Commercial Fisheries Entry Commission v. Apokedak

680 P.2d 486, 1984 Alas. LEXIS 279

• Court: Alaska Supreme Court
• Decided: March 2, 1984
• Docket: 6766
• Status: Published

Opinions

OPINION

MATTHEWS, Justice.

AS 16.43.260(a) provides that the Alaska Commercial Fisheries Entry Commission “shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses issued under AS 16.05.536-16.05.-670 ... before the qualification date established in (d) or (e) of this section.” In our first opinion in this case, Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255, 1264, 1268 (Alaska 1980), we held that the requirement that applicants be holders of gear licenses does not violate the equal protection clause of the fourteenth amendment to the United States Constitution or the equal protection provisions of article I, section 1 of the Alaska Constitution. Apokedak’s contention that he was in fact a holder of a gear license because he was a full partner with a gear licensee before the qualification date was remanded for determination. Id. at 1268.

On remand, the Commission found that Apokedak and George Wilson were partners during 1970 and 1971 and that partnership assets were used to purchase the vessel and gear licenses for those years. However, Wilson, and not Apokedak, was named as the gear licensee. The Commission concluded that the term “holders of gear licenses” used in AS 16.43.260(a) referred only to individual named licensees and that therefore Apokedak was ineligible to apply for an entry permit.¹ On appeal the superior court reversed, holding that it was necessary to interpret the term “holders of gear licenses” to include Apokedak in order to avoid unjust discrimination. In so concluding the court found guidance in State v. Templeton, 598 P.2d 77 (Alaska 1979).² The court thereupon remanded Apokedak’s application to the Commission for processing.

From this action the Commission has petitioned this court for review. We have granted review and we now reverse the decision of the superior court.

In our view, the term “holders of gear licenses” can only be reasonably construed to refer' to individual named licensees. As of the enactment of the Limited Entry Act in 1973, of which AS 16.43.260(a) is a part, a gear license was a personal license. Gear could not be fished except in the presence of the named licensee; and the gear license could not be transferred except to alleviate hardship due to the inability of the licensee to continue fishing. AS 16.05.670. When the legislature limited the right to apply for an entry permit to “holders of gear licenses issued under AS 16.05.536-16.05.670 ...”, it meant the individuals who had been issued gear licenses under those statutory sections; not such individuals and their partners as well.

At the inception of the limited entry system, the legislature intended that “the commission would issue entry permits at the present level of fishing effort ...” (emphasis added) 1973 House Journal 503, quoted in, Rutter v. Commercial Fisheries Entry Commission, 668 P.2d 1343, 1347 (Alaska 1983). As we noted in Rutter, “the legislature intended the number of permits initially issued to reflect actual use.... ” Id. The Commission in this case has found that the existence of partnership arrangements in the fishing industry was “prevalent” as of the enactment of limited entry. If partners of gear license holders were eligible to apply for permits this would result in the issuance of substantially more permits than there were gear licenses as of the inception of the limited entry system. This would be inconsistent with the intent of the legislature.

Apokedak argues that a literal construction of AS 16.43.260(a) should not be applied because doing so would result in unjust discrimination. In this regard he relies on the preamble to the Limited Entry Act, AS 16.43.010(a), which states the reasons for the operative provisions which follows:

It is the purpose of this chapter to promote the conservation and the sustained yield management of Alaska’s fishery resource and the economic health and stability of commercial fishing in Alaska by regulating and controlling entry into the commercial fisheries in the public interest and without unjust discrimination.

However, this position is largely foreclosed by our prior decision in this case.³ We held there that the requirement that applicants for entry permits be past gear licensees bore “a fair and substantial relationship to the purpose of preventing unjust discrimination in allocating entry permits.... ” Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255, 1268 (Alaska 1980). It would be inconsistent to hold that the gear license requirement furthers the purpose of avoiding unjust discrimination with respect to Apokedak’s constitutional claims while holding that the same statutory requirement cannot be literally interpreted because such an interpretation would work unjust discrimination.⁴

State v. Templeton, 598 P.2d 77 (Alaska 1979) is not authority to the contrary. Templeton had held a gear license during a number of years, and thus his application had been accepted by the Commission pursuant to AS 16.43.260(a). Once an application was accepted the Commission ranked the applicant under regulations adopted pursuant to AS 16.43.250 “according to the degree of hardship which they would suffer by exclusion from the fishery.”⁵ AS 16.43.250 does not list being a holder of a gear license as a relevant hardship standard. Involved in Templeton was regulation 20 AAC 05.630(b). Regulation 20 AAC 05.630(b)(1) provides for the award of income dependence points in 1971 and 1972 to gear license holders. Templeton was in partnership with his brother during those years, with his brother as the named licensee. Thus, Templeton did not argue that he was entitled to points under that regulation. Rather, he argued that he was entitled to an award of income dependence points under 20 AAC 05.630(b)(2), which provides:

[I]f special circumstances exist such that an applicant’s income dependence is not realistically reflected by his income dependence percentage for the years 1971 and 1972, the commission may award an applicant up to a maximum of 10 points based on a special showing of income dependence; ...

The Commission concluded that this regulation applied only to those who had held gear licenses in the specified years. This conclusion was in accordance with 20 AAC 05.620(1), which states that “[p]oints for income dependence will be awarded only to applicants who harvested the fishery resource commercially while participating as a gear license holder during a year in which income dependence is claimed.” On appeal we reversed, holding that awards of income dependence points under 20 AAC 05.630(b)(2) should not be limited to persons who had held gear licenses in 1971 and 1972. In so doing, we noted that denying income dependence points to Templeton would conflict with the legislature’s stated intent of avoiding unjust discrimination, set forth in the preamble to the Limited Entry Act, AS 16.43.010(a). The effect of our decision was thus to invalidate the above quoted language of 20 AAC 05.620(1).

