Power of the Commissioner of ADFG

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  • Power of the Commissioner of ADFG

    First retirement in California is OK but not like living in Alaska. I miss Alaska but health and age caught up with me. However, I still read about Alaska fishery issues and one recent plan of the present Commissioner of ADFG caught my attention. I followed this up with discussions with ADFG employees and the source was accurate and this is planned for this coming season (source KDLL ) The direction of the plan was to fish the 24 hours the set nets get each week on weekdays and not on weekends. The rationale was to put more fish into the Kenai for PU fisherman. No matter how one feels about UCI allocation every user should be concerned that the Commissioner is making up his own management plans and those are based on one user group fishing success. First this Commissioner has demonstrated numerous time he is very ignorant of fish behavior and management in UCI. Even putting that aside the question is " Does the public really want a Commissioner who can just alter management plans and set his or her own agenda? I think this is very dangerous. The Board process even though it is flawed does allow the public to have input. The plans are subject to the various laws and regulations governing public policy. When a Commissioner acts on his/her own private agenda without process it puts everyone at risk. First poor decisions can result in major consequences, second the public loses confidence in ADFG as being fair and objective. Obviously in the above case the Commissioner has decided the PU fishery has a priority over the commercial fishery and Kenai River sockeye escapement goals. In the last couple of years this Commissioner has cost the State millions of dollars in revenue because of his ignorance and allocation agenda. However, for this forum that is not the question. My question is about the power of the Commissioner. He may not even have this authority but a court would have to decide that or a public backlash. One day there will be a Commissioner who favors commercial fisherman and he/she may decide the PU fishery should only get what the commercial fishery cannot harvest = how would one feel then?

  • #2
    Hey Nerka, great to see you back, now let me pummel you, LOL!
    P/U is the largest user group, yet has been treated like they deserve nothing but scraps for decades...no infrastructure, no investment in this important fishery, while commfish has always gotten the red carpet treatment and the sweetheart backroom deals...if they have to compete on a level playing field now, well tough noogies...
    " Gas boats are bad enough, autos are an invention of the devil, and airplanes are worse." ~Allen Hasselborg

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    • #3
      By law, what is the actual priority by fishery?
      I would rather have questions that can't be answered than answers that can't be questioned. Physicist ― Richard Feynman

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      • #4
        Originally posted by cdubbin View Post
        Hey Nerka, great to see you back, now let me pummel you, LOL!
        P/U is the largest user group, yet has been treated like they deserve nothing but scraps for decades...no infrastructure, no investment in this important fishery, while commfish has always gotten the red carpet treatment and the sweetheart backroom deals...if they have to compete on a level playing field now, well tough noogies...
        This is not about who has been treated fairly or not. It is a question about whether one wants a Commissioner to just make up his/her plans. Remember what goes around comes around.

        You have a twisted view of how the PU fishery has been treated. Look at the number of fish entering the Kenai and amount of fishing time and limits. They are rarely restricted, have the use of gill net material in the nets, have no quota on harvest, and cost to participate is minimal. The only unfounded complaint is that fish do not enter on the weekend peak days. We also know that PU fisherman rarely take their limit. I think the average family takes around 20 sockeye. Again we can debate this point on another thread. Simple question - do you support the Commissioner having total authority to change management plans or write new ones without public input and lack of Board of Fish participation? I think it is bad public policy.


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        • #5
          I would favor a commissioner who listens to the biologists with emphasis on those more senior. If the commissioner side stepped the committees and boards to cut through the political BS I'd be all for it as long as he/she was managing for the resource.

          We all have an agenda in my experience. Some seek public service to exercise it.

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          • #6
            You bring up a very valid point Pat. I keep hearing on the forum constant complaints about the commish exceeding their authority, especially from certain user groups, when they make decisions counter to their specific interests. But, if the commish is indeed exceeding their authority, a court order can change that decision if it indeed violates the law. It's really easy (maybe too easy!) to get a TRO/injunction granted. So, if this latest directive from the commish does indeed violate the law, maybe the specific aggrieved user group should pursue it in the courts.
            And if it does not violate the law, well then good luck and welcome to the new reality.
            Originally posted by Patsfan54 View Post
            By law, what is the actual priority by fishery?

