Alaska Upholds Commercial Fishery Decision

SandBar Printer-Friendly Article
SandBar 6:4, January, 2008 Alaska Upholds Commercial Fishery Decision Pasternak v. State of Alaska, Commercial Fisheries Entry Commission, 2007 Alas. Lexis 107 (Alaska Sept. 7, 2007). *Sara Wilkinson, 3L, University of Mississippi School of Law* The Alaska Supreme Court has upheld the decision of the Alaska Commercial Fisheries Entry Commission (CFEC) regarding participation in non-distressed fisheries. The Supreme Court specifically addressed a 1985 CFEC decision that limited Alaska’s Northern Southeast Inside sablefish longline fishery to seventy-three permits. Background The CFEC, under the authority of Alaska’s Limited Entry Act, is charged with determining both the optimum and the maximum number of permits for a fishery and outlining the qualifications for the issuance of permits. The CFEC distributes permits based on a point system used to determine an applicant’s order of priority, taking into account past participation as a skipper or crew member in the particular fishery, as well as economic dependence on the fishery. Points for permit priority may also be awarded based on income dependence and vessel investment. In 1985, the CFEC limited participation in the Northern Southeast Inside sablefish longline fishery over concern for the economic and environmental health of the fishery. The commission limited the fishery to seventy-three permits to be distributed on a points-based application system. In determining the number of permits, the CFEC was required to set a maximum number of permits “no lower than the highest number of units of gear in the fishery in the four years prior to the January 1, 1985 qualification date.”1 Since the fishery had seventy-three units of gear in one of those years, the maximum number could be no lower than seventy-three. Because the fishery was considered non-distressed, the CFEC had the authority to set the optimum number of available permits at a number higher than seventy-three.2 After the issuance of a public notice, seventy-three became the optimum and the maximum number of permits available in May 2001. In November 1987, Walter Pasternak submitted an application for a limited entry permit, claiming fifty-one points based on past participation in the fishery, vessel ownership, and income dependence. In April 1989, the CFEC awarded Pasternak forty-three and one-half points, reducing the vessel ownership points because Pasternak’s wife jointly owned the vessel. Pasternak requested a hearing regarding the points distributed for vessel ownership and in March 1991 was issued a written decision awarding all fifteen vessel ownership points bringing his point total to fifty-one points. In January 2003, the CFEC denied Pasternak’s application because fifty-one points were insufficient to qualify him for a fishery permit. In February 2003, Pasternak filed petition for reconsideration with the CFEC and, shortly thereafter, an appeal in superior court alleging that the CFEC set the maximum number of permits available for the fishery too low. Pasternak’s case was stayed pending the court’s decision in a similar case, Simpson v. State, Commercial Fisheries Entry Commission. Maximum Number of Permits The court noted that in its review of an agency’s interpretation of its own regulation, a reasonable basis standard of review was appropriate. In essence, the Alaska Supreme court will defer to the agency’s expertise and decision unless its “interpretation is plainly erroneous and inconsistent with the regulation.”3 Pasternak claimed that the CFEC erred in setting the maximum number of permits at seventy-three and sought a ten-permit increase. In discussing Pasternak’s claim, the court looked primarily at Simpson, in which the plaintiff challenged both the maximum and optimum number of permits set for the fishery by the CFEC. The court rejected Simpson’s claim using a two-pronged test. The test first clarified that the maximum number of permits should be set at a level that is no lower than the highest number of units of gear in operation in any one year for the four years prior to the limitation on the fishery. Second, the CFEC must meet its primary goals of conserving the fishery while enabling fishermen to receive adequate compensation. The court held that the CFEC met both requirements and found in favor of the CFEC’s allotment of seventy-three permits for the fishery. Relying on Simpson, the court rejected Pasternak’s argument that the maximum number of permits should be in creased for the fishery. Pasternak also argued in the alternative that the maximum number of permits should simply be increased to seventy-four permits. However, the court noted that there was no evidence to indicate that if the maximum number was increased to seventy-four Pasternak would be eligible for a permit. Optimum Number of Permits In addition to challenging the maximum number of permits, Pasternak challenged the CFEC’s decision regarding the optimum number of permits for the fishery. In Simpson, the court upheld the CFEC’s decision to set the optimum number of permits at seventy-three. Pasternak asserted that positive changes in the fishery justified an increase in the optimum number of permits set at seventy-three. The court rejected Pasternak’s argument based on the holding in Simpson and evidence that the fishery was actually declining. Permitting Points Based on Past Participation Pasternak’s final argument asserted that the CFEC erred by refusing to consider his claim for participation in 1983. Past participation points are awarded based on a harvest of at least 2,000 pounds or a proof of some extraordinary circumstance that prevented participation in the year in question. Pasternak did not participate in the fishery in 1983, rendering him ineligible for participation points absent the showing of extraordinary circumstances that prevented his participation. Pasternak explained that he did not participate in the fishery in 1983 due to concerns over his equipment and the advice of other fishermen. The court found that Pasternak’s explanation did not fall within the scope of extraordinary circumstances because he did not make all reasonably possible efforts to participate in the fishery in 1983. Conclusion The Alaska Supreme Court upheld the CFEC’s decision regarding the maximum and optimum number of permits for Alaska’s Northern Southeast Inside sablefish longline fishery. In addition, the court held that Pasternak was not entitled to participation points for extraordinary circumstances for 1983. In essence, the court primarily relied on its past holding in Simpson, which upheld the CFEC’s decision for the same fishery. Endnotes 1. Simpson v. State, Commercial Fisheries Entry Comm’n, 101 P.3d 605, 607 (Alaska 2004). 2. The Alaska Supreme Court differentiated between distressed and non-distressed fisheries in Johns v. Commercial Fisheries Entry Commission, 758 P.2d 1256, 1262 n.6 (Alaska 1988). The court noted “a non-distressed fishery may tolerate more units of gear than the historic high. In contrast, a distressed fishery, by definition, cannot85Second, a distressed fishery is one which is overgeared as of January 1, 1973.” 3. Simpson, 101 P.3d 605.
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 6:4, January, 2008

