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Thread: Argument at the Supreme Court

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    Default Argument at the Supreme Court

    Here is the Dispatch: http://www.adn.com/article/20150826/...-setnet-debate

    Here is the Journal of Commerce: http://www.alaskajournal.com/Alaska-...ban-arguments/

    Did not see anything in the Fairbanks News Miner or Juneau Empire. Your results may differ.

    Decision is likely around the end of the year.

    Any on-site witness comments or reports?

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    http://www.360north.org/gavel-archiv...647_2015081001


    link to oral debate.. Some of the judges appeared very skeptical that this is not allocative. We will see but I am betting they do not allow this to go forward and Bob is out 100k.

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    Itís an interesting legal question. What constitutes an allocation? It is the strict definition (recreational, commercial, subsistence, PU), or does it mean a shifting of priorities within the definition? Clearly if a single user group (i.e., commercial) is denied fish, thatís an allocation. That is, their new allocation is now zero. I donít think anyone would argue that action is not an allocation. But if the shift is within a user group (set netters to drift netters) does that constitute an allocation? Thatís not so clear.

    In my view, the ballot measure is a ďbackdoor allocationĒ. By eliminating set nets, the escapement of Chinook would go up (duh). Since these Chinook are targeted by recreational anglers, there would be more available for in-river harvest. If more Chinook are available, it will be easier to hit the existing allocation target. But for the set nets, hitting the existing allocation for the recreational harvest of Chinook might be difficult, because there are fewer Chinook. Without the set nets, harvesting 100% of the existing allocation just got easier. That benefit constitutes an allocation, albeit a backdoor allocation. Whether this fits within the legal definition of an allocation under Alaska law is the question the Court has been asked to decide. The answer may depend on the practical application of the law, rather than on clear legislative intent or applicable case law.

    If thatís the case, Bob is going to be crying in his beerÖÖ

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    Quote Originally Posted by Cohoangler View Post
    Itís an interesting legal question. What constitutes an allocation? It is the strict definition (recreational, commercial, subsistence, PU), or does it mean a shifting of priorities within the definition? Clearly if a single user group (i.e., commercial) is denied fish, thatís an allocation. That is, their new allocation is now zero. I donít think anyone would argue that action is not an allocation. But if the shift is within a user group (set netters to drift netters) does that constitute an allocation? Thatís not so clear.

    In my view, the ballot measure is a ďbackdoor allocationĒ. By eliminating set nets, the escapement of Chinook would go up (duh). Since these Chinook are targeted by recreational anglers, there would be more available for in-river harvest. If more Chinook are available, it will be easier to hit the existing allocation target. But for the set nets, hitting the existing allocation for the recreational harvest of Chinook might be difficult, because there are fewer Chinook. Without the set nets, harvesting 100% of the existing allocation just got easier. That benefit constitutes an allocation, albeit a backdoor allocation. Whether this fits within the legal definition of an allocation under Alaska law is the question the Court has been asked to decide. The answer may depend on the practical application of the law, rather than on clear legislative intent or applicable case law.

    If thatís the case, Bob is going to be crying in his beerÖÖ
    The allocation isn't shifting to the drift fleet though. The drift fleet cannot fish in the same area as setnetters, and if they could, what would the point of the ban be. In essence, allocation is being stripped from the commercial group, because there is nothing in place to harvest those fish that setnetters harvest. This is a clear attempt at manipulating the letter of the law.
    Responsible Conservation > Political Allocation

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    I particularly like the question that was asked regarding banning several commercial gear types and keeping commercial allocation. The lawyers response was priceless
    Responsible Conservation > Political Allocation

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    Quote Originally Posted by hoose35 View Post
    The allocation isn't shifting to the drift fleet though. The drift fleet cannot fish in the same area as setnetters, and if they could, what would the point of the ban be. In essence, allocation is being stripped from the commercial group, because there is nothing in place to harvest those fish that setnetters harvest. This is a clear attempt at manipulating the letter of the law.
    I agree. From a legal/policy viewpoint, the fish that were allocated to the set netters could be reallocated to the drift fleet. So, on paper, the commercial allocation would not change. But from a practical standpoint, that might not be feasible for the reasons you've outlined. If the drift fleet cannot capture the additional fish, it would be a significant loss the commercial sector. In essence, it's a reallocation. So the issue may turn on the practical application of the law, as you suggest.

