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Thread: Federal lawsuit for takeover of state management

  1. #1
    Member thewhop2000's Avatar
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    Default Federal lawsuit for takeover of state management

    Seems like a Kenai lawyer, Mr. Butler has filed a case in Federal court to have Federal management take over State management, for Salmon, All throughout the state. A cordova fisher has filed suit that his right was given to all lAlaska residents, when personal use was decided by the Fish Board, under the guise of the state constitution.
    He wants his fish and he wants the FEDS to gauranntee his fish, Residents be ****ed,
    Mr. Butler, from the Kenai, who represents commercial fishers, has threatened to close down dipnetting before. Please see the link below!!!

    http://www.peninsulaclarion.com/stor...ews_3990.shtml

    Call it what you will but I say Bullsh--t. No one is given a state resource and call it square. The residents of the state take precedence over all other users, so take your federal takeover and put it where the sun DOES NOT shine

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    Default a tough row to hoe

    Well you have to admit the commercial fisherman have their legal act in order. What you are going to need is a better lawyer and a state representative who has the kahunas to propose an amendment to the Alaska Constitution that gives allocative preference to sport and personal use fishermen in the populated and heavily used recreational and personal use fisheries in Cook Inlet. Then you are going to need a very good plan that shows how all these people can access these fish without damaging the environment. Then you will need to show how you can control overescapement with a more limited commercial fishery.Things have changed a lot since 1959 when there were not so many people who had both access and desire to participate in these fisheries. The fisheries management and allocation has not changed with the times. They have however done a good job of managing for Maximun Sustained Yield via commercial fishing. The commercial fishermen are light years ahead when it comes to defending themselves legally. Without some real leadership in this direction your access to this resource as a local will decrease, not increase. That being said, I don't think that any subsistence or personal use fishery in the state is so robust that it can support the whole state in one spot harvesting. I have a headache. Good Luck!

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    Default destroying beaches

    ___ both the Kenai and Kasilof are sandy beaches. When I dip from the beaches they change all the time, due to wind and rain even while I camp. Commercial have NO regard for future fish.Just look at last years west coast fisherman. They overharvest and now have NO fish
    Last edited by Brian M; 03-21-2009 at 00:33. Reason: negative personal remarks - see forum rules

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    Default more misinformation and persoanl attacks

    Quote Originally Posted by EBalaska View Post
    ____but both the Kenai and Kasilof are sandy beaches. When I dip from the beaches they change all the time, due to wind and rain even while I camp. Commercial have NO regard for future fish.Just look at last years west coast fisherman. They overharvest and now have NO fish

    Second, if you read the case you would know that the case does not say for the federal government to take over management of the salmon fisheries. That is not the case. What it says is the the feredal government owns the salmon resources and has the responsibility under the Mag/Stevens act (yes our Ted) to protect those resources through-out their range. The Sec. of Commerce is to review regulations passed by the state to see if they comply with federal law. The federal gov. has not done this since 1991. That is one aspect of the suit. The federal law has 10 standards that must be met and the state is obligated to meet those standards - end of story.

    One of those standards is that the state cannot create a salmon fishery for residents only. That is the bais of the personal use issue. The fishery should have been open to all United States residents and the fishery as a new fishery should have gone through a federal process - either an EIS or EA.

    A second standard is to protect fishing communities and others include using best scientific information, set MSY levels (state use of SEG's may be illegal), and there are others that you can read if you read the act.

    So do not jump to conclusions unless you do your homework. The act is complex, the legal questions are complex, and the final rulings will be done via a federal judge who will rule on the question " Is the State of Alaska and the Federal gov following the law"
    Last edited by Brian M; 03-21-2009 at 00:33. Reason: referenced deleted material

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    Default nothing personal

    Like I said, the commercial fishermen are light years ahead when it comes to doing battle in the courts. I think the outrage EB and thewhop are feeling reflects the sentiment of many. Any point of view expressed by personally attacking anyone just makes the message deliverer look not so credible. It doesn't mean that there is not a point in there somewhere. Nerka, do you think Alaskan residents should enjoy any preference in any of our fisheries? I do. I think the intent of this lawsuit is to stop all the dipnetters. I do not think it is intended to create opportunity for all United States residents. Might it have something to do with the dippers cutting into the commercial take? If that's what it is motivating this suit then I think the commercial fishermen have shown their hand in regard to how they view their fellow residents regarding the right and opportunity to harvest food. It seems to say you can eat "our" fish, as long as you buy them from us. I have never been a fan of the dip net fishery for reasons I have posted before. It's just that I am even less a fan of legal and political shenanigans to achieve an agenda.

