JOHNSON v. STATE, S-11142 (Alaska 1-26-2005)
Supreme Court No. S-11142.Supreme Court of Alaska.
January 26, 2005.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Patricia A. Collins, Judge, Superior Court No. 1JU-02-636 CI.
Michael Hough, Homer, for Appellant.
John T. Baker, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT[fn*]I. INTRODUCTION
The Commercial Fisheries Entry Commission denied Earle Johnson’s application for a Northern Southeast Inside (NSEI) sablefish fishery permit. Johnson appealed to the superior court and sought to supplement the record so that he could challenge not just the commission’s decision in his case, but also the validity of its points-based permit system for the NSEI fishery. The superior court affirmed the commission’s denial of Johnson’s application, and found that Johnson had waived his arguments regarding the commission’s regulatory actions in limiting entry to the fishery. Johnson appeals, contending that the commission unfairly refused him a hearing in which to present additional witnesses, that the commission’s decision to deny him points toward a permit for “extraordinary circumstances” is not supported by the evidence, and that the superior court erred by refusing to consider his challenge to the permit system. We hold that substantial evidence supports the commission’s decision to deny Johnson’s application and that Johnson’s challenge to the NSEI permit system lacks merit under our recent ruling rejecting a similar challenge in Simpson v. State.[fn1] Accordingly, we affirm.
II. FACTS AND PROCEEDINGS
The commission adopted regulations for the NSEI sablefish fishery in 1987, limiting the number of permits to be issued for that fishery on a points-based system. The point system for the fishery is defined in 20 AAC 05.705. According to this regulation, permit points are awarded for seasons in which a skipper landed at least 2,000 pounds of sablefish, for past crew-member participation, and for economic dependence. The commission will accept applications only from skippers who fished the fishery between 1982 and 1984.[fn2] Skipper participation points depend on the applicant showing a catch of at least 2,000 pounds of sablefish in a given season.[fn3] But skippers who qualify for points from at least one of the years 1982 through 1984 may claim additional points for participation from 1975 to 1981.[fn4] Skippers who fail to reach this minimum may claim points that they “could reasonably have claimed” but for “extraordinary circumstances.”[fn5]
Earle Johnson applied for an NSEI permit in November 1987. He claimed sixteen points for participation in 1982, fourteen points for 1980, and thirteen points for 1979, for a total of forty-three points. Johnson also claimed fifty percent ownership in a vessel that fished each of those years for 7.5 points. Thus, Johnson claimed a total of 50.5 points. In support of his application, Johnson attached an affidavit stating:
During the fall black cod fishery, in 1980 I broke the long line drum after the first day of fishing. I feel that if this break-down had not happened, I would have caught more than 2000# of black cod.
The commission responded to Johnson in September 1988, alerting him that his application would not be considered until he produced evidence to support his point claim. The commission notified Johnson that it had no record of his alleged landings in 1982 and no evidence that he had attained the 2,000-pound minimum in 1979.
Johnson responded by letter in November. He confirmed that he had only caught 1,203 pounds in 1979, but claimed that his failure to catch the 2,000-pound minimum in 1980 was attributable to extraordinary circumstances because “my drum started to break. Being this was the same drum I used for gillnetting, I thought it best to give up on black cod, even tho I could only make a landing of 421# for 1980.” He described his point claim for 1982 as follows:
I was able to fish during the last week of the 1982 season and I made one landing of between 2700 and 2800 pounds. I unloaded in Hoonah as I had done in prior years. My wife was the only other person aboard the boat for this season.
. . . I haven’t found any of my old fish tickets yet. But confident I will.
The commission found catch records verifying that Johnson caught 1,203 pounds of sablefish in 1979 and 421 pounds in 1980, but was unable to find records confirming his claimed catch in 1982. The commission thus denied his application in 1989.
