Deubelbeiss v. Commercial Fisheries Entry Commission

689 P.2d 487, 1984 Alas. LEXIS 358

• Court: Alaska Supreme Court
• Decided: October 12, 1984
• Docket: 6494
• Status: Published

Opinions

OPINION

MOORE, Justice.

In this case an unsuccessful applicant for a limited entry permit challenges an administrative regulation specifying the number of points awarded for availability of alternative occupations. See 20 ACC 05.-630(b)(4). We hold that the regulation’s method of ranking applicants for limited entry permits violates the equal protection rights guaranteed by the Alaska Constitution. We therefore reverse the superior court’s decision.

I.

Martin Deubelbeiss was a forty-year-old resident of Ninilchik, Alaska, when he applied for a Cook Inlet salmon drift gillnet fishing limited entry permit in 1975. Deu-belbeiss had participated in the Cook Inlet fishery since 1964. He was awarded fifteen points under the point system of 20 AAC 05.630. Gear licenses were ultimately issued to persons with sixteen or more points.¹

Deubelbeiss challenged the Commercial Fisheries Entry Commission’s (CFEC) decision to award him only two points for the availability of alternative occupations. Points were awarded for the availability of alternative occupations based on an individual’s domicile, under a schedule set forth in 20 AAC 05.630(b)(4). Under the regulation, the total population and the proportion of rural population in the census district or county of an applicant’s domicile were the sole criteria for the award of points for availability of alternative occupations, except for persons lacking road access to other “potential areas of employment.”²

Deubelbeiss sought a hearing before the CFEC to contest the validity of the regulation and to present alternative evidence of the lack of availability of alternative occupations for him.

The CFEC refused to grant him a hearing, since the facts relevant to an award of points under 20 AAC 05.630(b)(4) were not disputed, and the CFEC does not allow hearings for the purpose of contesting its regulations, except for questions of interpretation.

Deubelbeiss timely appealed to the superior court, which affirmed the CFEC’s position in a memorandum decision. He appeals again.

II.

Appellant asserts that the CFEC’s alternative occupation point scheme, as set forth in 20 AAC 05.630(b)(4), is constitutionally infirm. He specifically argues that the wholesale use of census districts to allocate hardship points for the unavailability of alternative occupations violates his rights to equal protection of the law pursuant to Article I, Section 1 of the Constitution of the State of Alaska.

Article I, Section 1 of the Alaska Constitution states the principle that “all persons are equal and entitled to equal rights, opportunities, and protection under the law_” In Isakson v. Rickey, 550 P.2d 359 (Alaska 1976), we first had occasion to apply an intensified rational basis test in an equal protection challenge to a section of Alaska’s Limited Entry Act, AS 16.43.-010-.380. Recently, under the state’s equal protection clause,

we have postulated a single sliding scale of review ranging from relaxed scrutiny to strict scrutiny. The applicable standard of review for a given case is to be determined by the importance of the individual rights asserted and by the degree of suspicion with which we view the resulting classification scheme.

State v. Ostrosky, 667 P.2d 1184, 1192-1193 (Alaska 1983), (footnote omitted).

Even in cases such as this, which do not involve fundamental rights or suspect classifications,³ we minimally require

that the legislation be based on a legitimate public purpose and that the classification ‘be reasonable, not arbitrary, and ... rest upon some ground of difference having a fair and substantial relation to the object of the legislation_ Isak-son v. Rickey, 550 P.2d at 362 (quoting State v. Wylie, 516 P.2d 142, 145 (Alaska 1973)).

State v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983).

The purpose of the regulation before us, 20 AAC 05.630, is explicitly stated in the section of the Limited Entry Act which authorized its promulgation, AS 16.43.250.⁴

To avoid unjust discrimination⁵, the Act instructed the commission to rank applicants for the limited number of permits according to the degree of hardship which they would suffer by exclusion from the fishery. Isakson v. Rickey, 550 P.2d at 363. The legislature determined that whether or not an applicant had occupations other than fishing available to him was an important factor in assessing his economic dependency on the fishery for the purpose of awarding a limited entry permit.

Appellant does not dispute the legitimacy of that purpose. Indeed, he agrees that the availability of alternative occupations is a useful and appropriate criterion. Therefore, the only question before us is whether the means of classification chosen by the commission to allocate points bears a fair and substantial relation to the purpose of the regulation.⁶ Does the use of census districts bear a fair and substantial relation to the determination of the availability to an applicant of alternative occupations? In our opinion, it clearly does not.

