Power of the Commissioner of ADFG

Collapse

Announcement

Collapse
No announcement yet.
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • #16
    And I will also add, that AAC 5 may be a moot point because the PU fishery is neither a subsistence or sport fishery. Whoever created the PU fishery gets a gold star, because they defined it as neither sport, nor subsistence, nor commercial! So the PU fishery is a big grey area!

    Comment


    • #17
      I don't disagree with a single word you said!
      My entire point is, this is a grey area that will have to challenged in the courts (if so desired) to be resolved. It won't be resolved here on this forum.
      And I have no idea if the commish has the actual authority to do this, but I'd bet he does.
      I'm not a lawyer, I'm a former scientist who was a director of a major US lab who had a legal council team to do all the lawyering at my direction!
      And to somewhat answer your last question, John Q Public definitely supports the idea of a PU fishery, and given they most likely have jobs that don't give them the flexibility to pursue that activity whenever they'd like, except on weekends, they would probably like to see something along the lines of this proposal. Definitely not an arbitrary choice of a calendar schedule. Especially since Mike is in a big fight for his job!

      Originally posted by iofthetaiga View Post
      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currently no statutorily defined Upper Cook Inlet Salmon Subsistence Fishery Management Plan (5 AAC 01.592 having been repealed in '95), you fall back to the general provisions of the subsistence fishing permit requirements language, which you cited, and tho you didn't cite it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.

      Comment


      • #18
        2011 Alaska Statutes
        Title 16. FISH AND GAME
        Chapter 16.05. FISH AND GAME CODE
        Sec. 16.05.270. Delegation of authority to commissioner.



        Universal Citation: AK Stat 16.05.270 (through 27th Leg Sess 2012)
        For the purpose of administering AS 16.05.251 and 16.05.255, each board may delegate authority to the commissioner to act in its behalf. If there is a conflict between the board and the commissioner on proposed regulations, public hearings shall be held concerning the issues in question. If, after the public hearings, the board and the commissioner continue to disagree, the issue shall be certified in writing by the board and the commissioner to the governor who shall make a decision. The decision of the governor is final.
        " Gas boats are bad enough, autos are an invention of the devil, and airplanes are worse." ~Allen Hasselborg

        Comment


        • #19
          Originally posted by cdubbin View Post
          2011 Alaska Statutes
          Title 16. FISH AND GAME
          Chapter 16.05. FISH AND GAME CODE
          Sec. 16.05.270. Delegation of authority to commissioner.



          Universal Citation: AK Stat 16.05.270 (through 27th Leg Sess 2012)
          For the purpose of administering AS 16.05.251 and 16.05.255, each board may delegate authority to the commissioner to act in its behalf. If there is a conflict between the board and the commissioner on proposed regulations, public hearings shall be held concerning the issues in question. If, after the public hearings, the board and the commissioner continue to disagree, the issue shall be certified in writing by the board and the commissioner to the governor who shall make a decision. The decision of the governor is final.
          OK. So AS 16.05.27 allows the Board of Fish to delegate authority to the Commissioner for purposes of administering AS 16.05.251.

          The relevant language of AS 16.05.251 would be:
          (a) The Board of Fisheries may adopt regulations it considers advisable in accordance with AS 44.62 (Administrative Procedure Act) for
          (12) regulating commercial, sport, guided sport, subsistence, and personal use fishing as needed for the conservation, development, and utilization of fisheries;
          So now, the two questions I would ask the Commissioner and the Board:
          1) Has the board in fact delegated the authority to the Commissioner to make the decision in question in this specific instance? If so, please cite said delegation documentation.
          2) Again, please specifically define/describe/justify/defend the management and/or conservation purposes which you propose necessitate and would be achieved by your apparently arbitrary choice of a calendar based fishing schedule conceived prior to and in the absence of any relevant 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

          Comment


          • #20
            For the purposes of this discussion, let’s see if we clearly understand the issue. I’m not trying to derail the conversation. Really.

            Normally, the ‘Commissioner’ is legal jargon for (in this case) the Alaska Department of Fish and Game. The ADF&G and the BOF/BOG are separate entities with differing roles and responsibilities. But there is no legal difference between the Commissioner and ADF&G.

            It appears that in some instances, the BOF/BOG can delegate some decisions back to the Commissioner(ADF&G). Correct? If so, Nerka is questioning whether ADF&G should be making the decision. His question suggests that ADF&G doesn’t understand fish behavior or how the UCI fishery is prosecuted. I find that puzzling.

            Go back to Nerka’s original post that started this thread. Substitute ‘ADF&G’ whenever the word ‘Commissioner’ is used. Seems like the context of the question changes considerably. It’s not about the power of the Commissioner, as an individual. It’s about the power of ADF&G as an agency. We can question whether the Commissioner, as an individual, has the expertise to be making these decisions (he doesn't), but we ought not argue whether ADF&G, as an agency, has the expertise. They clearly do. But whether they have the legal authority to do so is a different question.

            Carry on.

            Comment


            • #21
              Alaska Statutes.Title 16. Fish and GameChapter 5. Fish and Game CodeSection 60. Emergency Orders.previous: Section 55. On-Board Observer Program.
              next: Section 65. Application Extension.
              AS 16.05.060. Emergency Orders.