Johnson requested an administrative hearing. At the hearing, he testified that he was prevented from catching more than 421 pounds in 1980 because of equipment failure and that his catch in 1982 was undocumented because he unloaded it late. He also amended his claim, at the suggestion of the hearing officer, increasing his vessel ownership points from 7.5 to fifteen, for a total of fifty-eight points. Johnson offered no other witnesses or documentation. The hearing officer agreed to keep the record open at the conclusion of the hearing to accommodate any further evidence Johnson could supply. About five months later, in June 1990, Johnson’s wife wrote the commission, stating only that she had been “with Earle Johnson during the Chatham black cod fishery in 1982.”
After that, the record lay dormant for six years. In November 1996 the hearing officer sent Johnson a letter, indicating that the hearing officer had not received any evidence to support Johnson’s 1982 claim. Enclosed with the letter were the results of a commission computer search for Johnson’s landings for 1982, as well as all sablefish deliveries reported from that year by Thompson Fish Co., where Johnson claimed to have delivered his catch. The records failed to substantiate Johnson’s 1982 claim.
In February 1998 the hearing officer issued a decision denying Johnson’s application. While noting that Johnson’s testimony had been “credib[le],” the decision found that he had nonetheless failed to prove his 1982 claims by a preponderance of the evidence because existing records failed to reflect a catch of more than 2,000 pounds. The decision also rejected Johnson’s 1980 “extraordinary circumstances” claim, finding that it was “too speculative and insufficiently developed to be granted.” The decision found Johnson ineligible for points in 1979 because he had only caught 1,203 pounds. It further denied his claims for vessel ownership and income dependence because Johnson had failed to establish minimum annual catch values of $2,000 for the years 1982, 1983, and 1984, as required under 20 AAC 05.705(b)(1).
After receiving the hearing officer’s decision, Johnson retained counsel and petitioned for administrative review. In his petition, Johnson claimed to have “located two individuals who remember his participation in the Chatham Straits Sable fishery during [the] relevant years.” According to Johnson, “[w]hile neither individual can substantiate the amount of pounds [that I] may have harvested, they can attest to [my] participation.”
In June 2002 the commission issued a decision denying Johnson’s petition and upholding the hearing officer’s ruling. The commission noted first that Johnson would have to prove a 2,000 pound catch in 1982 in order to qualify for skipper participation points for any other year. It observed that Johnson had been unable to substantiate his 1982 claims before the hearing officer and that he admitted that his two proposed additional witnesses would be unable to “substantiate the number of pounds of NSEI sablefish Johnson claims to have caught in 1982.” According to the commission, the issue was moot in any event because it was mathematically impossible for Johnson to obtain the fifty-one points he would need for inclusion in the pool of potentially successful applicants: “[U]nder a best-case scenario, Johnson would qualify for only 46 points: 1982 skipper participation (16); vessel investment (15); and income dependence (15).”
The commission explained that it would not count Johnson’s 1979 and 1980 claims in this total, because he had failed to prove those claims before the hearing officer; similarly, Johnson had failed to prove his 1982 claim and had acknowledged that his proposed new witnesses could not substantiate that claim. In addition, the commission rejected Johnson’s claim that his broken drum was an “extraordinary circumstance” that prevented him from catching the 2,000-pound minimum in 1980:
It is apparent from the record that Johnson made a conscious decision to discontinue longlining sablefish and, thereby, keep his equipment operational for the harvest of salmon. The record indicates that Johnson’s single 1980 NSEI sablefish landing occurred on September 15, a full two months prior to the close of the NSEI season. Johnson apparently made no effort during this period to equip his vessel in a manner that would have allowed him to continue participating in the 1980 NSEI season. He abandoned the fishery so that he could continue to participate in another, a business decision of the sort fishers are frequently called upon to make. Given these circumstances, we do not view the problem Johnson encountered when he attempted to use his wooden gillnet reel in sablefish longline operation as an extraordinary circumstance.
The commission further noted that “Johnson simply failed to catch enough NSEI sablefish to qualify for skipper participation points” in 1979. Finally, it observed that Johnson’s “Petition for Administrative Review makes no mention of Johnson’s claims for skipper participation in 1979 or 1980, or the Hearing Officer’s denial of those claims.”