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            • #7
              I'm still trying to figure out what the point of this complaint is. Is it that the fish know what the day of the week it is? Is it that a certain user group catches more fish than others on certain days of the week in which the fish somehow know they will be caught? If the commissioner is following all of the laws and does so while employing common sense so as to serve user groups more equitably, then are we just complaining because we expect government to not actually serve the people but instead do a disservice at every possible chance? Is the commissioner even altering the management plan?

              And once again I ask...by law, what is the actual priority by fishery? Nerka, please inform us. Did the commissioner decide the priority or was it already decided, by law?
              I would rather have questions that can't be answered than answers that can't be questioned. Physicist ― Richard Feynman

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              • #8
                Nerka - Nice to know you’re doing well, and still engaged in the fishery issues in the Great Land!

                I read your post closely. It appears he is asking/directing the PU and setnet fisheries be opened or closed on specific days (weekends or weekdays). Based on what you wrote, he is not allocating the catch, per say. He’s just designating which days of the week the fisheries should be opened. One could argue that opening and closing a fishery is a form of allocation, but the better question is: Is this action within his current authority?

                Not sure. But if it is, don’t be surprised if this is the ‘new normal’. For better or for worse. If not, it’s likely that some user group will challenge his actions in court. The courts can decide whether the Commiss or the BOF has the authority. And the BOF should be complaining loudly (i.e., publicly) that the Commiss overstepped his authority. Has there been any pushback from the BOF members?

                Ideally, the Commiss should submit a plan to the BOF for consideration. The BOF can then run it through their public process to get input (along with other competing proposals). At some point, the BOF would make a decision on which days of the week the various fisheries should be open or closed. But I suppose if this had been done, there wouldn’t be a concern......

                Is the Commissioner’s plan proposed or is it final?

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                • #9
                  Whether this action is within his current authority or not, it is poor management. The board should decide on goals,(both allocation and escapement), and let the local management team decide how to achieve those goals. These management decisions made in an anchorage or juneau office long before the start of season is a foolhardy way to manage fish runs. There is no way to know run size, run timing, weather etc. months in advance. And fish certainly do not rely on a calender to decide when to make their surge to the river.
                  Last edited by gunner; 2 weeks ago. Reason: Sp.

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                  • #10
                    Originally posted by Cohoangler View Post
                    Is this action within his current authority?
                    That is the relevant question here, and if it were me, I would challenge the Commissioner/his representatives to cite the specific statutory authority under which they propose this action, and go from there. I bet they haven't vetted this idea through their attorney. 5 AAC is very specific about the conditions/circumstances under which the Commissioner is delegated authority to make such management decisions within a given fishery, and I don't see anything applicable to the proposal as described by Nerka. If anyone thinks otherwise, please cite the statute you believe would give him such authority.
                    ...he who knows nothing is nearer to truth than he whose mind is filled with falsehoods & errors. ~Thomas Jefferson
                    I would rather have a mind opened by wonder than one closed by belief. ~Gerry Spence
                    The last thing Alaska needs is another bigot. ~member Catch It

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                    • #11
                      Yes, that is a very valid point. Legal action will indeed define and resolve this issue.
                      And I see nothing under 5 AAC (or any other statue) that would prevent the commish from enacting this. So that sword cuts both ways. I'm not defending his proposal, personally, I would have had BOF do it, but then again, I'm not the commish.
                      And if the commish seriously didn't get a preliminary vetting by his legal council of this, then he is an idiot.

                      Originally posted by iofthetaiga View Post
                      That is the relevant question here, and if it were me, I would challenge the Commissioner/his representatives to cite the specific statutory authority under which they propose this action, and go from there. I bet they haven't vetted this idea through their attorney. 5 AAC is very specific about the conditions/circumstances under which the Commissioner is delegated authority to make such management decisions within a given fishery, and I don't see anything applicable to the proposal as described by Nerka. If anyone thinks otherwise, please cite the statute you believe would give him such authority.

