Kalmakoff v. State, Commercial Fisheries Entry Com'n, 7767
| Decision Date | 11 January 1985 |
| Docket Number | No. 7767,7767 |
| Citation | 693 P.2d 844 |
| Parties | Artemie KALMAKOFF, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee. |
| Court | Alaska Supreme Court |
Craig J. Tillery and Wilson A. Rice, Reese, Rice & Volland, P.C., Anchorage, for appellant.
Sarah Forbes, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.
Nine years ago, Artemie Kalmakoff applied for a limited entry permit for the Chignik purse seine salmon fishery. The Commercial Fisheries Entry Commission denied his request and the superior court affirmed this denial. On appeal, he attacks the Commission's factual findings and parts of the point system that is used to determine who receives permits. We affirm in part, reverse in part, and remand for further proceedings.
After it received Kalmakoff's application, the Commission's staff eventually decided that he should be awarded seventeen points. 1 He had fished as a gear license holder from 1960 through 1966 (7 points), and fished as a crewman on other people's boats from 1967 through 1972 (6 points). Because he had been living in Ivanof Bay, an isolated village in a primarily rural census district, he received four points on the ground that alternative occupations to fishing were not readily available. Points for consistent participation as a gear license holder, investment in gear, and income dependence on the fishery were not awarded. Thus, Kalmakoff was classed at seventeen points, three short of the number needed for a permit. 2
He challenged this classification and presented his claims at an administrative hearing on March 19, 1979. More than 20 months later, the hearing officer issued a recommended decision, rejecting Kalmakoff's claims for points for gear ownership and for income dependence. The gear ownership claim depended on Kalmakoff's alleged ownership of a usable purse seine, including a usable net, on January 1, 1973. See 20 AAC 05.630(b)(3)(C). The income dependence claim depended, at the administrative stage, on Kalmakoff's assertion that he had been a de facto gear license holder during 1972, and that this entitled him to income dependence points under the Commission's regulations and interpretive decisions. See 20 AAC 05.630(b)(1). 3 The Commission adopted the hearing officer's recommended decision on November 19, 1981. The superior court affirmed that decision and rejected Kalmakoff's attack on the regulations. This appeal followed.
Initially, Kalmakoff asserts that the Commission denied him a meaningful opportunity to be heard. We disagree. Formally, the Commission did all it should have done. It supplied Kalmakoff with copies of settlement sheets, which record transactions between fishermen and buyers. It wrote him thirty days before the scheduled hearing, informing him that he had a right to have an attorney or other representative present at the hearing, instructing him of other rights, and offering help in locating evidence. The Commission did not tell him that he could bring a translator if he needed one, but there is no indication in the record that it knew or should have known, before or even during the hearing, that Kalmakoff's command of English was inadequate. At the hearing, Kalmakoff was accompanied by members of his family and a personal representative. Although the hearing officer asked the Kalmakoff family "not to assist Mr. Kalmakoff in his answering," the hearing officer later allowed Mrs. Kalmakoff to translate a question, asked extensive questions of his own, and heard testimony from Joe Kalmakoff, Mr. Kalmakoff's son. Thus, our review of the record does not reveal a denial of due process.
In itself, we see no constitutional violation in the Commission's failure affirmatively to provide an attorney or an interpreter for Kalmakoff. No one requested such assistance. Kalmakoff was told that he had the right to have an attorney present. He did not exercise this right, choosing instead to have at the hearing a non-attorney as his personal representative. 4 Nor is it obvious to us that the lack of an interpreter denied Kalmakoff due process of law. When translation was necessary, Mrs. Kalmakoff did the translating. Further, review of the recording of the hearing leads us to agree with the Commission that Mr. Kalmakoff's faulty memory, rather than his lack of fluency in English, was primarily responsible for his testimony being incomplete and ambiguous.
Limited Entry, unlike, for example, Social Security Disability Insurance, is not a benefit program for which hearing officers have an affirmative duty to develop the evidence. Due process considerations underlie a hearing officer's duty to ensure that a full and fair hearing takes place only if the benefit which a program provides is vitally important to those eligible for it. 5 A limited entry permit, while economically important to the person who applies for it, does not usually stand between that person and destitution. Assuming for purposes of argument that the hearing officer could have done more to assist Kalmakoff in remembering events which might have supported his point claims, we hold that this failure does not in and of itself constitute a denial of due process of law.