Johnson appealed this decision to the superior court and moved for an order to supplement the record with additional commission records that would enable him to challenge its point system. The superior court denied this motion.
The superior court subsequently issued a decision affirming the commission’s decision. The court found that Johnson had not proved his participation in 1982, that the failure of his drum in 1980 did not qualify as an extraordinary circumstance, that Johnson had failed to catch the 2,000-pound minimum in 1979, that the commission did not err in declining to hear supplemental testimony concerning Johnson’s 1982 claim from his two new witnesses, and that Johnson had waived his remaining arguments concerning the point system’s validity by failing to raise that issue before the commission.
Johnson appeals.
III. DISCUSSION
A. Standard of Review
“When the superior court acts as an intermediate appellate court, this court reviews the merits of the underlying administrative decision, giving no deference to the lower court’s determination.”[fn6]
We will affirm the factual findings of the commission so long as they are supported by substantial evidence.[fn7] Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[fn8] We will affirm the commission’s decisions of law involving its expertise so long as they have a reasonable basis, and will substitute our judgment on questions of law where no expertise is involved.[fn9]
We apply the abuse of discretion standard to review the superior court’s rulings on motions to supplement the record or order de novo proceedings in an administrative appeal.[fn10] B. The Commission’s Decision To Deny Johnson a Hearing
Johnson argues that the commission unfairly refused to hear supplemental testimony from two new witnesses who would have corroborated his participation in the 1982 sablefish fishery. Johnson testified before the hearing officer that he caught between 2,700 and 2,800 pounds of sablefish in 1982, which would give him additional permit points. He notes that, despite describing this testimony as “credible,” the hearing officer found that the preponderance of the evidence failed to support Johnson’s claim. Given these circumstances, Johnson asserts, the commission should have allowed his new witnesses to testify.
But Johnson acknowledged that these witnesses could only corroborate the fact that he participated in the 1982 sablefish fishery; they would not be able to confirm that he caught at least 2,000 pounds of sablefish that year — the crucial point that remained unproved. Under these circumstances, the commission could properly conclude the new testimony would not have materially advanced Johnson’s claim. Thus, the commission did not act arbitrarily or capriciously in declining to hear the two witnesses.
Moreover, even if the witnesses could have corroborated Johnson’s 1982 claim, the commission’s failure to hear the additional testimony would at most have amounted to harmless error. Johnson failed to qualify for points from either 1979 or 1980 seasons. This left him with a maximum of forty-six possible points, five points shy of the minimum points required for a permit.[fn11] As the commission noted in its final decision, “any . . . applicant whose final point classification is less than 51 is mathematically excluded from the pool of potentially successful applicants.”
C. Extraordinary Circumstances Claim
Johnson argues that the commission arbitrarily rejected his 1980 “extraordinary circumstances” claim.[fn12] Johnson claimed participation points for 1980 despite catching only 421 pounds of sablefish that year. He sought to attribute his failure to harvest the minimum amount of 2,000 pounds to the failure of his longline drum, claiming this was an extraordinary circumstance. He reasoned that had the drum not started to fail, he would “easily have exceeded the 2000 pound requirement.”
But the commission affirmed the hearing officer’s determination that this claim was “too speculative and insufficiently developed to be granted.” The commission further reasoned that, since Johnson abandoned the NSEI fishery so that he could continue to participate in gill netting, he had simply made “a business decision of the sort fishers are frequently called upon to make,” and thus failed to qualify for the exception.
The commission’s reasoning appears to be sound. Whether an applicant has made “all reasonably possible efforts to participate in a fishery” is a valid consideration in the weighing of an extraordinary circumstances claim.[fn13] Moreover, substantial evidence supports the commission’s conclusion that Johnson did not suffer the “extensive mechanical breakdown” that the regulation requires.[fn14] Here, the commission found that Johnson’s wooden drum proved unsuitable for the sablefish longline fishery but, as Johnson admitted himself, he continued to use the drum for the salmon gillnet fishery. Johnson has not challenged this finding.
