*1 life-ending guardian to make no I would approval of a decision order immedi- decisions, ately guard- life-ending determine whether the current or to turn decisions ianship gives duty order it the guardian.6 temporary over to a or substitute to make end-of-life decisions for M.C. under likely, guardian ignore could Perhaps less 13.26.150(c)(8), so, AS and if it is simply the court's remain unwill order willing obligation expedi- fulfill its to or will decision, ing risking liability.7 civil to make a tiously petition under AS 18.26.125 for an reasonably possible But number of appropriate stay for I order relief. very may be evident cireumstances appeal this until reliable answers to these fashion, may guardian short still not be questions are known. "available" to make the end-of-life decisions M.C., given dismissal of this I in attempting get fear that to this case moot, appeal parties apparently then track, proper may inviting on a the court may again, have to start over somewhere at complications. hope wrong. further I I am level, good That would for no reason.8 everyone be most unfortunate for concerned extremely
with this difficult and emotion- laden case. guardian
Until considers both the 18.26.150(e)(8) court's of AS WILBER, Appellant, A. Glenn order, guardianship and the current guardian cannot determine whether it is obli- 18.26.150(e). gated to act under AS If the Alaska, STATE of COMMERCIAL guardian obligation, determines it has that ENTRY FISHERIES COM guardian then the must decide whether it is MISSION, Appellee. willing petition to act or will relief under No. S-12420. guardian power If AS 18.26.125. has the required to make decisions AS Supreme Court of Alaska. 18.26.150(e)(8) willing and is to exercise that June moot, power, appeal then the we say appeal cannot is moot until
guardian's decision clear. guardian may responsibility any proceeding relating 6. A want the guardianship to to the life-ending make difficult decisions as a matter of may by any person." be instituted interested AS family conscience or because are members readi- guardian participat- 13.26.115. Because has ly willing available and to make those decisions. case, impediment issuing ed in this there is no to Here, guardian public agency M.C.'s is a guardian an order to the in connection with this presumably policy has no or other limitations on appeal underlying litigation. or in the making life-ending AS decisions 13.26.150(e)(3), already But what of P.C.? The trial court although has we do not know. At time, family surrogate guard the same ruled he cannot serve there is a member who as a if the "available," life-ending wants to make the decisions under appeal ian is not and P.C.'s of that 13.26.150(e)(3). dynamic may This well lead to ruling now has been dismissed. Is he still a uncertainty. further party guardian below? What if the soon be comes not "available"? Does P.C. at somehow hand, unwilling guardian 7. On the other tempt appeal? to reinstate his Or does P.C. file a caught may object simply in these circumstances judge, new lawsuit before a different because the life-ending merely medical action to avoid civil appeal may preclude any dismissal of his as moot liability. estoppel judicata collateral or res effect of the findings trial court's and conclusions in this landscape proceedings 8. The of future trial court e.g., me, despite See, case? James G. v. G., Veronica Mem. explicit is unclear the court's Op. & J. No. 2006 WL *7 paragraphs 5-7 directives of its order (Alaska, 25, 2006) ("The general rule is presumes dismissal and remand. The order pending appeal that a case mooted cannot be guardian party underlying now is a to the effect.") given preclusive (citing litigation, problemat- 18A CHaruesAran which in and of itself is not Frograr anp Mitsr, "By accepting appointment, guardian & ic. Wricet Artaur R. Practice sub- Procepure (2d ed.2002)). personally jurisdiction § mits of the court in *2 Juneau, Stanley, Appel-
Michael A.D. lant. Lenhart, Attorney E. Assistant
Thomas General, Attorney Colberg, and Talis J. Gen- eral, Juneau, Appellee.
Justice, FABE,
Before: Chief EASTAUGH,
MATTHEWS, CARPENETI, Justices.