Artemie Kalmakoff bought a purse seine in 1963 or 1964. If the seine was "used or to be used" in the Chignik fishery as of January 1, 1973, he should have received three gear ownership points under 20 AAC 05.630(b)(3)(C). 6 The hearing officer's findings and conclusions are as follows:
Applicant's son testified that he used his father's purse seine in the Chignik purse seine fishery in 1969, that after that season the seine was stored, and then cut into pieces for use in the subsistence fishery sometime before 1972. Applicant testified that he used the old lead and cork lines and new webbing to construct a seine for the Chignik purse seine fishery in 1974. No bill of sale nor depreciation schedules were introducted [sic] evidencing seine ownership as of January 1, 1973.
....
Applicant's claim of gear ownership under 20 AAC 05.630(b)(3)(C) must fail because of the testimony at hearing. As detailed in Case File 75-324 (currently under Commission consideration), 20 AAC 05.630(b)(3) requires that in order to receive gear ownership credit an applicant must have owned gear as of January 1, 1973, that was used or to be used in the fishery for which application is made and that "gear" in the salmon net fishery includes the net.
The testimony at hearing established that the gear in question, a purse seine, was, "cut up for subsistence" before 1972 and that the old lines were reused in 1974. It must be concluded, therefore, that the net portion of the seine was cut up before 1972 since the lines were capable of being used on a full seine in 1974. Consequently, I recommend that no points be awarded for gear ownership because as of January 1, 1973, applicant did not possess gear as defined by 20 AAC 05.630(b)(3)(C).
(Emphasis added).
In our view substantial evidence does not support crucial parts of these findings. 7 According to the transcript, Artemie Kalmakoff's own testimony was ambiguous:
Q. In 1972, was the web still good on the seine that you had?
A. Yes.
Q. Why did you decide to replace it in 1974?
A. It snagged (indisc.) buy a new one yet.
Q. When did it snag up and tear up, can you remember?
A. In '72.
Q. In '72?
A. I don't remember?
Q. You don't remember. Was it used in 1973?
A. I don't remember.
Q. Okay, you don't remember....
The tape from which the transcript was made shows that Kalmakoff did not, in fact, say that the webbing snagged or tore up "in '72." What he actually said is unclear; the hearing officer may well have thought that he said "in '72," but the next question and answer should have established that he had said something else.
When Artemie Kalmakoff's son, Joe, testified, the interchange is easier to understand but not much more enlightening:
Q. And after you used the seine in '69, you say you stored it.
A. Um-hum.
Q. And then it was used after that in subsistence.
A. It was mostly subsistence.
Q. How? Was it cut apart....
A. Yeah, it was all cut up.
Q. The web was used?
A. Yes.
Q. Can you remember what years when it was used?
A. There's still little pieces laying around.
Q. What shape was the webbing in in 1972?
A. It was pretty well used up.
Q. The lines were there but the webbing had been cut off of it?
A. In '72?
Q. Um-hum.
A. Or what year?
Q. In '72.
A. Well it's still physically down there in just little chunks, you know, so--up in the (indisc.--simultaneous speech).
Q. That's the original web?
A. Yeah.
Q. What shape was it in in '72? The same shape as it is now?
A. It's pretty hard to say. It's used anyhow.
Q. But it had been used, say, before '72 for subsistence fishing?
A. Yeah, and it was used by my dad, I guess, in his fishing at Chignik, St. George.
In our view the evidence the hearing officer heard was far less definite than the conclusions he drew. His conclusions depend on his factual finding that the net had been "cut up for subsistence" before 1972. Joe Kalmakoff did not, however, testify that the net had been cut up before 1972. He said that the net had been cut up, but twice failed to say when this had occurred. Nor did his father's testimony establish when this happened. And, the fact that the net had been used for subsistence fishing before 1972 does not in itself show that it had been cut up before 1972. It is possible to fish for one's subsistence with commercial gear. As far as the testimony itself is concerned, we conclude that there is no substantial evidence in the record that the net was not usable in 1973. 8
On the other hand, the testimony does not show that the net was usable, and we think a holding that Kalmakoff had not carried his burden of proof on the issue would, on this record,...
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