    Two additional observations. If the recreational harvest routinely hits their allocation limit of Chinook, even with the set netters operating, then it makes no difference. So, eliminating set nets would be of no benefit to the recreational fisheries, and no reallocation would occur. This supports the argument that eliminating the set nets does not constitute a reallocation, but calls into question why it's being done.

    Secondly, if the drift fleet can scoop up the sockeye that the set netters were previously allocated, then the court could determine that, again, there is no allocation involved since the commercial sector is unaffected. But both scenarios depend on the practical application of fishery to determine the application of the law.

    BTW - I'm pontificating about legal points in the abstract. I realize the outcome of these legal arguments have direct economic consequences for some folks who frequent this BB. I don't mean to express my uninformed opinions without recognizing the potential dire economic outcomes for the people on the KP, and other places in the Great Land.

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    Cohoangler, the recreational fishery doesn't actually have "allocation limits". The fishery is managed to goals, which in turn dictates what the allocation ends up being. The Early Run is a prime example of the recreational fishery getting all the allocation. The set nets don't even fish. Look what they did to it. Also, you can't really lump set netters and drifters into the same commercial allocation basket. Although they are both "commercial" fisheries per say, they are two completely different fisheries when it comes to gear type/methods/permits (banning gear type is what this ban is about). An allocation shift to the drifters is still an allocation shift. See, the elimination of any user group causes an allocation shift, and the elimination of any user will certainly cause an affect on in-river allocation. It has to. That's why this ban is all about allocation - obviously.

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    Not sure I agree. The ballot initiative makes no re-allocation to either the drifters or the in-river recreational fishery or anyone else. Thatís their point. The allocation to other users remains the same even if one gear type is gone. And elimination of one gear type does not mean another gear type gets those "extra" fish. In the absence of a new decision by BoF, it means those extra fish are available to other gear types, which makes it easier for other user groups to achieve their already established allocation (regardless of how that allocation is determined or expressed). The actual number of fish that can be taken by any user group does not change, unless of course, BoF changes it. The only thing that changes is the ease by which another user group can catch its allotted number of fish, because there are more of them. To me, thatís the backdoor allocation.

    Does that rise to the level of a re-allocation, which is not permitted by Alaska law? Thatís the question before the court. Itís a fair question.

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    Quote Originally Posted by Cohoangler View Post
    Not sure I agree. The ballot initiative makes no re-allocation to either the drifters or the in-river recreational fishery or anyone else. Thatís their point. The allocation to other users remains the same even if one gear type is gone. And elimination of one gear type does not mean another gear type gets those "extra" fish. In the absence of a new decision by BoF, it means those extra fish are available to other gear types, which makes it easier for other user groups to achieve their already established allocation (regardless of how that allocation is determined or expressed). The actual number of fish that can be taken by any user group does not change, unless of course, BoF changes it. The only thing that changes is the ease by which another user group can catch its allotted number of fish, because there are more of them. To me, thatís the backdoor allocation.

    Does that rise to the level of a re-allocation, which is not permitted by Alaska law? Thatís the question before the court. Itís a fair question.
    It absolutely rises to that level. It's a known fact that the purpose of the initiative is to get more fish in the river, and krsa even says it's about conservation (more fish in river).
    Responsible Conservation > Political Allocation

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    Quote Originally Posted by hoose35 View Post
    It absolutely rises to that level. It's a known fact that the purpose of the initiative is to get more fish in the river, and krsa even says it's about conservation (more fish in river).
    The argument that this is not allocative because it only shifts harvest within the commercial fish user group flys in the face of the conservation claim. If this initiative is about conservation as AFCA claims, then it does absolutely no good to shift the harvest of King salmon from setnets to driftnets. If the argument is that the allocation would not shift, and more Kings would make it to the river, it is a de facto allocation to inriver users. I don't see any way around it...

    Don't forget that ballot initiatives are also prohibited from exercising local and special legislation. Regardless of the careful wording of this initiative, the result will be that for all practical purposes, setnets will be legal to use statewide - except for one group of commercial setnetters in Cook Inlet. Even if the current initiative is deemed to be allocative, what would stop Bob from buying an initiative to prohibit the use of outboard motors for commercial purposes in urban areas of the state? Or prohibit the use of boats for commercial purposes within one Mile of the cook inlet shoreline - to save the birds... or for that matter prohibiting people from red hair from using a public bathroom?

