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Constitution, logic prohibit creating special class of anglers

Posted: Wednesday, June 02, 2004

I would like to address the local vs. non-local or guided vs. non-guided issue. Some of our public committees are at this time attempting to address this important issue, so I have painted a watercolor painting regarding the issue. It is located at http://www.alaskadons.com/images/busnonresident2.gif.

Anyone who believes they can reverse Alaska constitutional public trust doctrine just because they don't like rubbing elbows with other residents is in plain error. In Alaska, people who believe that they have the right to place themselves within a "privileged fisheries class" and remove all others will soon be confronted by someone else who will claim the same and thus remove them from that privileged class.

The only way around this Alaska constitutional fact is a vote of the people of Alaska. The Alaska Constitution has written into stone that similarly situated common users shall be treated equally. The creation of a privileged class within Alaska's common use fisheries is not constitutional.

This is why it took a constitutional amendment to create Alaska's commercial fishing

limited entry program.

As the law now stands in Alaska, charter vessel operators acting as guides for sport fishers are involved in the sport taking of fish, not in the commercial taking of fish. Therefore, the provisions of AS 16.43.140 in specific, and the Limited Entry Act in general, are not implicated. (Alaska Supreme Court Opinion Rutter v. Alaska Board of Fisheries, Aug. 7, 1998)

Local vs. nonlocal privilege also is illogical. Would you desire to be legally prevented from riding a bus on a Tuesday in Washington just because you were not a local resident? Would you put up with not being able to even buy a burger on Mondays in Texas just because you were nonlocal?

I know of no locals who will answer yes to any of these type of discriminatory questions, but those same locals will hypocritically demand that nonlocals endure this kind of treatment when they visit the Kenai Peninsula.

If you believe that other states should not mistreat nonlocals like this, why would you believe Alaska should be able to tell non-locals that they cannot fish on Mondays or after 6 p.m.? If you, as a nonlocal person, would not desire to have your access to goods and services removed, why would you attempt to remove nonlocal access to Alaska's fisheries?

Logic demands that if you wish to create a privileged class of locals here in Alaska then other states should be allowed to do the same. Logic then asks if this the kind of future nation you want your children to live in? Do you really desire a nation which divides locals from nonlocals, thus forming a caste-like society much like the one currently being used among the Hindus?

Jim Crow laws were hypocritical as they attempted to discriminate for skin color. Local vs. nonlocal laws also are hypocritical as they attempt to discriminate for residency.

Most people can no more change the place they live than they can change the color of their skin. Currently genetics are about as uncontrollable as economics, so how can you logically discriminate for economics and not genetics? Hypocrite is spelled the same for both issues.

Attacking our Alaska constitutional public trust doctrine with unconstitutional and discriminatory changes like common user moratoriums or other discriminatory actions will only make perceived elbow rubbing problems even worse than they currently are.

These type of illegal actions only serve to make things worse by compelling persons who were only thinking about getting into these fisheries to take action and jump in for fear of permanently losing their access.

There are no legal shortcuts on this issue. If you desire exclusive fisheries access for an Alaska common user, you must legally go through the Alaska Constitution to arrive at a final solution. All exclusive changes for common users which fall short of a constitutional amendment will eventually fail; it is just a matter of the time and the legal costs involved.

A constitutional amendment would take much effort to construct and implement; therefore, I suggest the practical alternative of increasing the price to access fisheries in high demand. This would be a natural and constitutional force which would work.

Don Johnson

Soldotna



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