Personal Use fees - illegal?

[Nerka]

The Board under 5 AAC 77.001 “created a new category of fishing to replace subsistence fishing called personal use”. Personal use was created to replace subsistence fishing, not sport fishing.

Where as the Board has extensive regulatory powers under Sec. 16.05.241 Powers Excluded, “it does not have Administrative, budgeting or fiscal powers.”

Where as the Board has extensive regulatory powers under Sec. 16.05.251, none of them allow the board to require a license or impose a use tax on any user, these powers are reserved for and by the Alaska State Legislature:

Where as the Board has extensive regulatory powers under Sec. 16.05.330 Licenses, tags, and Subsistence permits; there is no fee or tax for a personal use permit:

Where as under 5 AAC 77.001. Intent and application of this chapter the board has created a new category of fishing to replace subsistence called personal use under the following regulation;
“ (a) The Board of Fisheries finds that
(3) there presently are areas of the state with harvestable surpluses of fish in excess of both spawning escapement needs and present levels of subsistence, commercial and sport uses; and
(4) it is necessary to establish a fishery classified as "personal use" because
(A) Since the sale of fish is not appropriate or permissible, this fishery cannot be classified as commercial;
(B) Since the use is not a customary and traditional use, this fishery cannot be classified as subsistence; and
(C) since the gear for this fishery is often different from that historically associated with sport fishing, this fishery should not be classified as a sport fishery, to prevent confusion among the public.
Since personal use by definition as established by the board is not a sport fishery it should not require a sport license. With the addition of the hatchery surcharge the cost of a Sport Fishing license has become cost prohibitive for many Alaskans.
Where as 5 AAC 77.010. Methods, means, and general restrictions requirethat:
(a) Finfish, shellfish, and aquatic plants may be taken for personal use only by a holder of a valid resident Alaska sport fishing license or by an Alaskan resident exempt from licensing under AS 16.05.400 .
Where as the Board has many regulatory powers to conserve and develop fisheries they do not have the authority to require a license to participate in this fishery absent guidance from the legislature. The requirement to have a sport fish license to participate in a personal use fishery costs the average family 100 dollars, which is excluding poorer residents from participating in this fishery. This is leading to a foregone harvestable surplus that should be harvested in many areas of the state. I hereby request the Board and the Department of Law delete the sport fish license provision from 5 AAC 77.010 (a) to allow all state residents to participate in this fishery with a personal use permit.
This petition was submitted today to the Board of Fisheries to elimnate the fees associated with PU fisheries. It makes sense to me as the BOF does not have the power to impose user fees, only the legislature.
I just thought people would like to see and comment on this.

[gotfish?]

amazing

If it walks like a duck and quakes like a duck it's a duck. Quack Quack... Besides, how can we expect all these poor people to have gas for the motorhome if they have to buy a permit?:cool:

[thewhop2000]

Who owns a motorhome?

Is it that setnetter that lives in the dunes for the fishery? Is it the personal user that shows up for a weekend, one weekend out of the year? Check out the north shore on a weekend and see how many high end vehicles are parked there. I was amazed that some of those vehicles I saw on the North shore even ran, to get there. I saw nothing newer than a 9 year old vehicle. Maybe you are confusing those motorhomes with the Nilchina caribou hunt. liers -poker there. You are way off base when it comes to the PU fishery. What does the fee have to do with tea in china anyway? Since it was passed, the commercials have tried every year to shut it down. Fee or no fee, it is a way that the average Alaskan can put some fish away without having to buy it from the commercials and what is sooo wrong with that? Unless of course, you are a commercial> Nuff said.

[Nerka]

missed the point

The issue here is whether the Board of Fisheries acted legally, not the fee per se. If they did not the next legislature needs to put a fee on the fishery if one is needed. That debate is to be in the legislature not the Board of Fisheries forum. Hope this clears this up.

[gotfish?]

commercial?