The record also supports the commission’s rejection of Johnson’s claim as overly speculative. Johnson admits that he used the drum on his vessel in 1979 “successfully, safely, and without incident.” Yet during that season he caught only 1,203 pounds of sablefish, well below the 2,000-pound minimum. In short, our review of the record convinces us that the commission did not err in rejecting Johnson’s claim of extraordinary circumstances.
D. Johnson’s Supplemental Arguments in the Superior Court
Finally, Johnson argues that the superior court erred by refusing to allow him to challenge the point system. Johnson sought to argue that the commission’s decisions and actions establishing the point system for sablefish permits violated the purposes of the Limited Entry Act and were arbitrary and capricious. The superior court declined to consider the issue, ruling that Johnson had waived the point by failing to argue it before the commission.
The superior court’s ruling finds support in our cases: We have ruled that “a party must raise an issue during the administrative proceedings to preserve the issue for appeal.”[fn15] Johnson nonetheless contends that it would have been futile to raise this issue below.[fn16] Yet Johnson’s point-system challenge would fail on its merits even if it were treated as properly raised. InSimpson v. State,[fn17] we recently rejected a challenge to the NSEI fishery point system that Johnson concedes is “quite similar” to the challenge he sought to raise here. Our decision in Simpson thus establishes that Johnson’s claim lacks merit.
IV. CONCLUSION
For these reasons, we AFFIRM the commission’s decision.
[fn*] Entered pursuant to Appellate Rule 214. [fn1] 101 P.3d 605 (Alaska 2004). [fn2] 20 Alaska Administrative Code (AAC) 05.703. [fn3] 20 AAC 05.705(a)(1)(A). [fn4] 20 AAC 05.705(a)(1)(C). [fn5] 20 AAC 05.703(d). [fn6] Dominish v. State, Commercial Fisheries Entry Comm’n,907 P.2d 487, 492 (Alaska 1995). [fn7] Jones v. Commercial Fisheries Entry Comm’n, 649 P.2d 247,249 n. 4 (Alaska 1982). [fn8] Commercial Fisheries Entry Comm’n, State v. Baxter,806 P.2d 1373, 1374 (Alaska 1991) (quoting Keiner v. City ofAnchorage, 378 P.2d 406, 411 (Alaska 1963)). [fn9] Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975). [fn10] Southwest Marine, Inc. v. State, Dep’t of Transp. Pub.Facilities, 941 P.2d 166, 172 (Alaska 1997) (citing Alaska R. App. P. 609(a)-(b)(1)). [fn11] The sum of forty-six points would come from sixteen points for 1982 skipper participation, fifteen points for vessel investment, and fifteen points for income dependence. [fn12] 20 AAC 05.703(d) provides:(d) Extraordinary Circumstances. If extraordinary circumstances prevented an applicant from participating in the fishery in a given season, the commission will, in its discretion, award the applicant those points the applicant could reasonably have claimed but for the extraordinary circumstance. Extraordinary circumstances include temporary illness or disability, the loss of vessel or equipment through sinking, destruction, or extensive mechanical breakdown, and other similar objectively verifiable causes of non-participation. Extraordinary circumstances do not include, for example, voluntary or involuntary retirement from the fishery, permanent illness, permanent disability, or loss of the financial means to continue participation in the fishery.
[fn13] Cleaver v. State, Commercial Fisheries Entry Comm’n,48 P.3d 464, 468 (Alaska 2002). [fn14] See 20 AAC 05.703(d). [fn15] Trustees for Alaska v. State, Dep’t of Natural Res.,865 P.2d 745, 748 (Alaska 1993). [fn16] See, e.g., Ostman v. State, Commercial Fisheries EntryComm’n, 678 P.2d 1323, 1329 (Alaska 1984). [fn17] 101 P.3d 605 (Alaska 2004).