Dominish v. State, Commercial Fisheries Entry Commission
Docket: S-6047
Court: Alaska Supreme Court; December 8, 1995; Alaska; State Supreme Court
In 1975, Michael Dominish applied for a Cook Inlet salmon drift gill net entry permit, but the Commercial Fisheries Entry Commission (CFEC) determined he qualified for only twelve of the thirteen necessary points and denied his application. Over the next fifteen years, Dominish appealed multiple times, contesting CFEC's decisions based on various claimed points related to his fishing history, income dependence, and investment in a vessel. The CFEC requested additional information from Dominish but did not receive it. In September 1975, the CFEC awarded him twelve points, denying the rest due to insufficient evidence for his claims, particularly for participation in fishing during 1970-1972 and for alternative occupation points. A hearing officer confirmed the denial of additional points after reviewing Dominish's lack of participation and failure to provide requested evidence. Although CFEC scheduled a review hearing later that year, Dominish did not attend. The superior court upheld CFEC's decision, and Dominish subsequently appealed to the Supreme Court of Alaska, which also affirmed the denial of his application.
CFEC received a letter from Dominish four days post-hearing, indicating he had returned to Ohio for medical evidence and revealing his 1972 Cook Inlet fishery application was denied due to being one day late. CFEC later confirmed the adoption of the hearing officer's recommendations and informed Dominish in January 1977 that his application was denied for insufficient points. In March, CFEC agreed to consider additional medical evidence, which Dominish submitted in April, but his claim was denied again later that month. In June 1978, Dominish complained about not being allowed to pay a late filing fee for his 1972 application and provided evidence of the late postmark. His attorney requested the application be reopened, and CFEC agreed to reconsider without remanding to a hearing officer, preferring direct handling. By September, Dominish’s attorney indicated the matter could be expedited by the Commission. In July 1979, CFEC referred the case to a hearing officer, who later informed Dominish of his ineligibility for additional points under new legislation due to not applying for permits in other fisheries. In 1981, inquiries were made regarding closing the record, and Dominish was advised to request a supplemental hearing by a specific deadline. After the deadline, a letter from Dominish's attorney stated he was still gathering medical records. No additional evidence was submitted, leading the hearing officer to prepare a decision in March 1982, concluding that Dominish should retain twelve points. The hearing officer determined that Dominish's late application was due to his own neglect and that his reliance on Fish and Game for late application procedures did not exempt him from knowing the licensing requirements. Additionally, Dominish's claims of medical impairments were insufficient to demonstrate unavoidable circumstances.
Dominish requested an oral presentation before the Commercial Fisheries Entry Commission (CFEC), which took place in November 1982. During the hearing, he testified and later provided affidavits from two former Fish and Game officials. These affidavits stated that in 1972, there were procedures for accepting late applications, including informing tardy applicants about the need to explain their delays and submit additional fees. In December 1982, Dominish contended that the State had unfairly denied him a license due to a lack of notification about these procedures, compounded by his medical and economic challenges, which he argued warranted special consideration.
In July 1991, CFEC denied Dominish's application, determining he did not meet the statutory requirements for point pooling since he had not applied for multiple entry permits. Additionally, CFEC found that he did not qualify for AAO points based on census data and that his testimony failed to substantiate his claim of medical issues hindering his fishing activities in 1972. CFEC concluded that the State’s failure to accept his late application did not constitute a special circumstance and rejected his request for consideration based on his fishing activities in prior years, deeming those economic choices rather than unavoidable circumstances.
After CFEC's denial, Dominish sought reconsideration, arguing he should have received a hearing on evidence from after July 1, 1978, and citing a legal precedent that could allow for discretionary awarding of points based on his overall situation. CFEC denied this petition, leading Dominish to appeal to the superior court, which upheld CFEC's decision. The superior court found substantial evidence supported CFEC's findings regarding Dominish's late application and lack of special circumstances, confirming that he had received due process through his oral presentation and submission of evidence.
