, you can make more money doing that than crewing on a seine boat[.]" Copeland offered additional testimony regarding 1970 during his second hearing, in January 1981. He explained his lack of participation in 1970 as follows:
Well, for one reason my wife was here and I was gillnetting summer reds on the flats ... and I was doing quite well and my wife was fishing with me. I didn't live in Cordova at the time. . . . I would have had to ... [send] my wife home [and].... it would have put a lot of strain on our relationship. . . . I was doing quite well gillnetting summer reds on the flats and 1970 was a very poor seine season.
Based on Copeland's testimony in 1976 and 1981, substantial evidence supports CFEC's determination that Copeland was not prevented from fishing by circumstances beyond his control.
For this reason and those contained in the superior court's decision on appeal, we AFFIRM the superior court's decision.
EASTAUGH, Justice, not participating.
It used to be that anyone with the gear and an attitude could drop a net and seek to harvest salmon in Alaska waters. That changed in 1973, with passage of a law that limited entry to those who could prove their past participation and economic dependence upon a specific fishery.2 A point system was developed3 to implement these criteria, based on one's fishing history in the years 1960-72. Steve Copeland came up one point short of the 17 necessary to obtain a Prince William Sound purse seine permit, and so appeals. He argues primarily that the Commission erred in its application of the "special circumstances" regulation,4 and ignored the mandate of an earlier superior court decision.
Introduction to limited entry and Mr. Copeland's fishing history
There are reasons, not all of them the best, for why this case took 30 years to reach this point. The point system was designed to measure the hardship that a gear license holder would suffer from exclusion from the fishery — those fishing as crew do not need a limited entry permit5 — and so was complex by nature, and particularly so in this case. Points for the then-recent years of 1971 and 1972 counted more than 1969-70, which in turn offered more possible points than earlier years.6 But the Prince William Sound purse seine fishery was mostly closed in 1972, so the Commission didn't award points to anyone for that year,7 on the theory that this would be fair, since it impacted all applicants equally. Mr. Copeland's argument, at least in part, and Judge Madsen's 1980 opinion, is that this didn't quite work in his case, because of the way the Commission interpreted its regulations. A closer look at his actual fishing history is necessary to understand this argument; there are several good statements of this history in the record. (I see no need to review the procedural history in depth, as it is recited at several places in the record and set forth in the briefing.)
Mr. Copeland fished in both the purse seine and drift gillnet fishery with his father in 1963 and 1964, starting around the time he turned 16. (Applications for each of these fisheries are distinct; Mr. Copeland first held a gear license for drift gillnetting in 1965, and he did receive an entry permit into this fishery.) He also crewed in the purse seine fishery in 1965 and 1966. After the 1966 season, Mr. Copeland and Martin Van Slageren got together and purchased an old wooden boat, so they could purse seine together in the years to come, although Mr. Copeland didn't actually hold a gear license in his own name until 1973. The two fished together in 1967, but not in 1968, when Mr. Copeland crewed on board another boat. They then fished together again in 1969, and Mr. Copeland was awarded points for half ownership of the boat. His partner received the extra point for holding the gear license, and no points were awarded anyone for income dependence in that year.
In 1970 Mr. Copeland did not participate in the purse seine fishery and did not receive any points. The reasons for this are discussed extensively in the record, and, unfortunately for Mr. Copeland, this is the year that the Commission chose to award the points that couldn't be claimed in 1972 because the fishery was essentially closed in that year. He sold his seine in 1970, and mostly gillnetted the following year, but he did receive a point for his 1971 participation as a crewman in the purse seine fishery. Appellant was also able to up the three points he received for being half owner of the boat he owned with Mr. Van Slageren to six, based on his full ownership of another skiff, and he successfully defended an attack on the four points he had for the lack of availability of alternative occupations, which turned on exactly where he called home on December 31, 1972. Resolution of these issues also contributed to some of the early delay in this matter, as did turnover among CFEC hearing officers, the first appeal to superior court, and reconciliation with the various supreme court decisions that were issued during this period. As noted earlier, the cumulative effect of all of this was to leave Mr. Copeland one point shy of the 17 points ultimately determined to be necessary to qualify for a permanent entry permit into the PWS purse seine salmon fishery. Interim use permits are issued to applicants whose cases are still under review and claiming sufficient points to qualify.
Summary of Mr. Copeland's claim for special circumstances points
For the years in question, there is little doubt that a high percentage of Mr. Copeland's income was derived from the Prince William Sound salmon fishery. But a combination of circumstances — his participation in the gillnet fishery, the intermittent nature of his partnership, the fact that he didn't purse seine in 1970 and the...
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