Commissioner, not board, to regulate emergency orders

Posted: Tuesday, July 22, 2003

A judge's ruling last month altered a Board of Fish mandate limiting additional fishing time for commercial fishers in the Kasilof setnet sockeye salmon fishery.

The original board regulation required the commissioner of the Alaska Department of Fish and Game to allow only 36 hours of emergency order fishing time near the Kasilof River. Similar restrictions are set for other commercial setnet and driftnet fisheries on the east side of Cook Inlet.

But in a suit brought against Fish and Game and acting commissioner Kevin Duffy, Judge Harold Brown included the board as a defendant in his ruling that the board should not limit the commissioner's power to issue emergency orders to particular times and places of the board's choosing.

"The board cannot place limits on the Legislature's delegation of authority to the commissioner," Brown's decision said, referring to state statues outlying the board's authority.

The suit was filed by the United Cook Inlet Drifters Association and Kenai Peninsula Fishermen's Association in June 2002. In addition to asking for relaxed limitations on emergency openings, the groups asked the court to invalidate the optimal escapement goal adopted by the board.

Brown ruled against this request, however.

State Attorney General Greg Renkes said the decision clearly upheld the board's regulations, but gave the commissioner and his delegates the power to make spot decisions on a fishery based upon prospective changes.

"The judge didn't see fit to set aside the Kasilof River Management Plan," Renkes said. "But the commissioner has the discretion to issue an emergency order that is outside the plan based on new information."

The original decision was returned May 28, but the state asked for a reconsideration, which returned the same verdict earlier this month.

Roland Maw, UCIDA president and a commercial driftnetter, said the decision would return fisheries regulation to Fish and Game's area biologists and would be beneficial for everyone fishing.

"The court case really wasn't about catching fish," he said. "It's about who's managing fisheries. Is it a biologist or some Board of Fish member?"

Blaine Gilman, attorney for UCIDA and KPFA, implied that previous commissioners used the board's limitations as an excuse not to manage the fisheries when surplus reds were running.

"The fishermen are going to be screaming, 'Open up the fishery,' and the commissioner is not going to be able to say, 'no, my hands are tied because of the Board of Fish,'" Gilman said.

He said the court case challenged promises Gov. Frank Murkowski made to the commercial fishing industry during his campaign last year.

"The governor ran on issues of commercial fishing, and that we're going to use the maximum sustained yield and let the biologists manage the fishery," Gilman said. "We'll see what will happen from here, and if the commissioner is going to exercise his authority."

Deputy Fish and Game Commissioner David Bedford said biologists would continue to follow the same restrictions the board set in place until the department received direction from Renkes' office as to just what the ruling will mean for management.

Ed Dersham, Board of Fish chair, said the ruling would change nothing.

"I don't see anything different than what already exists as far as the department's authority," he said. "I think we have a circumstance that may be cause for the department to issue emergency orders that go outside of the plan, but that has always been a part of the plan."

Maw said the preservation of a sustained yield of red salmon was the primary reason for the suit and said it was in no way meant to set commercial fishers against any other Cook Inlet-area anglers.

"It wasn't us versus the guides and it wasn't us versus the dipnetters," he said. "It was all of us saying, 'we'd much prefer it would be Mark (Gamblin) and Jeff (Fox) managing the fisheries. We can all see the benefit of that."

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