OPINION FABE, Justice. Chief
I. INTRODUCTION (ilenn challenges the Commercial Wilber (CFEC's) lim Entry Commission's Fisheries Alaska entry regulations for the Southeast ited Fishery. received Ge oduck1 fishery but he permit for the nontransferable main a transferable desires measuring past tains par geoduck understood, ) sampling tend dimly estimates (Panopea abrupta geoduck Pacific clam 1. The world, geographic vary widely broad weighing due to their largest clam in the intertidal identifying difficulty subti- up and the reaching spans distribution up pounds, life to ten Siddon, Christopher See dal habitats. Orensanz, al., et J.M. Lobo to 163 See Alaska Geoduck the Southeastern Evaluation Methuselah's in the Harvest Precaution Abrupta) Methodolo- (Panopea Stock Assessment Geiting Timely Difficulty Feedback Clams-the Game, Spe- Department Fish and gies, Alaska Dynamics, Slow-paced 61 Can. J. Aouat. from (2004). growth have slow 2007, avail- Geoducks 07-02, No. March Scr cial Publication http://www able taking harvest- to seven to reach rates, five PDFs/sp07-02.pdf. ecology size. The able ticularly past participants keep harvesting geoduck sea combination two "year" purposes of sons into one permit system.6 interim use participation during bill also directed that hardship, seope of the assessing fall outside moratorium could not be considered as evi agency's authority under the Limited dence of limited permit provisions. Act's initial issue *3 entry system following the moratorium.7 regulations reasonably Because the CFEC respond cireumstances of a to the unusual In 1998 and 1999 CFEC held a series of mid-year geoduck harvesting, moratorium on meetings in public Southeast Alaska to solicit in light and of the broad discretion afforded entry comment about whether to limit into Entry Act for CFEC under the Limited de geoduck fishery possible ways and to termining hardship, we affirm the entry necessary. limit if In November 1999 deny per to a transferable decision adopted regulations entry limiting CFEC for mit. geoduck fishery.8 regulations into the The moratorium, day took effect on the last of the 30, regulations June The II. AND 2000.9 established FACTS PROCEEDINGS 1, eligibility period 1992 to commercially Geoducks were first harvest- 1, July 1996. CFEC set the maximum num early ed Southeast Alaska in the 1970s. permits fishery geoduck ber for the at fishery throughout small remained 104.10 1970s, grew significantly throughout limiting entry After into the 1980s, point participants in 1990 proposed to establish a petitioned entry limit CFEC to into the system distributing classification fishery. petition, CFEC denied this and permits September 2000. The 19983,1996, three others that followed system points awarded based on the follow- Though petition, it each denied ing scale: analysis fishery undertook an to deter- entry mine whether should be limited.
Currently, the season for runs May from 1 to October 31. The Alaska Department manages of Fish and Game fishery by opening different locations at dif- throughout
ferent times the season. Legislature passed 1996 the Alaska 547; four-year Bill imposed House the bill entry moratorium on into the other Southeast Alaska dive fisheries.3 The 1, 1996, July moratorium took effect expiration legis reached the date set July lature on 2000.4 The bill directed public study regula- necessary CFEC took comment on the CFEC to entry geoduck fishery limit into the September through tions from October. All (AS the Limited Act 16.43.010- history divers participating with 16.43.990)5 largely prohibited The bill new given point system. were notice of the approxi- and allowed CFEC received comments from entering divers from (H.B.) 547, Leg., 2. House Bill 19th 2d Sess. (1996). (AAC) 8. 20 Alaska Administrative Code 05.806- 125, 2,§
