State loses in halibut decision

Posted: Monday, July 07, 2003

HOMER A state appellate court has upheld a Homer judge's ruling that the state has no authority to require state-issued permits in the federally regulated commercial halibut fishery.

The decision, handed down late last month, is the final act in a long play that began when a Homer-based Alaska State Trooper seized the catch of three commercial halibut fishers in 2001.

The state Commercial Fisheries Entry Commission regulates participation in Alaska's commercial fisheries by determining whether the number of participants in a given fishery should be limited. Under state law, the CFEC can issue two types of permits to govern participation in state-run fisheries.

One, the limited entry permit, allows participation in a limited entry fishery. The second, an interim-use permit, is assigned to fishers participating in a fishery that might later be subject to limited entry.

A third CFEC permit, called a landing permits, was created to give the state control over fishers who participate in federally regulated fisheries but land their catch in Alaska. Landing permits have never been used, and the CFEC instead used interim-use permits for the same purpose, as in the federally controlled commercial halibut fishery.

In 2001, John Dupier, Rodman Miller and Philip Twohy landed their catches of halibut in Homer. Though all three men were IFQ holders, none was in possession of an interim-use permit.

Trooper Todd VanLiere, with the Division of Fish and Wildlife Protection, seized their catches of halibut, plus allowable bycatch and Twohy's catch of sablefish allowed under his sablefish IFQ.

The total was worth in excess of $60,000, said Mike Hough, the attorney for Dupier and Twohy. Hough said that generally, fishers caught without an interim-use permit were fined between $100 and $300.

"Nobody was going to fight it for that much money," he said. "But for $60,000, it becomes worth fighting about."

The men protested the seizure, and Homer District Court Judge M. Francis Neville ruled in their favor. Not having a permit was a noncriminal offense, she said, and therefore was subject to a fine but not to seizure.

"Instead of returning the money," Hough said, "the state changed the crime it charged them with to a misdemeanor, which was subject to seizure." In other words, he said, the state changed the crime to fit the punishment.

Neville again ruled against the state, Hough said, and the money was returned.

Neville also ruled that the state had no right to require permits in a federally controlled fishery. Late last month, the state appellate court agreed.

"The state is only authorized to issue interim-use permits to fishers participating in fisheries that are subject to limited entry by the CFEC," the court said in its decision, adding that the state had "exceeded its authority."

"We conclude that the CFEC only has discretion to issue interim-use permits to fishers operating in fisheries over which the CFEC has authority to limit entry," the court said.

Under state law, fishers without interim-use or limited entry permits are required to obtain a landing permit in order to land fish in an Alaska port, the court said. But because the Alaska Department of Fish and Game has never issued landing permits or authorized CFEC to do so, fishers can not be prosecuted for failing to obtain them.

In its appeal, the state claimed the men were still subject to prosecution for not having interim use permits.

The appellate court disagreed, and said state law "does not require fishers to have interim use or entry permits; rather, it directs fishers without interim use or entry permits to obtain landing permits."

Assistant State Attorney General Jon Goltz said he thinks the court's ruling was based on a "real close reading of the statute."

Goltz said the state agencies involved in the case have not yet met to determine how to address the court ruling.

"We're not sure how we're going to proceed yet," he said. The state still can decide to appeal, he said.

Goltz would not speculate whether the court's decision would affect fishers fined in the past for not having an interim-use permit.

"I don't know about that, I haven't even followed that line of thought yet," he said. "That's an issue I haven't researched."

Following the appellate court's decision, Hough praised Neville's initial action in the case.

"She stuck her neck out to tell the state agency it had no right to do what it did," he said. "She did a good job."

For her part, Neville would not comment on the court's decision.

Chris Bernard is th emanaging editor of the Homer News.

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