Allocation within an Alaska State Fishery - HB0188A

March 23, 2007

By Stephen Taufen - At Kodiak ComFish last week, during the seminar on state and federal fisheries, House Bill 0188A (an Amendment to existing statute) concerning the allocation "within" fisheries by the Board of Fish was briefly discussed after an audience comment. Alaska Department of Fish and Game Commissioner Denby Lloyd stated that he was aware that the department asked the Legislature to consider the amendment based on prior communications with the Department of Law.

As an aside, readers should credit Mori Jones with alerting Groundswell earlier in the week about the bill and expressing concerns of the Chignik independent fishermen (Grunert cases) and of their attorney about the new language. Ludger Dochtermann of Kodiak then called Representative Wilson, and she became equally concerned that maybe the language change had deeper implications.

In addition, AIFMA was alerted, and they provided insight into the complex nature of such a language change, and wisely cautioned about interpreting the effects of the change without thorough legal analysis. They noted that the ADF&G had many ongoing programs this might affect, as it had 'allocated fisheries' for many years. Next, I advised UFA's Mark Vinsel about the bill at ComFish, the day before the state seminar, and he stated that since it was introduced after their recent board of directors meeting, UFA needed to look into it, as well.

Representative Gabrielle LeDoux soon entered the ComFish seminar room and was able to provide a copy to the Commissioner of the bill, when the issue was revisited. And Lloyd was genuinely surprised to learn from Groundswell that the bill, introduced on Monday, March 12, 2007 by Representative Peggy Wilson (R-Wrangell) contained a date certain for retroactive implementation: March 17, 2005.

Obviously, this called into question whether or not the amendment bill, "An Act relating to the authority of the Board of Fisheries to allocate within fisheries; and providing for an effective date" was a means to overturn some aspect of the State Supreme Court rulings in the Chignik Cooperative cases (Grunert v. State, and State v. Grunert) rather than simply clarify existing BOF allocation powers relative to all programs in place.

Groundswell asked Commissioner Lloyd to please look into the matter, and to provide the public with a copy of any Department of Law memorandum concerning the need for HB0188A. We expressed that the memo might specifically address their meaning of 'within' and the need for a date in 2005, rather than a date much further back that would cover years of BOF allocation decisions. Surely the Grunert decision alone was the tipping point, and March 17, 2005 an important date.

Of course, the ADF&G would have to determine whether or not there was a state nondisclosure privilege in place before making the memo transparent. However, through other sources, Groundswell is able to bring you the attached 8-pages that contain not only a March 16 reply to Commissioner Lloyd, but a memorandum of the same date from Legislative Affairs' Legal Services to Representative Wilson.

The file also contains a copy of the Sponsor Statement for the bill, and a second Legal Services memorandum to Representative Wilson dated March 20. We have not yet obtained any earlier communications from the Department of Law to either ADF&G or Representative Wilson, and expect that Commissioner Lloyd still has his department researching whether or not any such documents can be released.

There are complex legal issues and serious implications for existing fisheries and future proposals are inherent in the Amendment bill. So, we will leave that to respective fishing interests to explore with the Legislature and attorneys.

But it is interesting to note that the March 20 memorandum from Legislative Counsel Brian J. Kane to Peggy Wilson notes, regarding the Grunert cases, "the court still made the statement that allocating within a fishery was not covered by existing AS 16.05.251(e). Hence, it is necessary to add the phrase 'and within' if you intend for the board to, without a doubt, have the power to allocate within a single fishery."

That, along with the attached file and a look at Representative Wilson's website should get you started on learning about the proposed language change and retroactive effective date, to decipher what this means to your state fishery. And to finally take a look at the BOF allocation powers, who is politically appointed to it, and whether or not you want them to have certain powers under the current situation. After all, the memory of SB0113 for GOA groundfish allocations is fresh in our minds, and the state components in parallel fisheries have implications on the federal regulation, too.

Representative LeDoux asked that Mr. Robinson, the Grunert case attorney, be put in contact with her in order to explore the bill's implications further. We heard today that Bristol Bay villages and Cordova associations are already active on the issue, as well. We leave this in their and your good hands. Best fishing!

By Stephen Taufen, Groundswell Fisheries Movement