. 3. Ch. SLA 1996 (1999). §§ 4. Id. 4-5. Seeid.; 4,§ ch. SLA 1996. §5. Id. 2. 05.320@). 10. 20 AAC d. 6.I points.16 Applicants zero ten classified divers, including mately forty Wilber. Nei- objected to at the nor other diver ther Wilber significant hardship level automatical ly years' permits and 1996 catch received transferable those combining the 1995 while below the minor level threshold re totals. permits. ceived ap nontransferable Those system points awarded CFEC's receiving plicants eigh between eleven and formally teen were unclassified but 1993, 1994, combined the first and 1995 with permits. nevertheless received transferable system awarded more half of 1996.11 in recent began harvesting geoduck in 1974. a maximum of However, participate during system Wilber did not awarded entry eligibilityperiod the limited twenty-four point system until 1995. points.12 CFEC's 1,849 did not evaluate eco pounds during Wilber harvested a Jan- *4 separately dependence nomic as CFEC con 1,842 uary opening, pounds during 1,483 in opening, pounds sidered the factors to be "linked" the October 1995 dur- fishery. geoduck ing January opening. applied CFEC reasoned that a Wilber entry permit geoduck for a limited for the ... "[ylearly provide harvest totals the best fishery regarding participation information and eco in March 2001. Wilber claimed ten dependence." points, possible points given nomic the maximum only that participated fishery he in the in 1995 with the first half of CFEC combined prior 1995 and 1996 and to 1992. CFEC majority geoduck 1996 because the of landed application points, classified Wilber's at ten caught in 1996 were after the start of the leaving point regula- one Wilber short of the moratorium1 thus could not be consid tory receiving threshold for a transferable point system. Additionally, in ered that the number CFEC believed small geoduck caught beginning requested in the hearing applica- 1996 Wilber on his 6,May hearing made it more reasonable to combine that tion on 2001. A CFEC offi- year only a with 1995. There was brief four- cer denied Wilber's request, concluding that day opening requiring of the it did not raise issues a hear- 9,708 Symonds Bay resulting ing. request a harvest of The officer treated as Wilber's pounds challenge nineteen divers. constitutional lim- comparison, approxi 104 divers harvested entry regulations ited and issued a written finding regulations decision the constitution- 250,000 mately pounds and after the began, moratorium al. 98 divers harvested The officer affirmed CFEC's classifica- 190,000 pounds in points. over the remainder of tion of ten attorney request Wilber hired an after his denied, adopted proposed point system hearing timely its for a and he petitioned for administrative review of the promulgated on November It also hearing petition officer's decision. Wilber's regulations establishing "significant" hardship required sought geo- "minor" levels as AS the commissioners' review of the 16.43.250(b)-(c).14 significant CFEC set the entry regulations, argu- duck limited ing that 20 AAC 05.808 exceeded CFEC's hardship twenty-four level at nineteen points.15 CFEC set the minor level statutory AS significant plicants 11. See 20 AAC 05.808. who would suffer economic hardship by fishery. exclusion from the 05.808(a). actually thirty- 12. 20 AAC There are (c) designate the The commission shall available, possible points four but CFEC's hard- regulations ap- priority those classifications of ship only scale will award "a maximum of 24 plicants who would suffer minor econom- points." hardship by fishery. ic exclusion from the 16.43.228(g). 13. See AS 05.809(a). 15. 20 AAC 16.43.250(b)-(c) provides: 14. AS (b) 05.809(b). designate The commission shall 16. 20 AAC ap- those classifications of measuring eligibility 16493.250(a)(2).17 preference for argued that ture's also expressed Constitu in the dive fish- the Alaska calendar as regulations violated the protection. Wilber equal guarantee legislation and AS 16.48.250. ery tion's moratorium "fairly revised to system be asked changing concluded Commission asserting that weight participation," stage in the system at such a late "qualify for he would this was done when because process would be detrimental per freely transferable for a sufficient numerous require recalculation mit." very applications near the end completed peti- permit process. denied Wilber's The commissioners decision noted tion. The commissioners' appealed the decision Commission of AS narrow superior court superior court. The 16.48.250(a)(2) provi- account for the did not phrase "when reason- determined that reasonable phrase of the "when sion's use 16.48.250(a) fishery" recog- for the able saw the fishery." The commissioners knowledge has a "detailed nizes period eighteen-month of an use biology, history, politics, about im- pragmatic solution to mechanics, probably aspects several in the middle of a position of a moratorium fishery." superior court also using an year. They