Pasternak v. State of Alaska, Commercial Fisheries Entry Commission, 2007 Alas. Lexis 107 (Alaska Sept. 7, 2007).

Sara Wilkinson, 3L, University of Mississippi School of Law

The Alaska Supreme Court has upheld the decision of the Alaska Commercial Fisheries Entry Commission (CFEC) regarding participation in non-distressed fisheries. The Supreme Court specifically addressed a 1985 CFEC decision that limited Alaska’s Northern Southeast Inside sablefish longline fishery to seventy-three permits.

Background
The CFEC, under the authority of Alaska’s Limited Entry Act, is charged with determining both the optimum and the maximum number of permits for a fishery and outlining the qualifications for the issuance of permits. The CFEC distributes permits based on a point system used to determine an applicant’s order of priority, taking into account past participation as a skipper or crew member in the particular fishery, as well as economic dependence on the fishery. Points for permit priority may also be awarded based on income dependence and vessel investment.
      In 1985, the CFEC limited participation in the Northern Southeast Inside sablefish longline fishery over concern for the economic and environmental health of the fishery. The commission limited the fishery to seventy-three permits to be distributed on a points-based application system. In determining the number of permits, the CFEC was required to set a maximum number of permits “no lower than the highest number of units of gear in the fishery in the four years prior to the January 1, 1985 qualification date.”1 Since the fishery had seventy-three units of gear in one of those years, the maximum number could be no lower than seventy-three. Because the fishery was considered non-distressed, the CFEC had the authority to set the optimum number of available permits at a number higher than seventy-three.2 After the issuance of a public notice, seventy-three became the optimum and the maximum number of permits available in May 2001.
      In November 1987, Walter Pasternak submitted an application for a limited entry permit, claiming fifty-one points based on past participation in the fishery, vessel ownership, and income dependence. In April 1989, the CFEC awarded Pasternak forty-three and one-half points, reducing the vessel ownership points because Pasternak’s wife jointly owned the vessel. Pasternak requested a hearing regarding the points distributed for vessel ownership and in March 1991 was issued a written decision awarding all fifteen vessel ownership points bringing his point total to fifty-one points.
   In January 2003, the CFEC denied Pasternak’s application because fifty-one points were insufficient to qualify him for a fishery permit. In February 2003, Pasternak filed petition for reconsideration with the CFEC and, shortly thereafter, an appeal in superior court alleging that the CFEC set the maximum number of permits available for the fishery too low. Pasternak’s case was stayed pending the court’s decision in a similar case, Simpson v. State, Commercial Fisheries Entry Commission.