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    Default

    Guys, much of that should come as no surprise. The State has been pathetic on so many of these issues and left the door wide-open for the Feds to come in. Had Alaska taken the bull by the horns and managed with some nads, there would be no reason for Federal intervention.

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    Member thewhop2000's Avatar
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    Thumbs up Grampy and Gotfish.... Right on.

    Hey Grampy, I think this is one of the few times that I totally agree with you!!!

    Gotfish, your post says it so much better than I. Thank you. My original post was written late at night after a loong day at work. thanks again.

    Nerka, my post was not a personal attack but just stating what I viewed as an underhanded way of saying, THESE are my fish and if you want them, Buy them. Simply that. And yes, I am as gotfish says, very frustrated with all these attacks on people just trying to put fish in their freezers. Have a good day guys!!!!

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    Default different reasons for suit

    Quote Originally Posted by thewhop2000 View Post
    Hey Grampy, I think this is one of the few times that I totally agree with you!!!

    Gotfish, your post says it so much better than I. Thank you. My original post was written late at night after a loong day at work. thanks again.

    Nerka, my post was not a personal attack but just stating what I viewed as an underhanded way of saying, THESE are my fish and if you want them, Buy them. Simply that. And yes, I am as gotfish says, very frustrated with all these attacks on people just trying to put fish in their freezers. Have a good day guys!!!!
    For gotfish and whop. There are multiple reasons for the suit. You can find commercial fisherman who want to do away with the personal use dip net fishery just like you can find personal use fisherman who want to do away with the commercial fishery. That is not the main reason for the suit and in fact most knowledgeable people about the suit does not think that will happen. Eventually if the process is followed a personal use fishery open to all Alaskans will be defined. It may look different - with a set allocation to it as opposed to being wide open or other areas opened to spread the environmental impacts.- more rivers - the Susitna river is one example. No one knows how this will play out.

    However, the main reason for the suit is the other standards. The personal use fishery resident violation is just the easy one to point out that the law is not being followed. One makes a strong case with the best violation. The other standards are more important to commercial fisherman who brought the issue to bear in UCI. You may not know it but this started in UCI and was followed up with a filing from PWS. UCI is also before a federal judge. Back to the reasons.

    1. Best science - at the recent Board of Fish meetings in both areas the best available science was not used in the decision making or was there a process to determine best available science.--

    2. MSY management - commercial fisherman has always felt MSY management was the standard for which salmon fisheries should be managed. The state creation of SEG's OEG's and threshold escapement levels has been a sore point and may not be legal under MagStevens.

    3. Adminstrative record - the MSA calls for a complete record of proceedings so pepole can understand how the process took place. The committee process of the Board of Fish is not a complete record as it is not recorded. The findings written in a number of cases do not reflet the testimony and therefore are in violation of MSA

    4. No back room deals - the State, and I know this from personal experience, goes into a back room and discusses proposals with individual board members and staff. Sometimes there are more than one Board member. In addition, the Board has sent groups off to work out deals - like in 2005 in a hotel room not open to everyone. This is clear violation of MSA relative to the record.

    5. The MSA requires that fishing communities be given a preference in the decision making. Now MSA recoginizes both commercial and recreational use so what is a fishing community is beyound my understanding. I would assume there is case law on this.

    6. The MSA requires that other federal laws be followed. So actions of the state must comply with the Clean Water Act, Endangered Speices Act, .... the Board of Fish has never brought these into their discussions and thus the hydrocarbon issue had to get to a crisis before the Board discussed it. The turbidity issue on the Kenai was brought before them and they ignored the testimony. Impacts on migratory birds were ignored in the personal use discussion. The Board must expand its view.

