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Judge to reconsider ruling on emergency salmon regulations

Posted: August 5, 2011 - 7:00am

Anchorage Superior Court Judge Andrew Guidi will reconsider his July 13 ruling that voided emergency revisions to Upper Cook Inlet salmon regulations.

Although the regulations tossed out by Guidi applied only through July 31, the state of Alaska is acting to protect the authority of agencies and bodies like the Board of Fisheries to take emergency action to correct errors in regulatory language.

Guidi granted the state motion for reconsideration July 27, and gave the commercial fishing plaintiffs in the case 15 days to respond to the state arguments.

After the Board of Fisheries took emergency action June 30 to correct errors in regulations it adopted at its March meeting, United Cook Inlet Drift Association, Copper River Seafoods and several fishermen filed a motion July 8 seeking an injunction against the revised regulations and arguing that the situation did not qualify as an emergency under statute.

Guidi agreed the situation was not an emergency, and granted a partial injunction and temporary restraining order against enforcement of the revised regulations.

At the March board meeting, new management measures were adopted that would have restricted the commercial drift fleet to either Area 1 - stretching from just south of the Kasilof River to Anchor Point in the Central District of Cook Inlet - or expanded corridors along the mouths of the Kenai and Kasilof rivers during one of its two regular fishing periods per week from July 15 to July 31.

Previous management allowed for the drift fleet to fish both areas twice per week on Mondays and Thursdays. When the Department of Fish and Game wrote the regulations, the phrase "or both" was wrongly placed at the end of the sentence and kept Area 1 and the expanded corridors available in each period instead of just once per week.

The regulations written by ADFG also erroneously allowed the use of the expanded corridors in the July 14 fishing period when the board intent was for the original narrower corridors along the Kenai and Kasilof to be used by the drift fleet.

When sport fishing groups brought an emergency petition to the Board of Fisheries June 13 noting the mistakes, ADFG, which completed the regulations April 21, advised the board that the department could not take action to correct the regulatory language without adhering to the Administrative Procedures Act.

The APA requires public notice and comment periods that would have prevented the rules from being corrected in time for the season.

The board held an emergency meeting June 30. By 4-3 votes, the board declared an emergency and adopted the corrected language.

Guidi ruled that the board's finding of an emergency was improper because errors in regulatory language are not "unforeseen or unexpected" and such emergency findings are intended to be "rare."

The state filed a motion for reconsideration July 25 asserting that Guidi not only misapplied the statute regarding what constitutes an emergency, but that he reached a conclusion on the merits of the case without allowing the state an opportunity to submit arguments.

In its motion, the state noted it had only one business day to prepare its response to the action filed by UCIDA and Copper River Seafoods before the July 12 hearing, and that its arguments were focused solely on the standards for a temporary restraining order.

"The state had no reasonable opportunity to compile and present additional evidence on the relative infrequency of such substantive errors (in comparison to technical errors such as in geographic coordinates) and develop its arguments on the appropriate standards," the state wrote. "... This Court should also reconsider this case because it overlooked or misconceived a material fact, namely that the record contained no evidence that regulatory error in this case was foreseen."

When Guidi ruled July 13 that the situation caused by regulatory errors was not an emergency, he relied on the 2006 board action to delegate responsibility for writing regulations to ADFG.

In that action, the board noted that "errors or omissions, such as incorrect phrasing of board conceptual regulatory language, do happen in the course of regulatory writing during a board cycle, and the board recognizes the need to correct such problems to make the regulations consistent with the board's original intent."

Guidi interpreted this action to mean that, "it is obvious that errors in the Department's codification are to be expected, and possibly even commonplace."

Errors in language, therefore, are not an "unforeseen or unexpected" event that qualifies as an emergency, he concluded.

However, the state argued in its July 25 motion that the commercial fishermen who sued to stop the emergency regulations, "must show that the board foresaw and expected such a regulatory error ... No evidence supported the proposition that the board foresaw or expected this particular error. In fact, the record indicates the board would not have foreseen or expected this particular error because (1) the language of [the] proposal it passed is contrary to the codified language and (2) the board, in March, unanimously adopted a written finding stating its intent."

Part of the emergency statute also requires that the "unforeseen or unexpected event" must threaten a resource. The board adopted the restrictions on the drift fleet to allow more Northern District salmon and Susitna sockeye to pass through Cook Inlet. Six Northern District stocks and Susitna sockeye are listed as stocks of concern by the board.

"Which is why the regulatory error created an emergency situation: because the consequence of the error would result in harm to those stocks if emergency regulatory action were not taken," the state wrote.

No matter the legal outcome, the board will have to act to permanently correct the regulation. Even if the emergency regulations were eventually upheld, by law they expire after 120 days. To add the item to a future meeting, either the Board will generate a motion to take it up or a member of the public may petition to add it to a future agenda.

The deadline is Aug. 20 for the public to submit a petition for an agenda change to be considered by the board at its October meeting.

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