reasoned hardship factors re- weighing ruled that light made sense eighteen-month period *5 cut-off, policy very quires short to make fundamental statutory mid-year CFEC "thie] that, season, and small participation, superior low choices. The court concluded that noted poundage." The Commission expertise poli- and fundamental given agency commenting pro- the on of the divers none cy driving regulation, the Wilber concerns regulations-including Wil- posed final regulation that CFEC's failed to demonstrate period. time The objected to this ber-had basis in the law. The lacked a reasonable regulations that its did thus held Commission ap- denied superior court therefore equal violate the Alaska Constitution's the Commission's decision peal and affirmed protection clause. July on that, even if pointed out The Commission appeals. Wilber the criticism of CFEC Wilber had valid an alternative regulation, he failed offer getting in him that would result scheme III STANDARDOF REVIEW his relief of a transferable desired agency's regulation an We review changing that also noted The Commission "consistent with and reason for whether is regulations proposed as Wilber the au ably necessary implement the statutes existing appli- adjusting all of the necessitate adoption."1 Toward this end thorizing [its] cations; with the this could leave Wilber (1) whether CFEC exceeded its we consider: with. The permit he started nontransferable promulgating regu statutory agency had explained that Commission (2) lation; regulation is reason whether using suggested as considered seasons (8) arbitrary; able and not rejected had appeal, in his
Wilber
regulation
with other statutes or
satisfy
legisla-
conflicts
in a desire to
alternative
(1)
dependence];
part:
provides
[economic
relevant
17. AS 16.43.250
(2)
past participation
fish-
extent of
(a) Following
of the maxi-
the establishment
including,
for the
when reasonable
fishery,
ery,
gear
particular
of units of
mum number
participation
of
of
the number
16.43.240,
the commission
under AS
consistency
fishery,
of
and the
regulations establishing qualifica-
adopt
shall
year.
during each
entry permits
ranking applicants for
tions for
they
degree
according
which
fishery.
State,
109 P.3d
by exclusion from the
18. Grunert
would suffer
omitted) (altera-
2005) (internal quotation marks
priority
regulations
classifica-
The
shall define
original) (quoting
Alaska Airboat
tion in
Interior
applicants
similarly
based
tions of
situated
following
upon a reasonable balance of the
Game,
Ass'n v.
Bd.
(Alaska 2001)).
hardship standards:
provisions.19
the inter
constitutional
When
contrary
to its other
and nor-
pretation
question
practice.
of a statute or other
law mal
expertise
complex
as to
implicates "agency
"year"
CFEC maintains that
is sub
or
to the formulation of funda
matters
as
ject
interpretations,
to different
many of
agency's in
policy,"
mental
we defer to the
days.
argues
which exceed 365
CFEC
long as it has a "reasonable
terpretation so
it also has broad discretion to assess hard
in the law.20 We have held
basis"
16.48.250,
ship
required by
AS
and that its
implementation
hardship pro
decision
this case falls well within that
of the Limited
Act "entails
visions
specifically
discretion.
contends
expertise
formu
both administrative
and the
amendment
policy."2
lation fundamental
16.43.250(a) in 1985 to use the term "when
DISCUSSION
IV.
fishery," gave
reasonable
it discretion
point systems
to craft
peceu-
tailored to the
16.48.250(a)(2)
argues that AS
re-
Wilber
particular fishery.
of a
Tiarities
employ
year
quires CFEC to
days
it defines
classifica-
when
superior
ap-
court held that CFEC's
entry
limiting
tions for
into Alaska fisheries.
reasonable,
proach
part
because the
argues
if
Alternatively,
that even
statute affords CFEC broad discretion to
adopt
eighteen-month qualifi-
can
peculiarities
fishery."
"account for
of a
period,
pe-
cation
the 1995-1996
superior
regulation gave
court noted that the
adopted
that it
for the
riod
credit for his
arbitrary
it col-
and unreasonable because
purpose,
consistent with the statute's
lapses
single qualification
two seasons into a
nothing
approach,
about CFEC's
period
gives
insufficient consideration to
including its treatment of the 1995 and 1996
fishery.
participants
the most recent
harvests, placed
rule outside of
disagree.
We
discretionary authority.
agree
its
We
with
*6
superior
court.
Statutory
A.