    I don't understand why the state did not make the local/special legislation issue part of their argument. To me this initiative is both, in addition to being allocative.

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    Quote Originally Posted by Cohoangler View Post
    Not sure I agree. The ballot initiative makes no re-allocation to either the drifters or the in-river recreational fishery or anyone else. Thatís their point. The allocation to other users remains the same even if one gear type is gone. And elimination of one gear type does not mean another gear type gets those "extra" fish. In the absence of a new decision by BoF, it means those extra fish are available to other gear types, which makes it easier for other user groups to achieve their already established allocation (regardless of how that allocation is determined or expressed). The actual number of fish that can be taken by any user group does not change, unless of course, BoF changes it. The only thing that changes is the ease by which another user group can catch its allotted number of fish, because there are more of them. To me, thatís the backdoor allocation.

    Does that rise to the level of a re-allocation, which is not permitted by Alaska law? Thatís the question before the court. Itís a fair question.
    I'm not sure I understand you. There's no such thing as an "allotted number of fish" to any user group in this fishery. Allocations are not hard or set by the BOF, but instead dependent on meeting goals per the management plan, however many fish that ends up being for any particular user group.

    The ballot initiative re-allocates fish, de facto. In other words, since the Kenai Kings are already fully allocated among all user groups, if one user group is eliminated (set netters) the other group (in this case the in-river guided and non-guided sport fishermen) will be able to harvest the eliminated group's fish. Kind of like attrition. We saw it with the Early Run several decades ago when the set net fishery was eliminated for the sake of the in-river sport fishery - a fishery that then proceeded to harvest those fish to a point of a decimation. Proof in itself that banning set nets for conservation doesn't work.

    In my opinion, the initiative shoots itself in the foot by saying it's not allocative. Think about it...any multi-user group fishery that has established escapement goals, management plans, fishery policy, and a BOF process, all in order to meet constitutional mandates, must by its own nature be allocative.

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    Quote Originally Posted by Funstastic View Post
    In my opinion, the initiative shoots itself in the foot by saying it's not allocative. Think about it...any multi-user group fishery that has established escapement goals, management plans, fishery policy, and a BOF process, all in order to meet constitutional mandates, must by its own nature be allocative.
    Right. Unfortunately, the Lt. Gov informed setnetters that there is no requirement that truth or facts be part of a ballot initiative, so AFCA's argument need not be consistent. If they can buy the signatures, anything goes. They could ban Unicorns from eating four leaf clovers in order to save the Leprechuans.

    Only in urban areas, of course. And only commie Unicorns

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    Quote Originally Posted by Funstastic View Post
    I'm not sure I understand you. There's no such thing as an "allotted number of fish" to any user group in this fishery. Allocations are not hard or set by the BOF, but instead dependent on meeting goals per the management plan, however many fish that ends up being for any particular user group.

    The ballot initiative re-allocates fish, de facto. In other words, since the Kenai Kings are already fully allocated among all user groups, if one user group is eliminated (set netters) the other group (in this case the in-river guided and non-guided sport fishermen) will be able to harvest the eliminated group's fish. Kind of like attrition. We saw it with the Early Run several decades ago when the set net fishery was eliminated for the sake of the in-river sport fishery - a fishery that then proceeded to harvest those fish to a point of a decimation. Proof in itself that banning set nets for conservation doesn't work.

    In my opinion, the initiative shoots itself in the foot by saying it's not allocative. Think about it...any multi-user group fishery that has established escapement goals, management plans, fishery policy, and a BOF process, all in order to meet constitutional mandates, must by its own nature be allocative.
    Weíre talking past each other.

    Perhaps a simplified example would help. But just as a reminder, I have no stake in the outcome of this ballot initiative. Iím not an Alaska resident, so I wonít be voting on it. But if I was, I would not vote for it, primarily because ďballot box biologyĒ is not how resource management should be done. Just my personal view.

    Having said thatÖÖ

    If User Group A is allocated 100 fish, they can catch 100 fish. If User Group B is allocated 50 fish, they can catch 50 fish. However, if User Group B is eliminated, User Group A is NOT allowed to catch 150 fish. There would be 50 additional fish available for harvest, obviously, but that does not mean another user group gets to catch them without specific authorization to do so. BoF would have to make that decision. As I understand it, thatís the ballot initiative supporters position (not mine).