    7.. The federal gov via the Sec of Commerce must review the State regulations to make sure essential fish habitat is being protected by the State. The Board of Fish and ADF&G has not done that relative to invasive species and development. The suit wants the State to take these issues seriously and work toward solutions.

    Basically, the State has ignored parts of the MSA and the Sec of Commerce has not reviewed the State's actions for 19 years. Prior to that the federal gov did some review. So it is a breakdown of fedral/state agencies to do their jobs.

    If you look at this like we look at migratory birds or marine mammals one can see how it would work. The federal gov has the legal right to make sure fed law is followed. They do not want to do day to day management and therefore would delegate this to the State (they did this in 1991) but they retained ownership of the salmon under federal law - So the hype about federal management and take over is not true. What is true that a better system of data collection, review, procedures, habitat protection, and oversight should come out of this process if the suit is found in favor of those filing it. I personally think that is a good thing. The State has become too isolated and lost touch with their mission relative to fish management.

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    Default

    Great information Nerka. Thank you!

  10. #10

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    Interesting... Thanks for the info Nerka. It will be interesting to see what comes of all this.

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    Default agree

    Nerka, on this I agree with you. Though seen through different lenses, we've apparently both seen many of the same things going on at the board meetings which frustrate us. I personally think that the state is out of compliance with federal law in some areas of fish management, as well as being out of compliance with state regulations. If the court process looks at the issues as you've presented them, there may be no winners in the state, or we may all be winners. Ideally, our fish resources will be improved whatever the outcome of the trial.

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    Default the suit

    While some of the other issues mentioned may be relevant, the main purpose of the suit was none of the above.

    Herb Jenson who filed the suit is a seiner and gillnetter in PWS. But the emphasis is on the seining. That's where he makes the really big bucks.

    The BOF cycle before this one, the seiners played hardball politics and got the BOF involved in an allocation war that should never have been started. It was all about hatchery fish produced by Prince William Sound Aquaculture Corp. The few seiners who had markets then had willingly fished for 8-12 cents/lb for pinks to gain unlimited markets. It forced many to sit on the beach as they couldn't justify fishing for that amount with the price of insurance and fuel so high. By fishing for such a low price, it brought the overall value of the seiners' catch down, but only between a third and half the fleet was fishing so those still with markets did OK.

    What happened then was, they had forced other permit holder out of the fishery, and they decided to go for fish dedicated to the gillnet fishery, Esther Chums.

    A brief history of PWSAC is in order. Here's a good read.

    http://home.gci.net/~ncg/Pages/FCons...Allocation.pdf

    But the basics are, When PWSAC started it was all about pinks and helping them recover from habitat changes due to the earthquake in 64. After it got going, gillnetters were invited to join in. They started paying aquaculture assessments to help build more hatcheries. They weren't getting any more fish at the time, but the promise was, they would get their own hatcheries and fisheries in the future. The plan was to produce fish for each group at the historic rate which was close to 50-50. Some foresaw allocation problems, thus the by-law that any major differences in catch would be handled by production changes in PWSAC and specifically "not by allocation".

    For whatever reasons, PWSAC wasn't doing a great job at keeping things even so an allocation plan was drawn up. It had a trigger point at which fish from one group would be given to the other if one group was below that trigger of 25%. The gillnetter would get the seiners' Port Chalmers chum fishery, and the seiners would share the Esther Chum fishery.

    "The Board of Fisheries met in Cordova Jan 31- Feb 6, 2003. They adopted an amended
    version of a proposal which increased the piggy bank trigger from 25% to 40%. This
    action made it easier for a gear group s ex-vessel value ration shortfall to trigger the
    "Piggy Bank" clause in the following year."

    What brought this on was the seiners and they played the political end of this hard. They got the trigger changed to 40%. Imagine their chagrin when last year because of the rise in pink prices and huge runs the last two years, the balance tipped the other way and the new trigger allowed the gillnetters a chance to fish Port Chalmers. So they went to the BOF this last year to try to get Chalmers back. The BOF seems to have had little sympathy for them as they brought this on themselves. So now Herb and his lawyer who also holds a PWS seine permit I'm told, filed this suit as sour grapes. They didn't mind the political process when it helped their cause, but they are suing because it didn't help them this time.