Acted
Its
Within
Entry
purpose
The Limited
Act's
is to
Authority
It
when
Combined
"promote the conservation and the sustained
Pre-Moratorium
1996 Geoduck
yield management
fishery
of Alaska's
re
Fishery Opening and the 1995 Cal-
stability
source and the economic health and
endar Year.
by
in
fishing
regulating
of commercial
Alaska
argument
central
in this case is
controlling entry ...
and
into the commercial
"year"
that the
use of the term
public
fisheries in the
and without
interest
measuring
in AS 16.48.250 limits CFEC to
2
unjust
that
discrimination."2 We have held
past participation
in twelve-month incre-
unjust
avoiding
requires
discrimination
argues
meaning
ments.
that
of
"ranking applicants for
of
the limited number
"year"
plain,
the term
and that CFEC has
permits 'according
degree
hardship
legislative
failed to offer
evidence of
by
which
would suffer
exelu
[the fisherman]
judicial
per-
intent or
construction that would
23
fishery.'"
specific
sion from the
The
mor
departing
plain meaning.
mit
from that
Wil-
legislation
required
atorium
in this case also
argues
authority
that
to choose
ber
CFEC's
point system
weighted
that
towards
among
hardship
the AS 16.48.250
factors
participants.24
recent
"modify"
does not include
to
Finally,
argues
purposes
those factors.
These broad
are well served
took into account the
20 AAC 05.808. CFEC
interpretation
"year" in
CFEC's
this case
State,
(citing
quoting
Id.
Bd.
22. AS 16.43.010.
19.
and
Meter v.
Fisheries,
172,
(Alaska 1987)).
739 P.2d
State,
23.
Comm'n v.
Commercial
Fisheries Entry
Comm'n,
Rose
Commercial
Fisheries Entry
1980).
1255,
606 P.2d
Apokedak,
(Alaska 1982).
154,
1, §
24. Ch.
SLA 1996.
legislature
measuring hardship.
The
each
caught
divers
amount
by amend
grant of discretion
system that
confirmed this
ranking
with a
year,
up
came
1985, following
in
our deci
catch,
ing
16.48.250
and awarded
compared
diver's
each
in Rutter v.
Commercial Fisheries
caught
had
sion
who
those divers
more
Commission.26
years pre-
most recent
geoduck in the
more
a
advances
ceding
moratorium. Wilber
Rutter,
considered former AS
we
statutory term
narrow
16.43.250(a),
provided
which
meaning
the term's
"year," and asserts
certain enumerated factors
to consider
hard-
authority to assess
constrains CFEC's
degree of economic
assessing
applicant's
are not
past participation. We
ship based on
in-a
dependence on-and
to
legislature
intended
convinced
.250(a)
interpreted
fishery.27
subsection
We
authority in this manner.
tether CFEC's
all
requiring that CFEC consider
factors,
statutory
and invalidated a CFEC
in this case considers
regulation
legisla
failed to do so.28 The
regulation that
looking
how much
both factors
by amending the statute
responded
ture
caught during four different
given
diver
1992,1998,
July
and 1995to
periods:
replace
phrase preceding the
1985 to
factors-"including
limit
but not
last,
category simply
enumerated
anomalous
The
phrase
to"-with the
"when reasonable
during the 1995 sea
ed
measures
accompa
fishery." The letter of intent
par
the nineteen divers who
son for all but
amending legislation stated that
nying the
four-day opening of the fish
ticipated in the
to
legislature's intent was to allow CFEC
mid-
Symonds Bay prior
to the 1996
ery
particular hardship
"disregard one or more
hence considers
moratorium. CFEC
season
ranking applicants
if the
years,
when
history
a number of
standards
over
diver's
light
unreasonable
history during each of
standards were
the diver's
it considers
The letter
further
particular fishery."30
gives
more
regulation
those
recognizes
pat
years,
legislature
"The
more
more
stated:
points to
who fished
divers
moratorium,
and extent of economic
caught
terns
recently prior to the
vary from
dependence
div
gives
It
fewer
geoduck.
more
that,
developing point systems
recently,
intended
years, less
who fished fewer
ers
fisheries,
exercise
[CFEC]
for limited
should
regulation
thus
caught
geoduck.
less
reasonable,
past par
straightforward
discretion
how to measure
presents
dependence."3
ticipation and economic
evaluating the economic
means of
from
individuals excluded
that would befall
in a
revisited our decision
Rutter
We
*7
the Limited En
fishery, consistent with
long
legislature
after the
separate case not
try Act's mandate.25
State,
Haynes v.
passed its amendment.