              (a) This chapter does not limit the power of the commissioner or an authorized designee, when circumstances require, to summarily open or close seasons or areas or to change weekly closed periods on fish or game by means of emergency orders.




              (b) The commissioner or an authorized designee may, under criteria adopted by the Board of Fisheries, summarily increase or decrease sport fish bag limits or modify methods of harvest for sport fish by means of emergency orders.




              (c) An emergency order has the force and effect of law after field announcement by the commissioner or an authorized designee. An emergency order adopted under this section is not subject to AS 44.62 (Administrative Procedure Act).
              " Gas boats are bad enough, autos are an invention of the devil, and airplanes are worse." ~Allen Hasselborg

              Comment


              • #22

                For the purposes of this discussion, Personal Use isn't a grey area. Personal use is a non-subsistence use. That matters for both state and federal law.

                The commissioner's EO/Management authority must be used consistent with our laws/management plan(s). He has to follow the law and the directives codified by the BOF.


                5 AAC 21.360 Kenai River Late-Run Sockeye Salmon Management Plan
                (a) The department shall manage the Kenai River late-run sockeye salmon stocks primarily for commercial uses based on abundance. The department shall also manage the commercial fisheries to minimize the harvest of Northern District coho, late-run Kenai River king, and Kenai River coho salmon stocks to provide personal use, sport, and guided sport fishermen with a reasonable opportunity to harvest salmon resources.


                5 AAC 21.363 Upper Cook Inlet Management Plan
                (a) (5) in the absence of a specific management plan, it is the intent of the board that salmon be harvested in the fisheries that have historically harvested them, according to the methods, means, times, and locations of those fisheries;


                The extent of the Commissioner's authority is something to debate when we're balancing conservation decisions and managing mixed-stock exploitation. In this case he has simply decided to hold one user group in preference to another user group. I'm sure he would argue that he's merely providing "reasonable opportunity", however that's pretty laughable considering the success the PU fishery has seen prior to this management move.

                Anyone arguing that the PU fisheries on the Peninsula don't already have reasonable access is ridiculous. I guarantee that if I fish the Kenai 1-2 tides the week of 7/23 this season I'll have my family limit. I'll target the afternoon floods. No one who lives here would bet on me getting less than about 25 a tide, with high odds I fill the cooler in one whack. It's like clockwork, regardless of the setnet schedule. The boat dippers had 30+ fish days for weeks last year, and the year before. There is zero shortage of opportunity for dippers. I promise anyone who hits the Kasilof early will also get fish. It's always good early.

                Neither of our rivers should be managed to provide abundance on a specific day and time, but Mother Nature generally takes care of that if you read the tea leaves and put in the effort. It seems like we're managing these rivers to provide dependable abundance to the less motivated, less committed, less skilled folks who live further away. It's a disservice to local folks who depend on this resource more, and not consistent with any State or Federal management guidelines.

                At some point an out of state fisherman is going to sue for equal access and I'm going to feel the same way about that lawsuit as I've felt about the UCIDA lawsuit; Reasonable likelihood I won't like the results, but also reasonable likelihood they will win because we are not following the law.

                "Smokey this is not 'Nam, this is bowling. There are rules."

                Comment


                • #23
                  Originally posted by Nerka View Post
                  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?
                  Sam Cotton. In river sockeye fishing was junk for 3 of his 4 years. Dunleavy got a lot of support because of that.

                  Comment


                  • #24
                    Yep, and Sam wasn't the only commish who fits that criteria. There were many commish's who favored the commercial fishery over the past 20 years. There's a new sheriff in town now.

                    Originally posted by extrema View Post

                    Sam Cotton. In river sockeye fishing was junk for 3 of his 4 years. Dunleavy got a lot of support because of that.

                    Comment


                    • #25
                      Norcal Bob there is legal findings already on when the Commissioner can act pre-season. The Supreme Court ruled that ADFG cannot change a management plan just because they want to do it. The case involved action on chum salmon at False Pass back in the 90's. The ADFG via the Commissioner changed the trigger points. The court ruled that was illegal and that the Commissioner could only change a management plan when new information became available. That is information that the BOF did not have when they passed the regulation or management plan. A second case involved UCIDA which challenged the Commissioner emergency regulation authority when the Commissioner tried to change a management plan in UCI. ADFG lost that case also as the power of the Commissioner is limited. Saying user groups can go to court fails to recognize that Alaska changed the law more than a decade ago to make it hard to sue. First the initial cost of a TRO is around 15,000 today and if you lose you have to pay State costs. That limits the average citizen from questioning Government actions which was the intent. Next, a TRO is not a settlement of the issue only that you are harmed and have a chance to win in court. So you still have the cost of a full court case. We know that can run into 100,000 dollars or more depending on appeals. Also, even if you win you lose. The State changed how you can be paid for your costs if you win. It use to be 100% but the State changed that to I believe 20% (not sure of the exact figure but significantly less than 100%). So court cases are not really an option. But individuals are missing the point of my question - the law is the lowest form of ethical metrics. The question was should a Commissioner make allocation decisions outside the BOF management plans? Historically the answer is no. Why? Because it cast doubt on all in-season decisions by staff in managing the fisheries. It is hard enough to write emergency orders trying to meet management plans to have that undercut by a Commissioner who makes allocation the priority and rationale. Every decision would be questioned as an allocation decision rather than just implementing a BOF management plan or conservation rationale. I know first hand how the public questions motives and labels staff when they are just doing what the BOF dictates. This action by the Commissioner just makes that much harder at the local level. I do not think it is good policy or ethical for a Commissioner to say he/she is going to act unilaterally to meet a user groups desires after the BOF has spent years and hundreds of hours of testimony to reach an allocation decision. In this case the BOF already decided how to provide fish to the PU fishery with closures in the management plan. The action of the Commissioner goes way beyond those plans. Finally, every user group in UCI claims to be unfairly treated and in some cases that is true. Relative to the PU fishery they have not been treated unfairly if you objectively look at the historical record.

