State officials say judge's decision confirms current Fish and Game practices

Posted: Sunday, July 11, 2004

A Kenai Superior Court judge issued a temporary restraining order Friday saying the Alaska Board of Fisheries may not interpret regulations in such a way that they restrict the power of the commissioner of the Department of Fish and Game to open Cook Inlet commercial salmon fisheries by emergency order.

Emergency orders are typically employed to open fisheries to commercial drifters and setnetters when fish runs warrant.

But members of the Cook Inlet Fishermen's Fund, which won the temporary restraining order against the state of Alaska, the Department of Fish and Game, Commissioner Kevin Duffy and the Board of Fisheries, say that's not how things have been run for the past few years in Cook Inlet.

They say certain fishery management plans specifically the Kasilof River Salmon Management Plan, the North District Salmon Management Plan and the Kenai River's Late-Run Sockeye Salmon Management Plan have curbed the commissioner's emergency order authority, which has led to the costly waste of fish resources.

"That's hurt thousands of commercial fish families and taken money from the Kenai Peninsula Borough," said Joe Malatesta, chief legal assistant and investigator for Soldotna Attorney Chuck Robinson, who filed for the restraining order on behalf of the Fishermen's Fund.

Poor management practices based not on the best biological principles, but on a desire to allocate fish to sport anglers, has led to millions of fish going unharvested, he said 20 million pinks in 2000 and a similar number in 2002, and some 800,000 sockeyes in 2003.

Department of Fish and Game and Board of Fisheries officials see it differently. Board Chair Ed Dersham said the TRO merely directs the department to do what it already is doing. He also took issue with the plaintiffs' claims of waste.

Doug Mecum, director of the Division of Commercial Fisheries, agreed.

"I'm not really sure how to react," he said. "To me, it confirms our view of the law," adding that at its core, the controversy boils down to differences of opinion.

The restraining order issued by Judge Charles Huguelet essentially reaffirms a May 2003 ruling in which Superior Court Judge Harold Brown said board regulations could not place limits on the Legislature's delegation of authority to the commissioner. Further, Brown had said that those regulations could not "limit the commissioner's power to issue emergency orders to particular times and places chosen by the board."

Citing Brown, Huguelet noted that unless acting on information not before the board, as in a biological emergency, a commissioner could not exercise veto power over the board's authority and should adhere to decisions of the board.

"In other words, there is no restriction of 'the commissioner's authority to exercise his emergency powers in a true biological emergency,'" Huguelet said, again citing Brown.

"This is a step, finally, in the right direction," said Doug Blossom, a Cook Inlet fisher for about 57 years.

Fishery closures meant to allow salmon to escape upstream have not been based on science, but on allotment principles and don't work, he said.

"The Board of Fish is rotten to the core," he said.

The Board of Fish has taken biological management out of the fisheries, said Dave Martin, an inlet driftnetter. Sockeye escapement alone last year cost fishers $8 million, he said.

"This year, the same thing is happening," he said. "The Kasilof River has gotten way over its minimum escapement and it's only July."

Escapement windows have tied the hands of area biologists trying to manage the fisheries for sustained yield and led to unnecessary waste, he added.

"It shows the bias of the board that is reacting to special interests and not using biology to run the fisheries," Martin said.

Roland Maw, executive director of the United Cook Inlet Drift Association, lauded Huguelet's action.

"We are extremely pleased with this ruling," he said.

The restraining order affirms that the board has neither the regulatory authority nor the allocative authority to override the commissioner's emergency powers, he said.

"Expect doom and gloom from the department," even though the number of regulations affected is tiny, he predicted.

Mecum, the director of the Division of Commercial Fish, however, said the ruling reaffirms what's already been in practice: While the commissioner does not have veto power over the board, he can act outside of the board plans' during a biological emergency.

Statements by fishers that management plans, board decisions and emergency openings have been conducted irresponsibly, or are politically motivated, or that they have led to unnecessarily large escapement and waste are simply wrong, he said.

"We have a responsibility to follow management plans the Board of Fish adopts; an ethical, professional and legal responsibility," he said. "The board spends weeks and weeks in public meetings developing management plans and regulations and for us to ignore those would be illegal."

When unexpected situations develop, the department must act, and there are provisions for that. State law allows the commissioner to issue emergency orders when warranted, he said.

"On occasion, we take action that is not strictly consistent with board plans, but they are rare," he said.

Board of Fish chair Dersham agreed.

"The TRO directs the department to do what it is already doing," he said. "The new suit is based on the plaintiffs having a different opinion of what the Brown decision meant. In the short run, nothing changes, because it is exactly the advice the attorney general gave the department."

As for claims that the board is making decisions based on politics as opposed to science, Dersham said emphatically, "Not true! I think this board has demonstrated over the last cycle that it does not make decisions for political reasons."

Claims that some 800,000 sockeyes were wasted last year are wrong as well, he added.

"They (plaintiffs) were counting every fish above the minimum escapement goal on every part of the system (rivers and streams). The department shoots for a range," Dersham said.

Those ranges, he added, are just that, and their maximums don't represent too many fish, but the best estimates at that time of what is needed. It's not an easy task.

"Its not a matter of being political, it's a matter of being complicated," Dersham said. "I can guarantee the department is on the ball and looking at the situation every day."

The department has specific criteria for defining when a biological emergency warrants an opening. Emergency orders are needed to deal with situations as they arise, and things can change day by day. When the Board of Fish meets in the winter, that's when management plans get rewritten and fixes, as necessary, are put in place, he said.

Malatesta agreed the issues are complicated, but he asserted that the commissioner had "hid behind the fact" that he could not act in the face of the regulations.

"It cost the borough millions in tax revenues. It cost commercial fishers in lost income," he said. "Their move is political and designed to bankrupt commercial fishermen."

Malatesta warned that the Fishermen's Fund would seek a permanent injunction against the state, and that getting the temporary restraining order was a mere prelude to lawsuits to come that would seek compensation for the lost income suffered by fishers as a result of board decisions.

"We will bring the state into the court system to stop the allocative nature of taking fish away and wasting them as they did," he said.

"We must allow commercial fishermen the right to use their limited entry permits to harvest excess fish in the commercial fishing season."

"The upshot of all this is that the commissioner, under a biological emergency, is within his authority to do it (issue emergency orders)," said Attorney Chuck Robinson. "This separations of powers issue is going to be resolved in favor of the commissioner."

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