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CIFF, ADFG argue need for more information in lawsuit over 2013 management

Posted: May 29, 2014 - 2:49pm

ANCHORAGE — A state judge heard oral argument yesterday about the lawsuit over 2013 management of Cook Inlet salmon fisheries.

The Cook Inlet Fishermen’s Fund, or CIFF, sued the Alaska Department of Fish and Game in July 2013, asserting that fisheries managers did not follow Cook Inlet salmon management plans appropriately in 2013, causing harm to commercial fishermen. At the time, CIFF asked for a preliminary injunction requiring Fish and Game to follow certain aspects of the Cook Inlet salmon management plans, and both sides argued the case in Anchorage Superior Court. Judge Andrew Guidi ruled that the injunction was not necessary, in part because a remedy was available if he later determined that managers had erred, and in part because he would simply be substituting the court’s judgment for managers if he ruled in favor of changing their practices.

ADFG has asked for summary judgment, which was the focus of oral argument yesterday.

The state has asked the judge to uphold Fish and Game’s interpretation of the management plans in its motion for summary judgment; CIFF has opposed that.

The fishermen’s fund asked the judge to at least allow the process to continue to discovery before making a decision.

At the end of the hearing, Judge Andrew Guidi said he couldn’t make a prediction on how or when he’d rule, but that he recognized the importance of the case to the public.

Guidi said the two sides had a pretty good go at each other in court last summer, and he would be tasked with deciding whether the evidence from last summer was enough to say that there’s no issue of material fact, as the State has argued.

Whether or not there are remaining issues of material fact was the focus of much of the testimony at Thursday’s hearing.

State Department of Law Assistant Attorney General Mike Mitchell said that it’s up to CIFF to prove that the state erred in its management last summer, and has not done so.

“The evidence shows that the department did not throw the plans out the window,” Mitchell said.

Mitchell noted that Guidi had ruled against the preliminary injunction, and said that during testimony last summer, there was no discussion of missing facts, or the need for more information about the management that was occurring.

Bruce Weyhrauch, who represented CIFF, reiterated that organization’s position that ADFG strayed from the management plans and made allocative decisions without the authority to do so, calling the 2013 decisions “willfull mismanagment.”

Weyhrauch has asked that CIFF be able to go through discovery and get further information about how 2013 management decisions were made before the judge decides whether or not ADFG was in the right.

Guidi asked why CIFF thought there was enough evidence last summer, but no longer did, and Weyhrauch responded that the injunction had a different standard than summary judgment, and the issues were somewhat different.

The two sides also discussed this winter’s Board of Fisheries Upper Cook Inlet meeting, which occurred during two weeks in January and February.

Mitchell said that CIFF had not gone to the board with its complaints over how ADFG managed in 2013, although the board would be the correct way to address the issue, he said. He also noted that the board made significant changes to the management plans this year.

CIFF president John McCombs, however, did submit numerous proposals to the Board of Fisheries seeking management plan changes, and the CIFF members who attended the hearing all attended the BOF meeting as well, citing 2013 management in their public testimony and discussions with board members.

Weyhrauch said that ADFG’s comment in its reply brief that if CIFF had raised the issue with the BOF, the board would have dismissed it, did not paint a picture of the board that was open to the public or impartial.

If Guidi does not rule in support of the state’s motion for summary judgement, the legal process will continue with a period for discovery. According to the current plan, that would be followed by a five-day trial tentatively scheduled for the first week of November.

No one has requested a jury trial, so the case would likely be decided by the judge.

Molly Dischner can be reached at molly.dischner@alaskajournal.com.

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