    My own opinion is, this issue should never have gotten to the BOF in the first place. It should have been an internal PWSAC matter. The main problem tho is not the amount of fish produced for each group, it was what the values of those fish did. Pinks are a two year fish so it's a little easier to have an idea what their value will be when they return, chums at 3 and 4 years and sockeyes at 4 and 5 years are a little harder. Then you also have no idea how ocean conditions will affect the different stocks which have different lifestyles and different feed. It's an inexact science at best to expect the hatchery to be able to predict with certainly how many fish will return in a certain year and how much they will be worth. And you can only produce so many fish without causing habitat problems and problems with the wild fish that compete with them. There has to be some leeway for the things the hatcheries can't control.

    But this lawsuit is short sighted and has the potential to affect all salmon fisheries in the State. All this because for some people, no matter how much they have, it's not enough.

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    Default Twodux - you need some more information

    Twodux you need some more history. This issue is about what I pointed out. It started in Upper Cook Inlet. They paid for the research on this and they have filed their own suit against the Sec of Commerce. The PWS suit piggybacked on the UCI actions. The reasons for PWS suit may be as you say but the original issue was a UCI issue and for the reason I stated. It is just a matter of timing. If you do some research you will see that last July UCI fisherman filed a complaint with the Sec of Commerce - 1700 pages of documents. That is what started this - not the Jenson case.

  14. #14

    Default Hmm

    Looks like the winds of change are blowing. Anyone want to buy a dipnet? It seems like something over a year ago I suggested that the State start talking to these guys. Now it looks like it could be all or nothing - probably nothing based on what I've read. Stevens is out - Obama is in. The country is in a recession and the Alaska salmon industry is worth about $1 billion in exports. I don't think the DC boys will care whether anyone from Palin's hometown has to buy their salmon or catch them on a rod and reel, as long as it ain't with a dipnet.

    Seems like I read something on the Highliner about the gillnetters in PWS filing suit to stop this same allocation plan. What's the deal here? I heard that there are about 500 gillnetters in the Sound and they pretty much just run roughshod over the 100 seiners at the BOF and in their own aquaculture corporation. A guy I know said that even the commercial fishing organization, CDFU, got involved in the lawsuit against the seiners and the allocation plan. Now, there are no seiners in CDFU.

    I always figured it would be the Cook Inlet guys who would drag the state into federal court. Go figure.

  15. #15
    Member thewhop2000's Avatar
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    Default Against the 11th amendment, per the state.

    There are so many assessments and so little real time fact-finding, to quote most has what has been posted here. I have read the states reply and ,in my humble opinion, they have merit. The feds have no basis to re-adjust what has transpired and that is my only small opinion. The Courts have the final say, we will just have to wait for the "FIRST DECISION."

    I got to talk with Sarah yesterday and she was somewhat suprised on the suit, But... She is taking a wait and see attitude llike most of the state government. Everyone has an opinion but... they are like buttholes, everyone has one. Everything posted here has merit but the bottom line is the Courts have the final say. So now we wait and see... Good thread guys... A lot of good info was put out here and I learned alot. "NEXT"...

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    Default the thread

    Quote Originally Posted by Nerka View Post
    Twodux you need some more history. This issue is about what I pointed out. It started in Upper Cook Inlet. They paid for the research on this and they have filed their own suit against the Sec of Commerce. The PWS suit piggybacked on the UCI actions. The reasons for PWS suit may be as you say but the original issue was a UCI issue and for the reason I stated. It is just a matter of timing. If you do some research you will see that last July UCI fisherman filed a complaint with the Sec of Commerce - 1700 pages of documents. That is what started this - not the Jenson case.
    You probably have a point as far UCI, but that isn't what the thread was about. The thread was about Herb's suit which was brought because of the allocation battle pushed by Herb and the seiners. They may have piggybacked the UCI suit, but only because of convenience.

  17. #17

    Default Main Bay

    I made a couple of phone calls - it seems that the BOF made personal use and alaska subsistence a priority over hatchery cost recovery at the March meeting, and the commercial guys get the left-overs.

