dissenting.
I dissent from the court’s holding that it was reasonable for the CFEC to deny Rose an award of. “special circumstances” points.
20 AAC 05.630(b)(2) reads:
[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[.]
Initially, the CFEC’s brief takes the position that “special” means “unavoidable.” This is plainly inconsistent with the many adjudications in which it has indicated that “special” has a broader meaning than “unavoidable.” Although one early decision (CFEC File 75-1) equated the two terms in dicta, it has apparently been superseded by the numerous subsequent decisions distinguishing the two terms. The CFEC’s position on appeal on this point seems at odds with its almost completely consistent pronouncements in the past (except for File 75-1), and is totally unsupportable.1
I think that, whatever definition of the term “special” is adopted,2 Rose’s situation presents a “special” situation regarding income dependence points. The applicable percentages are as follows:
*1641970 71%
1971 90%
1972 73%
1973 97%
1974 98%
For Rose to receive no points with his record of economic dependence is simply not defensible. This unjust result does not stem solely from the administrative closure of the Prince William Sound purse seine fishery in 1972, but from 20 AAC 05.650(a) coupled with 20 AAC 05.630(b) and 20 AAC 05.630(c)(2). Rose is prevented from receiving any points for his 73% dependency in 1972 by the operation of 20 AAC 05.650(a), which denies points for any year in which a fishery is closed for an entire season. As noted, the CFEC substituted 1971 for 1972 for purposes of income dependency. However, Rose is equally unable to receive any points for his 90% dependency in the, substituted year because, not having been a gear license holder in 1971, he can claim no points for income dependence.
I think that this paradoxical result was not contemplated by the regulations, and surely meets the definition of “special circumstances,” even under the most restrictive definition. It was, as far as I can tell from this record, unavoidable; nothing Rose could have done, including participating in the Coghill opening against the Association’s wishes, would have prevented this result.3 It is also non-universal. Far from affecting all PWS purse seine fishers alike, as does the outright denial of past and consistent participation points, this differentiates between those who first acquired a gear license in 1972 and those who already had one in 1970.4 Although awarding the latter group more points makes sense in the area of past and consistent participation points, it does not make sense when the question is one of economic dependence as of January 1, 1973.
I thus conclude that the CFEC had no reasonable basis for denying Rose some measure of income dependence points.5
Under the regulations, the CFEC has discretion to award up to ten points for “special circumstances.” For the Prince William Sound purse seine fishery, the following points levels are set by the tables:
For 1970; if applicant was 90% dependent, 4 points
if applicant was 60% dependent, 2 points
For 1971: if applicant was 90% dependent, 6 points
*165if applicant was 60% dependent, 3 points
20 AAC 05.630(b)(1), (c)(2).
Since the CFEC substituted another year for 1972, thereby depriving Rose of any recognition of income dependence points because he only acquired his gear license in 1972,1 think that the income percentage of the year substituted, 1971, ought to be regarded as if earned during 1972. This would result in an additional 6 points for Rose, which entitles him to a permit.
I thus conclude that there was no reasonable basis for the denial of “special circumstances” points to Rose.6
. “The dominant law clearly is that an agency must either follow its own precedents or explain why it departs from them.” 2 K. Davis, Administrative Law Treatise § 8:9, at 198 (2d ed. 1979).
. The CFEC hearing officer put forward a definition of “special” in his recommended decision indicating that the term encompasses only one type of situation beyond the scope of the term “unavoidable,” i.e., the so-called “calendar year” exception. It applies to
applicants [who] had minimal contact with commercial fishing until 1972. During 1972 they ceased their non-fishing work and relied almost exclusively on commercial fishing through the remainder of 1972 and into 1973 and 1974. Because their income dependence percentage was initially calculated for the calendar year 1972 it was quite low, but as of the qualification date of January 1, 1973, it was over 90%. The calendar year method of calculating income dependence percentage was not a realistic reflection of the applicant’s true dependence on the fishery. 6 points were therefore awarded.
The Commission itself was apparently concerned about this narrowing of the definition of “special,” as it specifically requested that Rose’s attorney respond to the hearing officer’s recommended decision with some discussion of these definitions. As the Commission explicitly changed its ground of decision on this point from the hearing officer’s recommended decision, it apparently disagreed with his formulation of the definition of the term “special,” but its decision casts no light on whether it considered the “calendar year” exception to be the only respect in which its definition of “special” is broader than its definition of “unavoidable.”
. The CFEC’s position is that, even had Rose participated in the Coghill opening, it would not award him any points, under 20 AAC 05.-650(a).
. I think that this adverse classification of Rose does not amount to an equal protection violation justifying the invalidation of one or more of the regulations which combine to have this peculiar effect; but I think it cannot be denied that they treat Rose differently than other Prince William Sound purse seine fishers, to his disadvantage. It is this “non-universality” which distinguishes this situation from the denial of past arid consistent participation points. The latter impacted equally on all Prince William Sound purse seine applicants. Here, the CFEC has removed points from all applicants, thereby treating them all equally; but it has then further provided for a substitute year, which impacts unequally on those who had no gear license in 1970 and thus can be awarded no income dependence points.
. The CFEC’s own decisions provide for more flexibility in administering the “special circumstances” income dependence points than in administering the “unavoidable circumstances” past and consistent participation points.
Past participation, by its nature, must be measured in historical terms, since it is achieved only by actually fishing. The only evidence of past participation is past participation. Economic dependence, and more particularly income dependence, is a more fluid notion that may be interpreted in strict historical terms, as for example the applicant’s income dependence in 1971 and 1972 or by some other method. The statutory intention to measure income dependence as of January 1, 1973 way be more accurately achieved by some other method if the strict historical method fails to accurately reflect a particular applicant’s actual dependence as of January 1, 1973.
CFEC File No. 75-28 (emphasis in original). This fluidity is, I believe, another reason why “special circumstances” income dependence points should more easily hurdle the barrier of 22 AAC 05.650(a), whereas “unavoidable circumstances” past participation points may not.
. I will reserve for a more appropriate occasion comment upon the court’s apparent sub silen-tio interment of the balancing element of Alaska’s equal protection test. See Williams v. Zobel, 619 P.2d 448, 457 n.30 (Alaska 1980); State v. Erickson, 574 P.2d 1, 12 (Alaska 1978).