    My point is that if there are 150 fish available for harvest, User Group A will find it considerably easier to reach their 100 fish allocation. That benefit is a form of allocation. I termed it a backdoor allocation. As I see it, the court has to determine whether this form of re-allocation is allowed by Alaska law. Or not.

    I realize that allocation is not always defined by specific numbers of fish. However, at some point, ADF&G has to count numbers of fish. When the number of fish caught reaches a pre-determined level, fishing stops. Thatís the allocation. It always comes down to numbers of individual fish caught, encountered, escape to the spawning grounds, or harvested.

    My other point is that the court will likely fall back on the practical application of the law to reach a decision in this case, which is why this discussion is pertinent to the decision.


    I'm tempted to ask where Nerka is on this issue, but he's probably out fishing. Which is where most of us should be.......

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    Coho, it would seem that your argument gives weight to the opinion that the BOF should be the body determining whether setnets in UCI should be used or not, and when.

    I've said it before and I'll say it again: I don't think there is any way the AK supreme court can allow this initiative to move fwd when you view it solely based on the precedent it would set.

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    I hate to beat a horse...but I must be missing something? Coho, your example can't (and doesn't) exist under our current fishery laws/plans/policy. The entire fishery is managed to goals, not harvest numbers, catch limits, or pre-determined levels. Unless you are suggesting all our current statutes (and basically constitution) would have to change.

    When group B is eliminated, group A will be able to catch as many fish as they can, as long as escapements are met. Allocation shifts to group A. A simple example would be: 50,000 Kings available. Group A catches 15,000. Group B catches 15,000. 20,000 escape, thus meeting goals. But then group B is eliminated. Group A can now catch 30,000. 20,000 escape, thus meeting goals. See, group A has an open-ended allocation, as long as escapement goals are met. And they will be able to catch Group B's fish.

    Anyway, smithtb made a great point about local issues being on a state ballot. If it ever goes to vote, a guy from Barrow (Arctic Region) will be voting on a Cook Inlet Region issue - an issue normally handled by the BOF under state law. So here in the Cook Inlet Region do we now begin voting state-wide on issues affecting the Arctic Region, which the BOF would normally handle under state law? So much for Statutes requiring Regional Advisory Committees - they are undermined by statewide public voting. In fact so much for virtually any biological management plan pertinent to the particular area - it can be overridden by a state-wide public vote. Just crazy.

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    Quote Originally Posted by bushrat View Post
    Coho, it would seem that your argument gives weight to the opinion that the BOF should be the body determining whether setnets in UCI should be used or not, and when.
    Good point...by Statute we already have a process for removing gear type and set nets from the fishery. In fact, decades ago the BOF did just that when they removed these same set nets from the Early Run. Penney's group just wants to make the calls rather than the BOF. That way his group gets all the fish.

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    Quote Originally Posted by bushrat View Post
    Coho, it would seem that your argument gives weight to the opinion that the BOF should be the body determining whether setnets in UCI should be used or not, and when.

    I've said it before and I'll say it again: I don't think there is any way the AK supreme court can allow this initiative to move fwd when you view it solely based on the precedent it would set.
    Yes. Absolutely yes. In many States, the F/W Commission is the entity charged with developing fish and wildlife policy. Alaska is no different. And this case is no different than other States where an interest group has developed a ballot initiative that would override a F/W Commission decision, and undermined their authority. The question being posed is whether doing that is within the confines of Alaska State law. The precedent it would set would greatly undermine the current system established by the legislature (BoF/BoG). But in some respects that is exactly their point. As such, I fully understand the many levels of concern this ballot initiative is raising, even if it fails at the ballot box.

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    Happy New Years from the Supreme Court. Setnet ban unconstitutional.


    http://www.courtrecords.alaska.gov/w...ps/sp-7073.pdf

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    Quote Originally Posted by smithtb View Post
    Happy New Years from the Supreme Court. Setnet ban unconstitutional.


    http://www.courtrecords.alaska.gov/w...ps/sp-7073.pdf
    Congratulations to the ESSN fishers, the processors and others who benefit from the decision.

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    You mean to say All Alaskans. Since we're (Alaskans) not going to manage natural resources through ballot initiatives that are based on the best propaganda money can buy.

    Can't buy the court, can't buy the Gov this term. Watch the Penney windfall headed to those sympathetic legislators. Gotta hold the one branch they've still got. Not to worry Q, you're still golden.

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