Alaskan Fishery Commission Followed Proper Procedure to Limit Entry

Simpson v. Alaska, 2004 Alas. LEXIS 138 (Alaska Nov. 19, 2004).

Stephanie Showalter

Following a challenge by a disgruntled fisherman, the Alaska Supreme Court recently held that the Alaska Commercial Fisheries Entry Commission (CFEC) followed proper procedures when it established the maximum number of permits for the Northern Southeast Inside sablefish longline fishery at seventy-three.

Background
Although Article VIII, Section 15 of the Alaskan Constitution declares “no exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State,” the state may limit entry into a particular fishery for conservation purposes or to prevent economic distress to those dependent on the fishery. If the CFEC finds that a particular fishery has reached levels of participation which require the limitation of entry in order “to promote the conservation and the sustained yield management of Alaska’s fishery resource and the economic health and stability of commercial fishing,”1 the CFEC is required to establish a maximum number of entry permits for that fishery.2 Permits are distributed pursuant to a ranking system developed by CFEC which is unique to each fishery.

Concerned that the health of the sablefish (lingcod) fishery was suffering due to overfishing, the CFEC limited participation in 1985. The maximum number of permits was set at seventy-three, despite the recommendation of the Alaska Department of Fish and Game that the maximum be set around thirty or forty. A point system was developed to rank applicants based on past participation in the fishery and economic dependence.

Steven Simpson applied for a limited entry permit for the sablefish fishery in 1987. In his application he claimed a total of 65 points out of 100 for participation as a skipper in 1983 and 1984, income dependence, and vessel investment. After an initial finding of 32 points, which Simpson challenged through administrative channels, the CFEC determined that he was entitled to 50 points - seventeen points for past participation as skipper in 1983, three for past participation as crew member in 1984, and fifteen points each for vessel investment and income dependence. Simpson was denied a permit, however, because applicants with 50 or fewer points did not rank high enough to qualify. Simpson appealed the permit denial to the Alaska Superior Court in 1999. The Superior Court affirmed the findings of the CFEC and Simpson appealed.

Number of Permits
On appeal, Simpson argued that the CFEC set the maximum number of permits for the sablefish fishery too low, claiming the number was inconsistent with the Limited Entry Act’s requirement that limiting entry must be accomplished without unjust discrimination. While the Alaska Limited Entry Act of 1973 states that the maximum number for distressed fisheries “shall be the highest number of units of gear fished in that fishery during any one of the four years immediately preceding January 1, 1973,”3 the Act does not provide guidelines for setting the maximum number of permits for non-distressed fisheries such as the sablefish fishery. In Johns v. CFEC, however, the Alaska Supreme Court found that because the legislature intended the number of permits initially issued to reflect present use, the CFEC could not establish a maximum number lower than the highest number of vessels participating in the fishery in the four years preceding the limitation date.4 In the present case, the Supreme Court reaffirmed its ruling in Johns, “expressly hold[ing] that for a non-distressed fishery CFEC must set the maximum number at a level that is no lower than the highest number of units of gear fished in any one year of the four years prior to the limitation of the particular fishery.”5 The CFEC therefore did not err by establishing the number of permits for the sablefish longline fishery at seventy-three, the highest number during the preceding four years.

Optimum Number
After the CFEC determines the maximum number of permits for the fishery, it must then determine the optimum number of permits “based upon a reasonable balance of the following general standards: (1) the number of entry permits sufficient to maintain an economically healthy fishery . . . (2) the number of entry permits necessary to harvest the allowable commercial take . . . [and] (3) the number of entry permits sufficient to avoid serious economic hardship to those currently engaged in the fishery.”6 The optimum number may be higher or lower than the maximum number. If the optimum number and maximum number are different, the state must take action to bring the two numbers in line by either issuing or buying back permits.

The CFEC established the optimum number at seventy-three. Simpson claimed that based on the above factors, the optimum number should be set at 109. The court disagreed because the Department of Fish and Game presented evidence to the CFEC that indicated the fishery was in trouble and that even seventy-three permits would be too many to maintain a sustainable catch. The CFEC’s decision to set the number at seventy-three and not higher was therefore reasonable and consistent with the Limited Entry Act.

Skipper Participation Points
Simpson also claimed that the CFEC erred in denying him skipper participation points for 1984. To receive points for past participation as a skipper, an individual must have harvested the resources as a skipper, defined as “a gear operator who . . . was licensed according to the following: (i) for the years 1978-1984 had, at the time the skipper participation occurred, a valid sablefish interim-use permit for the fishery for which the applicant is applying.”7 Simpson admitted in his affidavit that he had failed to secure an interim-use permit in 1985. Apparently, he had forgotten to get the required permits until the day before the opening and was forced to sell the fish under a crew member’s license. The court found that CFEC’s decision not to award Simpson past participation points for 1984 was neither erroneous nor contrary to the law.

Conclusion
The Supreme Court affirmed the decision of the lower court. The CFEC was not arbitrary or capricious when it set the maximum and optimum number of permits for the sablefish longline fishery at seventy-three or when it denied Simpson skipper participation points for the 1984 season.

Endnotes
1. Alaska Stat. § 16.43.010.
2. Id. § 16.43.240(b).
3. Id. § 16.43.240(a).
4. 758 P.2d 1256, 1261-62 (Alaska 1988).
5. Simpson v. Alaska, 2004 Alas. LEXIS 138 at *14 (Alaska Nov. 19, 2004).
6. Alaska Stat. § 16.43.290.
7. Alaska Admin. Code, tit. 20, §§ 05.705 and 05.713(9).