Alaska faces $30 million bill from fee lawsuit, someday

Posted: Sunday, March 23, 2003

ANCHORAGE (AP) -- The state of Alaska faces a bill of nearly $30 million to pay refunds to commercial fishermen from other states who forked over triple the amount paid by Alaskans for the necessary licenses and permits.

A big bill is the likely result of a two-decade-long lawsuit that's been to the Alaska Supreme Court three times and could last a lot longer. The state's highest court earlier this month sent the case back to Superior Court for some final tweaking.

Juneau lawyer Loren Domke has pursued it from the beginning. He mounted the class-action challenge in 1984.

Domke says he was motivated when state officials went after an Alaska resident, claiming he spent too much time Outside and should pay the nonresident amount.

''Quite a few guys go south in the winter and have backgrounds as Alaskans. Every few years the (Commercial Fisheries Entry Commission) would run search-and-destroy missions,'' Domke says. Some fishermen were even hit with criminal charges, the lawyer said.

The whole thing goes against U.S. law, Domke maintains.

The Constitution bars states from interfering with interstate commerce, Domke says, and charging higher fees does just that. The courts are basically agreeing with him.

The Alaska Supreme Court has ruled that the state can charge somewhat higher fees for nonresidents. But only enough to ''compensate the state for any added enforcement burden they may impose or for any conservation expenditures from taxes which only residents pay.''

According to the court, nonresidents should be given ''equal access to the resource on the condition that they make a contribution to the maintenance of the resource equal to that made by state residents.''

For some permit holders, the nonresident fee used to amount to $750 a year, versus $250 for residents. And that's too much difference, says the state's highest court.

Using the Alaska Supreme Court's reasoning, Superior Court Judge Peter A. Michalski set out a formula for the differential. Nonresidents could be charged $156 more than residents for 1996, the base year used in the calculation.

The Alaska Supreme Court reviewed his reasoning and in a ruling earlier this month decided the state should be charge for hatcheries and some other expenses. Domke estimates those will add about $20 a year to the tab for each nonresident fisherman.

The differential is calculated individually for each year back to 1984, essentially based on the amount the state spent on fisheries divided by the population.

With interest over all those years at 10.5 percent, the biggest refund check for a nonresident permit holder could be about $30,000 so far, with an average of perhaps $2,500 for the 11,000 people involved.

But like the Exxon Valdez spill damage case, this one isn't over yet.

''We're years away from a decision that orders the state to pay refunds,'' says Steve White, the assistant attorney general who's been handling the state's case for a decade.

Also years away is any significant payday for Domke, who says he has received just a few hundred dollars for his years of effort. As the winner in the civil case, the state will pay his fees.

How much time has he spent on this?

''It's been a very time-consuming case over the 19 years, very time-consuming,'' he says. ''I've spent thousands and thousands of hours on this. My wife claims most of them fall around Christmas Day or Thanksgiving.

''There are certain times when you wonder if you're chasing windmills.''

Like Cervantes' Don Quixote, though, he perseveres. Even so he concedes that ''none of the refunds would warrant the litigation this case has been through.''

Still, he's in for the duration, and might even ask the U.S. Supreme Court to decide whether the state should be charging even an extra nickel to nonresidents.

''It's an interesting case. And the court has made some law,'' Domke says. ''Ultimately the class members will be better off and there will be a reduction of the differential, or an outright elimination of it.''

The state recently changed the law to align with the court decision so far. The law now says the state can charge nonresidents the resident fee ''plus an amount, established by the department by regulation, that is as close as is practicable to the maximum allowed by law.''

Last year, the first under the new structure, the state charged a fee differential of $120 for nonresidents above the resident fees of $60 to $300, said Kurt Schelle of the Commercial Fisheries Entry Commission.

Ironically, Domke says, the nation's highest court considered a similar Alaska case way back in 1952. At that time, nonresidents were being charged ten times what territorial residents paid.

The high court decided that wasn't right, and Domke says nonresidents were charged the same amount as Alaskans until well after statehood.

''It don't think (the differential) came back until limited entry,'' the system that allows only permit-holders to participate in a given fishery, Domke said.

The two clauses of the U.S. Constitution that relate to the issue involve commerce, not other pursuits. So they don't apply to standard hunting and fishing licenses.

The case is Carlson vs. the State of Alaska.

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