Fishermen in Federal Waters Need State Permit to Land Catch in Alaska

Alaska v. Dupier, 2005 Alas. LEXIS 123 (Alaska Aug. 12, 2005).

Stephanie Showalter

The Alaska Supreme Court recently held that the Commercial Fisheries Entry Commission (CFEC) did not exceed its authority when it required federally permitted fishermen to possess state interim-use permits to land their catches. The decision was contrary to the earlier holdings of the District Court and Court of Appeals.

Background
John Dupier, Rodman Miller, and Philip Twohy hold Individual Fishing Quotas (IFQs) to fish for halibut and sablefish in federal waters off Alaska. In 2001, the three fishermen separately attempted to land fish caught in the Exclusive Economic Zone (EEZ) in Alaska. The men did not possess any state permits. The CFEC charged them with “possessing commercially taken fish in state waters without having a valid interim-use permit.”1

In Alaska it is unlawful to “operate gear in the commercial taking of fishery resources without a valid entry permit or a valid interim-use permit issued by” the CFEC.2 For non-limited entry fisheries, the CFEC is required to issue interim-use permits to “all applicants who can establish their present ability to participate actively in the fishery.”3 If a fishermen does not hold a limited entry permit or interim-use permit, he may not deliver or land fish in Alaska unless he holds a valid federal permit and has been issued a landing permit by the CFEC.4 The CFEC may only issue landing permits after the Commissioner of the Fish and Game “has made a written finding that the issuance of landing permits for that fishery is consistent with state resource conservation and management goals.”5 The CFEC has never issued landing permits.

Interim-Use vs. Landing Permits
The statutory permitting regime seems straightforward on paper. In practice, it has been anything but. For fishermen fishing in state waters, the process is pretty clear. But what about fishermen operating outside of state waters? There are a number of federal fisheries in Alaska, including salmon, halibut, and sablefish. According to Alaska Stat. § 16.05.675, if fishermen want to land fish caught in federal waters, the fishermen must possess a federal permit (which authorizes the harvest) and a landing permit to land their catch.

Unfortunately, landing permits have never been issued by the CFEC. The Department of Fish and Game has yet to issue regulations authorizing the CFEC to issue landing permits. To fill this gap, the CFEC requires federally permitted fishermen to obtain interim-use permits even though the fishermen have no intention of fishing in state waters. The CFEC regulations state that “it is unlawful for any person to possess within water subject to the jurisdiction of the state, any fish or shellfish, taken for a commercial purpose, . . . unless the person has in his possession a valid interim-use or entry permit card. . .”6 “A person reporting a landing of fish under a federal individual fishing quota (IFQ) possesses fish for a commercial purpose.”7

The district court invalidated this regulatory provision and the Court of Appeals affirmed. The Court of Appeals held that “the CFEC is only authorized to issue interim-use permits to fishers participating in fisheries that are potentially subject to limited entry by the CFEC.”8 The halibut and sablefish fisheries are not potentially subject to limited entry by the CFEC because they are managed by the federal government. The State defended its regulation by urging a broad reading of §16.43.210 which at the time authorized the state to issue interim-use permits “pending the establishment of a maximum number of entry permits.” The State claimed this phrase gave CFEC “the authority to issue interim-use permits for any fishery in which it has not limited entry, regardless of who manages that fishery.”9 The Court of Appeals found this interpretation to be unreasonable as it would oblige the CFEC “to issue an interim-use permit to any qualified applicant to fish in any fishery in the world.”10 The court held that a more reasonable interpretation of §16.43.210 is that it requires CFEC to issue interim-use permits to applicants seeking to fish in fisheries to which entry has not been limited, “that is fisheries over which the CFEC has authority to limit entry or impose a moratorium, but has not yet done so.”11 The Supreme Court disagreed. It found that §16.43.210 was meant to apply to every fishery not limited by the CFEC. Since the CFEC has not limited entry to the halibut and sablefish fisheries, the CFEC could issue interim-use permits. Apparently it does not matter that the CFEC does not have the authority to limit entry to the halibut and sablefish fishery.

The Supreme Court’s reasoning begs the question: if CFEC has authority to issue interim-use permits for federal fisheries, why did the legislature authorize landing permits? The Supreme Court found that the legislature created landing permits in 1984 only for a “narrow class of fishers.” In 1984, a salmon fisherman with a federal permit for the salmon troll fishery sought to land his catch in Alaska. Because he did not have a state interim-use permit or entry permit, he was prohibited from landing his catch. Before litigation ensued, the legislature passed a bill giving the Commissioner of Fish and Game discretion to authorize CFEC to issue landing permits.

Because the legislature could have directed the CFEC to issue interim-use permits in this situation, the Court of Appeals concluded that the legislature intended landing permits to be issued when “a fisher with a valid federal permit to harvest fish in the EEZ wants to land that fish in Alaska but holds no entry or interim-use permit.”12 The Supreme Court, however, distinguished the defendants’ situation from that of the salmon fisherman. Unlike the halibut and sablefish fisheries, Alaska’s salmon fisheries were subject to limited entry by the state in 1984. A federally permitted salmon fisherman would have been unable to obtain an entry or interim-use permit. The court found the defendants, unlike the salmon fisherman, could have procured interim-use permits since CFEC has not limited entry to the halibut and sablefish fishery.
The defendants challenged the CFEC’s position that they could have received interim-use permits. The federal IFQ program allows corporations, firms, and associations to participate. The CFEC, however, only issues interim-use permits to individuals. The State claimed that corporations participating in the IFQ program must assign their quota shares to a natural person who harvests the fish. That person would be eligible to apply for a CFEC permit. The court did not rule on this issue, but acknowledged that respondents could seek to disprove the State’s assertion at trial. If the defendants can prove that they could not obtain CFEC permits, they may be able to succeed on a federal preemption claim as Alaska would be prohibiting them from landing fish legally harvested under federal law.

Conclusion
The court’s conclusions appear to be based more on sympathy for the CFEC’s position than on the statutes passed by the legislature. The CFEC was in an awkward spot. It should have required landing permits, but the Commissioner of Fish and Game had not created a regulatory scheme authorizing it to do so. Because all fishermen need a CFEC permit to land fish, it required the only one that was available - an interim-use permit.

This is a classic example of lawyers making things more complicated than they need to be. Since no one was challenging the authority of the state to require fishermen to possess landing permits, it would have seemed more logical for the court to order the Commissioner of Fish and Game to develop regulations authorizing the CFEC to issue landing permits than to force the defendants to pay a fine for not applying for permits inapplicable to their situation.

Endnotes
1. Alaska v. Dupier, 2005 Alas. LEXIS 123 at *2 (Alaska Aug. 12, 2005).
2. Alaska Stat. § 16.43.14.
3. Id. §16.43.210.
4. Id. §16.05.675.
5. Id. § 16.05.675(c).
6. 20 Alaska Admin. Code 05.110(a).
7. Id. 05.110(c).
8. Alaska v. Dupier, 74 P.3d 922, 924 (Alaska 2003).
9. Id. at 928.
10. Id.
11. Id. at 929.
12. Id. at 930.