Bfish posted that the Brown decision was a split judgement and implied (not out of malice) that the question was still open. I said I would look up the decision and post it. I thought a new thread would be better at this point.
The decision on case 3KN-02-524 CI was signed by Harold M. Brown on 28 May 2003. Here are some quotes from that decision.
Here, the issue is whether the Board's regualtion should be read as further limiting the power of the Commissioner to issue Emergency Orders to particular times and places of the Board's choosing. The court holds that is should not. Although the Board of Fisheries is granted wide ranging power to regulate the fishery under AS 16.05.251, the Board cannot place limits on the Legislature's delegation of authority to the Commissioner...... the court can say that to the extent that 5AAC 21.360 can be read to prohibit the commissioner from entering an Emergency Order affecting the time limits set ut in the regulation no matter the circumstances , it is invalid..
Summary judgement is therefore granted ... in favor of the Plaintiffs regarding the effect of the Board's regulation on the Commissioner's Emergency Order authority.
The court did grant the state summary judgement on a second part of the case regarding the issue of a need for a yeild analysis on the Kasilof River sockeye OEG.
Therefore, there was a split decision. The State won on the Kasilof yeild analysis and the fisherman won on the emergency order authority issue.
Further. Brown in a denial of a request of a temporary restraining order noted case law and wrote " the Board cannot place limits on the legislature's delegation of authority to the Commissioner. In other words, the language in the regulations purporting to limit the Commissioner's EO authority should be ignored as unenforceable.
I hope this makes it very clear that the windows are not enforceable or legal relative to limitations on the emergency order authority of the Commissioner. Therefore, why have that language in regulation - it only confuses the public and puts ADF&G in a no win situation.