                      Comment


                      • #26
                        You're making a lot of assumptions in your post Nerka, starting with statement that the commish is changing the management plan. That's your opinion but not mine. I have not seen a single legally justifiable argument to support the claim the commish does not have the authority to do this. Just a bunch of opinions (and yep, mine is an opinion also). He is not altering any allocations, nor the allotted time described in the management plan. Just switching around days to fish, which has been done before. The rest is legalese that the courts can sort out which is beyond both yours and mine expertise. Take it to court and see what happens. And don't worry, I quite know what TRO/injunctions actually do, what they cost, etc., not my first rodeo. If UCIDA is investing the money in their MSA lawsuit, whose actual outcome is a total crapshoot (see the win the battle but lose the war scenario that's played out so far) they/someone else obviously have money for this one should they or anyone else desire. And this one will be much easier to litigate and less costly, with more benefit provided, IMNSHO.

                        Comment


                        • #27
                          Changing the day of the week does not change the priority of any fishery, the fish don't know what day of the week it is.

                          Changing the day of the week does not change the allocation of any fishery, the fish still don't know what day of the week it is.

                          Common sense should be used to serve user groups more equitably and isn't a bad thing. Some of us expect government to actually serve the people, it's unfortunate that some government employees think it's the other way around...they leave a bad impression on the public.
                          I would rather have questions that can't be answered than answers that can't be questioned. Physicist ― Richard Feynman

                          Comment


                          • #28
                            The question Nerka is asking is less about the substance of the decision than it is about who is making it. (Although I get the sense that if Nerka agreed with the substance of the decision, this would not be a topic for this BB).

                            In other words, has the appropriate process been used in this instance?

                            If the Commissioner/ADF&G has the authority to make the decision, there is nothing wrong with the decision, even if some folks may not like either the process or the outcome. However, if the Commission/ADF&G does not have the authority to make the decision, there should be some pushback from the BOF or whichever user group has been harmed. Has there been any?


                            If the correct process has been followed, and everyone is operating within the confines of existing law, this was a fair decision. Not much more to discuss on process. However, we can continue to debate the substance of the decision, if that’s what the issue really is.

                            Comment


                            • #29
                              Originally posted by Cohoangler View Post
                              The question Nerka is asking is less about the substance of the decision than it is about who is making it. (Although I get the sense that if Nerka agreed with the substance of the decision, this would not be a topic for this BB).

                              In other words, has the appropriate process been used in this instance?

                              If the Commissioner/ADF&G has the authority to make the decision, there is nothing wrong with the decision, even if some folks may not like either the process or the outcome. However, if the Commission/ADF&G does not have the authority to make the decision, there should be some pushback from the BOF or whichever user group has been harmed. Has there been any?


                              If the correct process has been followed, and everyone is operating within the confines of existing law, this was a fair decision. Not much more to discuss on process. However, we can continue to debate the substance of the decision, if that’s what the issue really is.
                              Not true cohoangler a cheap shot on whether I would post on this if a different outcome. I would and have been on the receiving end of poor actions by the Commissioner in my career. I always tried to let people know when the action was illegal. There is a problem with this forum. People do not do their homework and research the issue before posting wrong information. I would be more than happy to give examples where I testified in court on the illegal actions of the Commissioner. and the Board.. Do your homework.




                              Comment


                              • #30
                                Well, Nerka, your opinion is your opinion and nothing more. You claim this action is "illegal". Well then, prove the claim in a real court. This forum is not the court of Nerka, and Nerka does not get to be judge, jury, and executioner in this case. The commish either has the authority to switch fishing days or not. It will be a pretty simple legal case if any one desires to pursue it. And again your assumptions on people "not doing their homework" is wrong. I have worked in resource management at high management levels in my previous life, so you aren't the only one with experience in this arena. Again, giving past examples of "illegal" actions is completely irrelevant for this case, and you'd get laughed out of court if that is the only defense you can muster. Some of us have done our homework, but because it's an answer you don't want to hear, you dismiss it.

                                Comment

                                Footer Ad Module 300 x 300

                                Collapse

                                Footer Adsense

                                Collapse
                                Working...
                                X