Whop, you don't have to be commercial to see that a whole host of problems come with our dipnet fishery here in Kenai and that in the long run it could cause a lot of damage. The reason I pointed out the motor homes was that many of those participating are not exactly just trying to "feed the family". The sheer numbers alone create problems. Trash, human waste, environmental damage are a few of these. Unlike the commercial fishermen who filed the suit, I have no stake in this. I am just a concerned citizen. As far as the fees go, it seems to me as currently written and imposed that they are illegal. I have a question for you whop..... do you think those participating in this fishery should have to pay enough to cover all the expenses associated with managing and policing this fishery?

[TYNMON]

Whop, you don't have to be commercial to see that a whole host of problems come with our dipnet fishery here in Kenai and that in the long run it could cause a lot of damage. The reason I pointed out the motor homes was that many of those participating are not exactly just trying to "feed the family". The sheer numbers alone create problems. Trash, human waste, environmental damage are a few of these. Unlike the commercial fishermen who filed the suit, I have no stake in this. I am just a concerned citizen. As far as the fees go, it seems to me as currently written and imposed that they are illegal. I have a question for you whop..... do you think those participating in this fishery should have to pay enough to cover all the expenses associated with managing and policing this fishery?

Vast majority of the bank dipnetters are Alaskans that need the fish... Anyone that has participated in the fishery will attest to the effort required to catch fish at times.

I have witness a drift net boat do a 40 foot drive by on a whole line of dipnetters on the south shore at full speed just to disrupt there fishing and in my personaly opinion put them in grave danger... Shear malice... Very lame.

[gusdog44]

A permit can be required of those who can afford it......don't forget there is a low or no cost license available to low income residents of the state. The same law that allows that would probably allow a permit (fish stamp like for kings?) with the cost waived for low income license holders.

The main cause of habitat destruction (in addition to the a-holes who trash everything in Alaska) is the City of Kenai and their failure to enforce the anti-littering and trespass laws they already have on the books. Maybe they could do a better job of this and remove that problem from the fishery. They charge parking fees so there should be money to pay for enforcement.

[thewhop2000]

Fees I agree with

With the current fishing license system in place, if you are considered low income, you only pay 5.00. Yea, I am actually going to push for a ten dollar fee, if somehow it can be directed at the problems caused by the PU fishery.
Nerka can probably shed more light on this but from my understanding, as little as I do, that funds cannot be collected from the public and put towards a specific item in an Agency's budget. So it might take some legislation to address this. With over 20,000 households getting permits, let us say half qualify for low income. That still would leave a little bit of money to help cover the cost. If fish and game would sponser a beach clean up day and ask the public to partake, I would be the first in line. And... I would use my e-mail list to gather as many others to help too. Hope this answers your question.

[gotfish?]

lets stay focused

Tynmon, This is a thread about the status of the legality of fees for dipnetting. I guess I started leading it astray when I voiced my cynical opinion about the long term sustainability of the dipnet fishery. In case you don't read most the threads I am not a commercial fisherman. In fact, last summer you almost ran over my boat. The tide had almost slacked up at the pastures and EVERYBODY but you was still fishing facing upstream. I looked up and here comes a maroon boat trolling downstream right at me. It would have been one thing if you were in your own area doing your own thing, but you chose to barrell right through all the other boats still fishing faced upstream, and commented to them all to please move over and let me through. At least you were polite in your attempt to fish the hole differently than the other 30 of us there. The only reason I recall this is that you mentioned seeing a commercial fisherman demonstrate unexamplary behavior. We all need to stop pointing fingers and make sure our own behavior is exemplary. That goes for the dipnetters too. Tynmon, whats your take on fees?

[TYNMON]

Tynmon, This is a thread about the status of the legality of fees for dipnetting. I guess I started leading it astray when I voiced my cynical opinion about the long term sustainability of the dipnet fishery. In case you don't read most the threads I am not a commercial fisherman. In fact, last summer you almost ran over my boat. The tide had almost slacked up at the pastures and EVERYBODY but you was still fishing facing upstream. I looked up and here comes a maroon boat trolling downstream right at me. It would have been one thing if you were in your own area doing your own thing, but you chose to barrell right through all the other boats still fishing faced upstream, and commented to them all to please move over and let me through. At least you were polite in your attempt to fish the hole differently than the other 30 of us there. The only reason I recall this is that you mentioned seeing a commercial fisherman demonstrate unexamplary behavior. We all need to stop pointing fingers and make sure our own behavior is exemplary. That goes for the dipnetters too. Tynmon, whats your take on fees?

