Fishing lawsuit could cost state $30 million

Posted: Tuesday, January 23, 2001

JUNEAU (AP) -- A lawsuit by out-of-state commercial fishermen could cost the state $30 million, but the bill will be lower if the state wins an appeal, a state attorney said Monday.

The cost comes from a 19-year-old lawsuit in which a court ruled Alaska can't charge nonresidents three times what it charges residents for commercial fishing fees because the U.S. Constitution strongly protects an individual's right to pursue a livelihood.

The court did say, however, that the state's fee schedule can credit residents for fisheries-related expenses they pay through the state budget.

What is being decided now is how much the state can claim residents are paying. Superior Court Judge Peter Michalski last year threw out four of six budget categories the state wanted to claim residents were paying.

Based on that decision, the state is guessing the bill could be as high as $30 million, assistant attorney general Stephen White said. That includes payments to about 11,000 members of the class-action suit, interest back to 1984 and attorney's fees.

''That's based on a lot of issues and a lot of assumptions we're going to appeal,'' White said. ''I think that's the most we'll bear in terms of liability.''

The state will finish calculating the costs by March 15, he said. Once the superior court judge signs off on that figure, the state will try to lower that bill through an appeal to the state Supreme Court.

It will argue the court should have credited residents for other payments than it did, that the plaintiffs don't belong in a class-action suit and that interest should not be charged all the way back to 1984.

The state wanted the court to count money spent on state employees whose work is related to commercial fishing and the overhead costs associated with that work. The judge allowed that.

The judge didn't agree, however, to let the state count money it spends on four other categories, including subsidizing fish hatchery loans, building ports and harbors and the amount of road, airport and similar government spending that supports that part of the population that wouldn't be in Alaska without the industry.

If the state had been allowed to count all those categories, it calculated residents would actually pay more than nonresidents so the state would owe the nonresidents nothing from the lawsuit, White said.

White's discussion of the lawsuit Monday with members of the House Finance Committee drew frustrated responses.

''I can't understand the judge's or the court's logic in my mind giving a preference to out-of-state residents over residents,'' Finance Chairman Eldon Mulder said. ''Is it possible, Steve, to tax retroactively?''

Probably not, White replied.

Mulder suggested passing a tax and giving a credit back to those who pay property tax in Alaska, a scheme White said might not pass constitutional muster.

White said he anticipates a final ruling by the state Supreme Court sometime in 2002. The out-of-state fishermen could attempt yet another appeal to the US. Supreme court, White said, but the state has no issues that could be appealed further.

The suit was filed in 1982 by Donald Carlson, and five other fishermen. It became a class-action suit in 1984. Decisions in the case have been appealed to the Alaska Supreme Court twice, and the fishermen tried once to get the U.S. Supreme Court to hear an aspect of the case, but the federal court declined.

The state doesn't need to worry about its higher charges for nonresident sport hunting and fishing licenses because recreational pursuits don't have the same constitutional protections as the right to pursue a livelihood, White said.



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