The standard of review for the superior court acting as an appellate court includes evaluating the administrative decision without deference to the lower court, applying tests for substantial evidence in factual matters, reasonable basis for legal issues involving agency expertise, independent judgment for legal questions without agency expertise, and ensuring administrative regulations are reasonable and not arbitrary.
Dominish's primary grievance is the alleged lack of an adequate hearing, which he connects to a claim of denied due process. He contends that the Commercial Fisheries Entry Commission (CFEC) wrongly denied him a hearing in 1975, despite initially being offered one. Dominish opted for a written hearing due to his residence in Ohio, yet he now claims that this hearing did not occur. However, a CFEC hearing officer produced a detailed recommendation based on the written hearing, which Dominish has not addressed. Consequently, he has failed to prove that he was denied a hearing when CFEC notified him that his application lacked sufficient points for a permit.
Additionally, Dominish argues that CFEC erred by not conducting a second hearing following the Forquer v. State decision, which entitled him to such a hearing. However, Dominish, through his attorney, waived this opportunity in a communication with CFEC, expressing a preference for the Commission to handle the matter without a remand. Therefore, he cannot now claim a lack of hearing.
In terms of special and unavoidable circumstances, Dominish cites the Jones v. Commercial Fisheries Entry Commission case, asserting that CFEC should have considered his overall circumstances, including his medical issues and the tardiness of his application, to award him additional income dependence points. This matter involves agency expertise, and the court applies a "reasonable basis" test for review. Dominish's situation mirrors that of the Jones applicant, who sought to explain his lack of participation in the fishery to obtain points based on special circumstances.
CFEC erred by not considering evidence from Jones regarding his non-participation in a fishery, unlike Dominish, whose claims about his medical condition and late application were deemed inadequate. CFEC found Dominish's testimony indicated his physical condition did not prevent him from fishing; he failed to obtain his permit due to a late application, which he attributed to monitoring fishery closings. Dominish participated in the halibut fishery that year and did not provide sufficient medical documentation to support his claims for additional points. CFEC reasonably concluded that Dominish made no "reasonable efforts" in the application process, as evidenced by his late postmark. His arguments for unique circumstances that would justify additional points were unsupported, and CFEC's consideration of his claims was adequate. The superior court's affirmation of CFEC's denial of Dominish’s claims is upheld.
In terms of equal protection, Dominish's assertions lacked clarity, particularly regarding the absence of a hearing and the rationality of CFEC's point system, which were deemed waived due to vagueness. He also argued CFEC failed to inform him about alternative late application procedures, but did not demonstrate any requirement for CFEC to follow such procedures or how he fit within the criteria for late applications. As a result, his equal protection argument remains unsubstantiated and waived.
Dominish seeks a hearing before the Commercial Fisheries Entry Commission (CFEC) to argue that he applied for a Prince William Sound permit, which would entitle him to points through point pooling as per AS 16.43.250(d). He first raised this issue in December 1979, after CFEC had offered him a second hearing, which he declined during the ongoing evaluation of his re-opened application. Dominish inquired whether new point pooling legislation could provide him additional application points, but CFEC determined he was ineligible since he had not applied for permits other than the one for Cook Inlet.
While Dominish may have a potential argument regarding the necessity of a third hearing due to new legislation, he maintains that he was never offered a hearing, insisting he should have been allowed to pursue a point pooling claim. The court finds his argument unpersuasive, emphasizing that he needed to justify why the point pooling legislation warranted another hearing. Consequently, this argument is deemed waived.
The superior court's judgment is affirmed. Additionally, Dominish raises complaints about the inadequacy of the proceedings and notice of the hearing, but these were only mentioned in his reply brief, thus waived under Alaska Appellate Rule 212(c)(3). He also claimed late registration for salmon fishing licenses due to medical conditions, but failed to establish a causal link. In discussing prior participation in fisheries, he cites a case to argue for additional points but does not sufficiently develop this argument, leading to its waiver. The hearing officer's recommendations did not address the point pooling claim, as Dominish did not pursue it further after being informed it was not applicable. CFEC's final decision rejected Dominish's claim, confirming he had not applied to any fisheries besides Cook Inlet during the relevant period.
