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Kuzmin v. State, Commercial Fisheries Entry Com'n

Supreme Court of Alaska

December 11, 2009

Fedor Z. KUZMIN, Appellant,
v.
STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee.

Page 87

Michael Hough, Homer, for Appellant.

Vanessa M. Lamantia, Assistant Attorney General, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee.

Before: FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The Commercial Fisheries Entry Commission (CFEC) denied Fedor Kuzmin's limited entry crab permit application because it found that he had insufficient points. Kuzmin appeals, arguing that the CFEC abused its discretion by refusing to credit him points based on crab deliveries he allegedly made as a partner in his son Romil's 2001 fishing operation. Because substantial evidence supported the CFEC's finding that Kuzmin was not in joint control of Romil's 2001 fishing operation, as 20 Alaska Administrative Code (AAC) 05.834(c) required, we affirm the superior court order affirming the CFEC decision that denied Kuzmin's entry permit application.

II. FACTS AND PROCEEDINGS

In 2004 Fedor Kuzmin applied to Alaska's Commercial Fisheries Entry Commission for an entry permit to the Kodiak bairdi Tanner crab pot fishery. This permit was required because the Limited Entry Act, which promotes the conservation and sustained yield management of Alaska's fisheries,[1] designates the Kodiak crab fishery as one that requires limitation of entry.[2] The CFEC allocates a maximum of 180 entry permits to the Kodiak bairdi Tanner crab pot fishery each year, ranking applicants according to their degree of economic dependence on the fishery and the extent of their past participation in the fishery.[3]

The CFEC has established a zero-to-sixty point scale for the Kodiak crab fishery.[4] An applicant can claim a maximum of twenty points for past participation in the fishery,

Page 88

thirty-five points for consistent participation in the fishery, and five points for economic dependence.[5]

When Kuzmin applied for an entry permit to the Kodiak crab fishery in 2004, he indicated that he had harvested at least 100 pounds of crab in 2001 and more than 5,600 pounds of crab in 1994 from the fishery. Based on the amount he had harvested, Kuzmin claimed that he should be awarded nineteen points for consistent participation. Because he had harvested crab in two separate calendar years, Kuzmin claimed that he should be awarded an additional thirteen points for past participation.

In October 2004 the CFEC sent Kuzmin a letter stating that additional information was needed to classify his application. Despite Kuzmin's claim that he harvested at least 100 pounds of crab in 2001, the letter stated that CFEC did not have any landings attributed to Kuzmin's permit in 2001.

Kuzmin submitted a statement alleging that he went crab fishing in January 2001 with his son Romil. Kuzmin stated that they used Kuzmin's crab pots and fished off Romil's boat as partners, splitting in half both income and expenses. Romil submitted an affidavit stating that Kuzmin worked as a deckhand on Romil's boat in 2001 and was paid in cash. Although Romil stated that he used Kuzmin's pots that year, he referred to Kuzmin as his " deckhand" and did not refer to him as his partner.

In December 2004 the CFEC classified Kuzmin's entry permit application at thirteen points. The CFEC credited Kuzmin with six points for harvesting at least 100 pounds but less than 5,600 pounds of crab in 1994 and seven points for commercially harvesting bairdi Tanner crab in one calendar year. The CFEC did not award Kuzmin points based on his claim that he had harvested at least 100 pounds of crab in 2001.

In January 2005 Kuzmin asked the CFEC for an administrative hearing. A hearing was held on May 19, 2005 with Kuzmin and his counsel appearing telephonically from Cordova. The only witnesses who testified about Kuzmin's 2001 fishing activities were Kuzmin and his son Romil. The hearing officer found that Kuzmin had " not shown with a preponderance of the evidence" that he was in joint control of Romil's 2001 fishing operation and therefore entitled to partnership participation points. Because Kuzmin " did not meet his burden to show the commission's determination was in error," his application ...


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