However, Templeton is distinguishable from the present case in that it concerned administrative regulations promulgated pursuant to the Limited Entry Act rather than the Act itself. This court reviews administrative regulations to ascertain whether they are consistent with the purposes of the statutory provisions conferring rule making authority on the agency in question. Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). Thus, there was occasion in Templeton to refer to the general purpose of avoiding unjust discrimination set forth in AS 16.43.010(a). Here, by contrast, our function is judicial review of a statute rather than a regulation. In approaching this function it is our obligation to ascertain the meaning of the statute. In accomplishing this task our primary guide is the language used, construed in light of the purpose of the enactment.⁶ As indicated above, we have no doubt but that the legislature was referring to individual named licensees in using the phrase “holders of gear licenses,” and that the legislative purpose was that the Commission would initially issue entry permits reflecting existing fishing levels.

For the foregoing reasons we REVERSE the decision of the superior court.

COMPTON and MOORE, JJ., not participating.

1 . The Commission’s opinion states in part:

George Wilson was a licensed gear operator. John Apokedak was not. Without John Apokedak onboard the fishing vessel, George Wilson could legally continue fishing. Without George Wilson onboard, John Apokedak could not legally continue fishing. Prior to April 15 of any year, John Apokedak could have obtained a gear license. After April 15, John Apokedak could not have achieved the status of gear operator without effecting a license transfer at the request of a gear licensee and for reasons specifically allowed in AS 16.05.670(a). No such attempted transfer has been alleged. John Apokedak, lending institutions, processors, venture capitalists, and potentially many others may have been owners or lessees of gear or partners in a commercial fishing operation, but they were not legally licensed gear operators.

AS 16.43.260 authorizes the commission to accept applications only from persons who have commercially harvested fish as holders of gear licenses issued under the above-discussed statutes. We find that those statutes authorize the operation of gear only by the named licensee. We find that the statutes, by their clear language, grant a personal and individual privilege, and that the operation of gear in the absence of the named licensee was illegal. The Limited Entry Act has attached an additional right or privilege to the benefits previously granted by the issuance of a gear license: the eligibility to apply for an entry permit. We find that the eligibility to apply for an entry permit is restricted under AS 16.43.260(a), to precisely the same degree that the operation of gear was historically limited; that is, to the individual in whose name the license was issued. Neither the gear license statute nor the eligibility provision of the Limited Entry Act reach the partner or any other associate of the named licensee.

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The provisions of AS 16.43.260(a) should be interpreted to mean what the common reading would lead a reasonable person to conclude. The facts are that gear licenses have been in existence since before Statehood. They were, without known exception, issued one to the person. Without the benefits of gear licensure an individual was legally precluded from operating a unit of commercial fishing gear. After April 15 an individual could not attain the status of gear license holder in a salmon net fishery without having an existing license voluntarily transferred to him. The Legislature was surely aware of the prevalence of partnership arrangements extant in the industry, and did not provide specifically for their existence.

(Emphasis in original.)

2 . The court’s decision and order states in part:

Although [State v. Templeton, 598 P.2d 77 (Alaska 1979) ] differs in minor factual ways from [this case,] the distinctions are not substantively significant. Both Templeton and Apokedak were equal partners and owners and operators of gear, and both received different treatment than their partners because of the Commission’s literal interpretation of the term “gear license holder.” In neither case did the evidence show significant differences between the functions performed in the fishery by the partner named on the gear license and the partner not so named.

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Given the Supreme Court's decision and reasoning in Templeton, the question is whether that case can be distinguished from this in any way which would disqualify Apokedak’s application. There is no way to do so which would not involve unfairly discriminating against Apokedak. AS 16.43.260 must be interpreted to allow him the same status as his partner.

Apokedak v. Comm’l Fisheries Entry Comm’n, No. 3AN-77-5710 C.A. (Alaska Super., March 31, 1982).

3 . Further, a statutory preamble such as that contained in AS 16.43.010(a) "can neither restrain nor extend the meaning of an unambiguous statute; nor can it be used to create doubt or uncertainty which does not otherwise exist.” 2A C. Sands, Statutes and Statutory Construction § 47.04 (1973).

4 . We rejected a somewhat similar argument in Rose v. Commercial Fisheries Entry Commission, 647 P.2d 154, 162 (Alaska 1982), stating:

In large part, Rose’s disagreement with the Commission's interpretation of what constitutes “special circumstances” merely restates the equal protection argument addressed previously. It would, indeed, be anomalous to hold that the Commission’s regulatory response to the 1972 administrative closure did not deprive first-year gear holders of equal protection of the law, yet at the same time hold that the Commission must award discretionary "special circumstances” points to these very same parties out of concern for the disproportionate impact of the regulations.

5 . AS 16.43.250(a) provides:

Following the establishment of the maximum number of units of gear for a particular fishery under AS 16.43.240, the commission shall adopt regulations establishing qualifications for ranking applicants for entry permits according to the degree of hardship which they would suffer by exclusion from the fishery. The regulations shall define priority classifications of similarly situated applicants based upon a reasonable balance of the following hardship standards:

(1) degree of economic dependence upon the fishery, including but not limited to percentage of income derived from the fishery, reliance on alternative occupations, availability of alternative occupations, investment in vessels and gear;

(2) extent of past participation in the fishery, including but not limited to the number of years participation in the fishery and the consistency of participation during each year.

6 . Wien Air Alaska v. Arant, 592 P.2d 352, 356 (Alaska 1979).