20 ACC 05.630(b)(4) employs census districts as the sole mechanism for determining the “availability of alternative occupations in [an] applicant’s domicile.” Appellant argues that such a classification mechanism simply bears no realistic correlation to whether a given applicant has alternative occupations available in his domicile. Appellee concedes that a census district is merely a federal population device for determining political representation. Further, the record provides no justification ⁷ for the commission’s decision to utilize census districts.

Moreover, because persons such as appellant are automatically allocated fewer points for availability of alternative occupations because they happen to be located within one of the more populous census districts, in spite of their residence in a small isolated coastal town dependent upon fishing, the classification is impermissibly underinclusive. Because persons who happen to be located within less populous census districts are automatically awarded the maximum point allotment, despite their proximity to the occupations available in a major urban center across the census district boundary, the classification is imper-missibly overinclusive.⁸

In short, we are unable to conclude that a fair and substantial relation exists between the availability in an applicant’s domicile of alternative occupations and the wholesale use of census districts as the means of determining that availability. As a result, the legislative mandate to avoid unjust discrimination by the establishment of a relative hardship scale giving preference to those who have fewer occupational alternatives available to them is frustrated.

Consequently, we find that the scheme set forth in 20 AAC 05.630(b)(4) violates appellant’s equal protection rights guaranteed by the Alaska Constitution. Accordingly, we REVERSE the judgment of the superior court and we REMAND this case to the CFEC for further proceedings.⁹

1 . For a description of the point system for allocation of limited entry permits, see Rose v. Commercial Fisheries Entry Commission, 647 P.2d 154, 155-57 (Alaska 1982).

2 . 20 AAC 05.630(b)(4) states:

(b) Economic Dependence. Up to a maximum of 20 points will be awarded an applicant for economic dependence on a fishery based on the following schedule:

(4) availability of alternative occupations in applicant's place of domicile as of the qualification date. (Maximum of four points possible.)

(A)domicile in a census district or county with a population that is more than 80% rural or has a total population of under 10,000 as of the 1970 census ... 4 points

(B) domicile in a census district or county with a population that is more than 40% rural or has a total population of under 25,000 as of the 1970 census ... 2 points

(C) domicile in a census district or county with a population that is 40% or less rural or has a total population of 25,000 or more as of the 1970 census ... 0 points

(D) an applicant from a zero to two point area may receive up to the maximum of four points through a special showing that there is neither a road nor adequate daily transportation service from the applicant's domicile to other potential areas of employment in his census district.

3 . We have previously determined that the right to a limited entry permit is not a fundamental right. Isakson v. Rickey, 550 P.2d 359, 363 (Alaska 1976). Further, we do not consider the regulatory classification before us to be suspect.

4 . AS 16.43.250. Standards for initial issue of entry permits provides, in pertinent part:

(a) [T]he 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 ... availability of alternative occupations....

(Emphasis added).

5 . Appellant also argues that the regulation in question violates the explicit mandate of AS 16.43.010(a) to accomplish the regulation of the fisheries "without unjust discrimination.” Having chosen the constitutional challenge as the more appropriate basis for reviewing the appeal in this case, we see no need to address the issue in statutory terms.

6 . No balancing remains to be done. Balancing is inherent in the process of selection and application of the standard of review and is not itself a separate step. State v. Ostrosky, 667 P.2d 1184, 1193 n. 14 (Alaska 1983).

7 . Both parties speculate that administrative convenience is the basis for the use of census districts. Although administrative convenience is legitimate, it cannot in itself outweigh the applicant’s interest in the limited entry permit. CFEC v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980).

8 . The CFEC ameliorated the effects of the "census district” criterion by providing that two additional points could be obtained by individuals residing in places which lack road access to "other potential areas of employment in his census district,” 20 AAC 05.630(b)(4)(D), but it made no differentiation as to the distance from other possible areas of employment for those persons who did have road access. Thus, a resident of Ninilchik, forty road miles from Kenai, or of Homer, 80 road miles from Kenai, was awarded two points, while residents of Palmer and Wasilla, which are approximately forty road miles from downtown Anchorage, were awarded four points, and residents in the Fairbanks area living more than forty miles from downtown Fairbanks received zero points. In our opinion, there is no justification for these anomalies.

9 . We express no opinion as to whether rectification of the unfairly discriminatory aspects of 20 AAC 05.630(b)(4) would, or should, result in the issuance of additional points to this applicant. It is the CFEC’s task to further refine its criteria for the issuance of points in this category and to ascertain the effect of the refinements in this case.