    I know where I'll be this summer - sitting in front of Main Bay with a 50 fathom gillnet!!! Way easier than dippin the Kenai, plus halibut, rockfish, Shrimp - and maybe a spring bear. Better catch while the catching is good - I doubt the commies will sit by and watch us pukers string gillnets in front of the hatchery for very long...

    Twodux, you sound like a gillnetter, where is the best set at Main Bay? I want to get my salmon early so I can spend the summer halibut fishing, especially since I probably won't be dippin the Kenai this summer.
    Last edited by Big Dipper; 03-22-2009 at 21:36. Reason: forgot that shrimping will also be open

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    Default suit

    Quote Originally Posted by Big Dipper View Post
    Seems like I read something on the Highliner about the gillnetters in PWS filing suit to stop this same allocation plan. What's the deal here? I heard that there are about 500 gillnetters in the Sound and they pretty much just run roughshod over the 100 seiners at the BOF and in their own aquaculture corporation. A guy I know said that even the commercial fishing organization, CDFU, got involved in the lawsuit against the seiners and the allocation plan. Now, there are no seiners in CDFU.

    I always figured it would be the Cook Inlet guys who would drag the state into federal court. Go figure.
    The gillnetters filed suit after the previous BOF decision. They didn't want the 40% trigger, and if we were stuck with it, we wanted the values of the two fisheries compared fairly. This was about hatchery produced fish, but originally they were using all salmon instead of just hatchery stocks. This meant the higher priced Copper River Reds and Kings brought the average up for the gillnetters when compared against the pinks that the seiners caught. There were also bookkeeping discrepancies between how the various canneries reported earnings. That was settled with the most fair comparison we could get, although the average price for a Gulkana hatchery sockeye was artificially high because ADF&G claimed they couldn't differentiate between Gulkana fish and the wild fish.

    As for the rest of your "somebody told me" story....

    The only ones running roughshod were a group of the seiners. They set everything up at the Valdez BOF meeting and the gillnetters were blindsided. There were a lot of shenanigans going on that I'm not going to go into, but a certain board member quit rather than come to Cordova for this year's meeting. (He claimed it was for something else, but he tried to get the meeting moved from Cordova where it was scheduled. When that didn't work, he quit. So I believe he didn't want to face some people.)

    As for CDFU, The seiners hadn't been much of a part of it in years, well before this ever got started. The guys who used to be members were some of the guys that lost their markets or couldn't afford to fish because of the guys who were willing to fish for nothing. These are mostly the same guys who scabbed when the seine fleet tried to negotiate better prices. In other words, they went fishing while the CDFU seiner members stayed on the beach. But to think gillnetters run roughshod over the seiners, think again. What happened was the seiners woke a sleeping lion when they made the grab for Esther. While the gillnet division of CDFU helped with the suit, many who weren't CDFU members contributed to the fund for the suit. And for as few members as the seiners had in CDFU, they were well represented. Besides the two seine division reps, there are also two pound division reps who are seiners. Now when was the last time there was a herring pound fishery in the Sound? And why does a division that has only two members have two reps on the board? That's the same amount as the gillnet division that had 80% or so of all the CDFU members. To me, it's to give the seiners a solid block of 4 on the board to counter what anyone else wants. Who's bullying who?

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    Wink Nice try

    Quote Originally Posted by Big Dipper View Post
    I made a couple of phone calls - it seems that the BOF made personal use and alaska subsistence a priority over hatchery cost recovery at the March meeting, and the commercial guys get the left-overs.
    Nice try Dipper!

  20. #20

    Default Seine v. gillnet

    Twodux - I guess I don't understand the whole gillnet v. seine thing. Based on what I read, I'm not so sure that the State response to the lawsuit has merit. I'm concerned that the State will blow any possibility of maintaining a personal use fishery because they wouldn't sit at the table and address concerns that were raised by commercial fishermen in Cook Inlet regarding the legitimacy of the state regs.

    The guys I was talking to about the PWS gear fight kept going off about whales and some lawsuit about that. Any idea what that is about???? Sounded pretty far-fetched to me, but I don't really know much about that side of the hill.

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