Maximum Number of Permits
The court noted that in its review of an agency’s interpretation of its own regulation, a reasonable basis standard of review was appropriate. In essence, the Alaska Supreme court will defer to the agency’s expertise and decision unless its “interpretation is plainly erroneous and inconsistent with the regulation.”3
Pasternak claimed that the CFEC erred in setting the maximum number of permits at seventy-three and sought a ten-permit increase. In discussing Pasternak’s claim, the court looked primarily at Simpson, in which the plaintiff challenged both the maximum and optimum number of permits set for the fishery by the CFEC. The court rejected Simpson’s claim using a two-pronged test. The test first clarified that the maximum number of permits should be set at a level that is no lower than the highest number of units of gear in operation in any one year for the four years prior to the limitation on the fishery. Second, the CFEC must meet its primary goals of conserving the fishery while enabling fishermen to receive adequate compensation. The court held that the CFEC met both requirements and found in favor of the CFEC’s allotment of seventy-three permits for the fishery.
Relying on Simpson, the court rejected Pasternak’s argument that the maximum number of permits should be in creased for the fishery. Pasternak also argued in the alternative that the maximum number of permits should simply be increased to seventy-four permits. However, the court noted that there was no evidence to indicate that if the maximum number was increased to seventy-four Pasternak would be eligible for a permit.

Optimum Number of Permits
In addition to challenging the maximum number of permits, Pasternak challenged the CFEC’s decision regarding the optimum number of permits for the fishery. In Simpson, the court upheld the CFEC’s decision to set the optimum number of permits at seventy-three. Pasternak asserted that positive changes in the fishery justified an increase in the optimum number of permits set at seventy-three. The court rejected Pasternak’s argument based on the holding in Simpson and evidence that the fishery was actually declining.

Permitting Points Based on Past Participation
Pasternak’s final argument asserted that the CFEC erred by refusing to consider his claim for participation in 1983. Past participation points are awarded based on a harvest of at least 2,000 pounds or a proof of some extraordinary circumstance that prevented participation in the year in question. Pasternak did not participate in the fishery in 1983, rendering him ineligible for participation points absent the showing of extraordinary circumstances that prevented his participation.
Pasternak explained that he did not participate in the fishery in 1983 due to concerns over his equipment and the advice of other fishermen. The court found that Pasternak’s explanation did not fall within the scope of extraordinary circumstances because he did not make all reasonably possible efforts to participate in the fishery in 1983.

Conclusion
The Alaska Supreme Court upheld the CFEC’s decision regarding the maximum and optimum number of permits for Alaska’s Northern Southeast Inside sablefish longline fishery. In addition, the court held that Pasternak was not entitled to participation points for extraordinary circumstances for 1983. In essence, the court primarily relied on its past holding in Simpson, which upheld the CFEC’s decision for the same fishery.

Endnotes
1. Simpson v. State, Commercial Fisheries Entry Comm’n, 101 P.3d 605, 607 (Alaska 2004).
2. The Alaska Supreme Court differentiated between distressed and non-distressed fisheries in Johns v. Commercial Fisheries Entry Commission, 758 P.2d 1256, 1262 n.6 (Alaska 1988). The court noted “a non-distressed fishery may tolerate more units of gear than the historic high. In contrast, a distressed fishery, by definition, cannot85Second, a distressed fishery is one which is overgeared as of January 1, 1973.”
3. Simpson, 101 P.3d 605.