In
Commission,32
Entry
analysis
Fisheries
we draw from our
Commercial
The conclusion
"clearly
the amendment
by
recognized
discre we
the text is reinforced
the broad
to the CFEC to award
grants
discretion
point systems
craft
afforded CFEC to
tion
ves-
alternative
investment
P.2d at 161.
Rose,
25. See
occupations,
gear;
sels and
(2)
fishery,
extent of
in the
1983),
(Alaska
superseded by
26.
reasonably
legislature's mid-year
mor
MATTHEWS, Justice, concurring.
atorium,
expressly
situation
contem
concurring opinion
This
concerns
issue
plated by the statute. This falls well within
properly
has not been
raised and there-
legislature in
the discretion envisioned
fore
I
separately
is waived.
write
because
16.48.250,
its 1985 amendments to AS
as it
may
important
the issue
when other win-
point system
enables CFEC to tailor its
to a
subject
ter fisheries are made
to limited en-
unique
geoduck fishery.34
cireumstance of the
try.
noted,
already
determining
As we have
fishing
Geoduck
seasons run from October
hardship an individual would suffer from ex
through May.1 But the
past
CFEC measures
fishery requires
clusion from a
"both admin
participation on a calendar
rather
than a
expertise
istrative
and the formulation of
year.
seasonal
This measurement
can seri
policy."
only
fundamental
Not
did CFEC
ously
past
distort
the extent of a fisherman's
have the broad discretion to
create
harvest,
participation. A fisherman
has
who
fishery point system,
it needed to use this
may
ed
for two seasons
have done
imposi
discretion because the
Likewise,
year.
so in one calendar
a fisher
year
tion of a moratorium in the middle of a
participated
man who has
Though
unusual.36
one season
Wilber notes
may
CFEC has not
have done so in two
combined calendar
point systems,
objective
other
examples
he fails to cite
Since
mandated
statute is to
legislature
imposed
where the
type
past
has
of measure the extent of a fisherman's
mid-year moratorium that
participation,2
apparent
occurred here.
it seems
that some
recognition
biological
geo-
of these
reasons
Id. at 894.
harvesting regulations
registration
duck
define
year
starting
ending
on
October 1
on
34. See 1985 Senate Journal 483.
September 30. 5 Alaska Administrative Code
(AAC) 38.146(b) (2007).
gear
All
and vessels
Rose,
where
thresholds established
top tier harvest
at the
is
evident that Wilber
regulation,3
is
Yet
fisherman.
and effective
an industrious
regulation
under
received credit
participation and re
only
year of
one
Jr.,
DIERINGER,
Appellant,
F.
James
contrast,
By
a fisher
only
points.
ten
ceived
season,
one
participated
man who
1,000
1994-95,
say
pounds in
landing
that of
MARTIN, Appellee.
Darrel
pounds
1994 and 500
October
No. S-12400.
points
nineteen
and be
receive
a transferrable
eligible to receive
Alaska.
Supreme Court of
law,
may review
courts
Under Alaska
July3,
they are
to determine
arbitrary.4
Successful
and not
reasonable
usually
are
this
challenges under
standard
is,
That
courts find that
process oriented.
regulation
entity
promulgating
important
factor.
failed to consider
However,
simply
are
enactments
sometimes
remotely related to reason
so unfair or so
they must be consid
objectives that
able
on substantive
arbitrary
and unreasonable
ered
groun ds.5
might
made
convincing case
I think a
arbitrary
question
regulation
determining gross weekly earnings that was
ing past participation
in the Southeastern
Com-
king
on a seasonal
down in Gilmore v. Alaska Workers'
crab
struck
Alaska brown
(Alaska 1994),
05.695(a)
Board,
basis);
(awarding past partic-
pensation