I think that dipnetting fee is resonable, not sure what price I would put on the licence. I have never thought it seemed appropriate that the city of Kenai charged only dipnetters access to a state beach.

As for running u over... I don't remember the particular incident and I always try to be as polite as possible when fishing, esp the Kenai... Now, once the tide has slacked it is a free for all and there is no "accepted" method... If you choose to stay in one place facing tend to backtroll more power to u. I typically like to hover fish w/ the tide or power troll and u may have fugured out that once the tide slacked many ppl "anchor" in place with the motor. As for barreling through 30 boats all asking them to move I find that to be a HUGE exageration.

I find it hard to understand u comparing equal fishing vessels battling for fishing position in a hole to a renegade gill net boat traveling 40 feet of the beach at full speed in an attempt to interfer and or harm beach dipnetters.... This boat wake was huge, 3-5 feet and most of the fisherman where waded out at least to their waist if not to their chest... This is a testament to commercial interests frustration w/ the PU fishery.

[Nerka]

back to the fees

In the petition letter to ADF&G was a request that if the lic. requirement is illegal that the Commissioner work with local Kenai Peninsula representatives to figure out a justifable fee for management of the PU fishery. This in my mind would include on site management costs of high use areas -

The City of Kenai Police Department put out a report on the PU fishery. It is available from the City. They had four full time seasonal officers working the fishery last year. It is an interesting read. The presence of the officers on the beach everyday reduced the number of calls because they were handled immediately. Anyway that is a different thread.

Relative to using fees they could not be given directly to ADF&G. They would go into the general fund and then back to ADF&G, DNR, or the City in their annual budget allocation. This is just like the commercial fishing fees and the legislature tends to be fair in this approach.

[MRFISH]

I guess I'm still struggling with the rationale for this petition. Regardless of whether or not the BOF exceeded their authority...I still don't see the point of this. Is it to make it cheaper? More expensive? Same price?

[Nerka]

not the point

I guess I'm still struggling with the rationale for this petition. Regardless of whether or not the BOF exceeded their authority...I still don't see the point of this. Is it to make it cheaper? More expensive? Same price?

The point is that amount - cheaper, more expensive, or the same price belongs to the legislature to set. An illegal act by one body of government should be corrected regardless of the time.

The petition does ask that poorer families or in the case of this coming year all families not pay to PU fish, unless of course the legislature has a special session to deal with it - which is unlikely.

If a family of four has two 16 year old children then they would pay 100 dollars in sport fish lic fees to PU fish. That seems very unfair to me and therefore the petition wants that provision eliminated. Let the legislature next session decide what is fair. Also, why would PU fisherman pay for hatcheries via the sport fish fees that provide no fish to the PU fishery?

It also appears to me that if the Board did not have the authority to set this in the first place they should not continue it for this year. That would be government giving authority to themselves to continue an illegal act.

[Just the Facts]

that funds cannot be collected from the public and put towards a specific item in an Agency's budget. So it might take some legislation to address this. .

At best the legislature could collect the fees and then appropriate the fee in general budget development to a specific cause. The legislature cannot collect a fee and have it automatically designated for a specific purpose except for a couple of funds that were set up really early and was grandfathered in. For example the enhancement assessment (tax) and marketing assessment (tax) is a self voluntary tax the commerical fishermen agreed to (voted for), that is collected and goes into the general fund but there is no guarantee that the legislature will turn around and pass that tax money back to the regional aquaculture associations or marketing associations. We take it on faith that they will and to date they always have.

[bushrat]

The way I understand it...

...the authority to set license requirements and fees falls under the jurisdiction of the legislature and not the BOF.

Art, isn't that clear in the statutes governing the Board? And the statutes Nerka quoted in the petition?

So on that basis alone this should not be allowed to stand. No comment on fee schedule, what Division that money collected would go to...just saying the Board can't legally do what they did and it's never a good thing to allow a body to exceed its statutory authority imo.