Alaska Supreme Court has ruled on board, commissioner powers

Posted: Tuesday, July 20, 2004

I read the Clarion story on July 11 regarding local commercial fishers claiming that they have been "again" wronged by Alaska Board of Fish regulations. The commercial claim appears to be that the Alaska Board of Fish cannot interpret regulations to somehow restrict the Fish and Game commissioner's use of emergency orders to manage state fisheries.

This, of course, is an incorrect conclusion if the fisheries issue has been fully considered by the Board of Fish. Believe it or not, this issue has been heard and re-heard within our courts. There are only two real choices here: Either these commercial fishers have money to burn on lawsuits or they cannot read the current ruling from our Alaska Supreme Court.

Peninsula Marketing Association v. Rosier, Feb. 24, 1995, tells us who has the power regarding emergency fishing orders, EO. This case states that if the EO regards issues presented to the Board of Fish, the commissioner has zero ability to move against the board's will. This case also states that if it is truly a fisheries emergency situation, the commissioner has the ability to move against or beyond the board's will. This case shows that the commissioner has a great deal of power to address unexpected fisheries situations, while at the same time having very little power to address expected fisheries situations.

Most of what happens within Cook Inlet fisheries are expected situations. The real issue here is that the commercial fishing industry desires to mix-up the words "expected" and "unexpected." This industry believes that if expected fisheries escapements can be manipulated into being viewed as being unexpected, then gillnetters can be legally allowed to make a large cash windfall by wiping them out.

There is really nothing new here. Ten years ago, the Alaska Supreme Court ruled on this very issue and now our commercial gillnetters dredge the issue up again just to see if they can get an injunction or two in before the courts tell them the same thing they told them last time.

Our courts have clearly stated that when you expect the same emergency year after year, it is no longer a true emergency. When an issue is no longer a true emergency, it then drops out of the commissioner's emergency powers authority and falls under the authority of the Alaska Board of Fish. The commercial fishing industry may get all the injunctions they want; it will not change the legal fact that this Cook Inlet fisheries management issue was fully considered and ruled on by our Alaska Board of Fish. It is very clear that the commissioner may not implement his own fisheries management agenda on this issue by utilizing his emergency powers.

"We affirm the Superior Court's decision and hold that he commissioner may not use his emergency powers to implement a fisheries management program already considered and rejected by the Alaska Board of Fisheries, in the absence of newly developed information or events occurring after the board's decision." Supreme Court of the State of Alaska, Peninsula Marketing Association v. Rosier (2/24/95).

Don Johnson


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