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                      • #12
                        Originally posted by NorcalBob View Post
                        Yes, that is a very valid point. Legal action will indeed define and resolve this issue.
                        And I see nothing under 5 AAC (or any other statue) that would prevent the commish from enacting this. So that sword cuts both ways.
                        No, I very much disagree on that point. The statutes do not cut both ways. The Commissioner's authority to act is limited to the delegations defined within the statutes; the statutes set forth the specific circumstances under which the Commissioner may take specific actions, period. I'm not aware of any circumstance under which the statutes allow the Commissioner to take unilateral action in the absence of a statute prohibiting such action. Again, if you believe I'm incorrect please city the statutory language you believe would give the Commissioner the authority to take such actions as Nerka described.
                        Last edited by iofthetaiga; 2 weeks ago.
                        ...he who knows nothing is nearer to truth than he whose mind is filled with falsehoods & errors. ~Thomas Jefferson
                        I would rather have a mind opened by wonder than one closed by belief. ~Gerry Spence
                        The last thing Alaska needs is another bigot. ~member Catch It

                        Comment


                        • #13
                          I've read AAC 5 in its entirety several times, so we can agree to disagree.
                          I don't think think this issue is cut and dry from a legal statue viewpoint and the courts are gonna have to decide. So if commfishers want to fight it, they should. I think this would be a much cheaper and faster legal fight than UCIDA's MSA lawsuit, so..................................
                          And I'll also repeat my earlier comment that if this did not get a preliminary vetting by the commish's legal council, he's an idiot.
                          Here AAC 5 quite clearly gives the authority to issue subsistence fishing permits to the commish.

                          5 AAC 01.015. Subsistence fishing permits and reports (a) Salmon may be taken only under the authority of a subsistence fishing permit issued by the commissioner, unless a permit is specifically not required in a particular area by the subsistence regulations in this chapter, or unless the fisherman is retaining salmon from the fisherman's commercial catch consistent with 5 AAC 39.010.

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                          • #14
                            Originally posted by iofthetaiga View Post
                            No, I don't believe it does cut both ways. The statutes set forth the specific circumstances under which the Commissioner may take specific actions. I'm not aware of any circumstance under which the statutes allow the Commissioner to take unilateral action in the absence of a statute prohibiting such action. Again, if you believe I'm incorrect please city the statute you believe would give the Commissioner the authority to take such actions as Nerka described.
                            This is exactly correct. As an ordinary citizen, we can take any action we want, provided we stay within the confines of the law. However, government officials, or any government employee, they can do NOTHING without the specific authority from Congress or the State legislature. That is the critical distinction between a citizen and a government official. All government employees need to fully understand this, including the Governor. Sadly, not all do.

                            So, it would be helpful if the Gov could outline the specific legal authority he is relying on to make this decision (as Iofthetaiga and NorCal Bob are trying to do).

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                            • #15
                              Originally posted by NorcalBob View Post
                              I've read AAC 5 in its entirety several times, so we can agree to disagree.
                              I don't think think this issue is cut and dry from a legal statue viewpoint and the courts are gonna have to decide. So if commfishers want to fight it, they should. I think this would be a much cheaper and faster legal fight than UCIDA's MSA lawsuit, so..................................
                              And I'll also repeat my earlier comment that if this did not get a preliminary vetting by the commish's legal council, he's an idiot.
                              Here AAC 5 quite clearly gives the authority to issue subsistence fishing permits to the commish.

                              5 AAC 01.015. Subsistence fishing permits and reports (a) Salmon may be taken only under the authority of a subsistence fishing permit issued by the commissioner, unless a permit is specifically not required in a particular area by the subsistence regulations in this chapter, or unless the fisherman is retaining salmon from the fisherman's commercial catch consistent with 5 AAC 39.010.
                              Ok, so playing devil's advocate for the moment and attempting to make your case / anticipate your legal argument, I assume it would boil down to the following: Given that there is currently no statutorily defined Upper Cook Inlet Salmon Subsistence Fishery Management Plan (5 AAC 01.592 having been repealed in '95), you fall back to the general provisions of the subsistence fishing permit requirements language, which you cited, and tho you didn't cite it specifically I assume you would hang your legal argument hat on this sentence: "(4) the permit may designate the species and numbers of fish to be harvested, time and area of fishing, the type and amount of fishing gear and other conditions necessary for management or conservation purposes;". At face value, to the point of authority to act, that might be a winning argument in court. In court my counter to such would be to challenge you to specifically define and defend the management or conservation purposes which you propose would necessitate and be achieved by your apparently arbitrary choice of a calendar schedule conceived prior to and in the absence of any resource population data.
                              ...he who knows nothing is nearer to truth than he whose mind is filled with falsehoods & errors. ~Thomas Jefferson
                              I would rather have a mind opened by wonder than one closed by belief. ~Gerry Spence
                              The last thing Alaska needs is another bigot. ~member Catch It

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