Court hears oral arguments on request to dismiss fishery commission suit

  • By LISA PHU
  • Wednesday, July 20, 2016 9:50pm
  • News

Commercial fisherman Robert Thorstenson, Jr. is precisely the right person to bring a lawsuit against the governor and the State of Alaska, according to his lawyer during oral argument in Juneau Superior Court Tuesday.

“This is the livelihoods of fishermen that are deeply involved in the system,” attorney Bruce Weyhrauch said in court.

Thorstenson, the original plaintiff — United Fishermen of Alaska later joined the suit as plaintiffs in April — was not present Tuesday, but he said last week by phone that Gov. Bill Walker’s Administrative Order 279 was the “one major hiccup” for an administration that’s done an “exceptional job with commercial fisheries.”

“The Walker administration has been fish friendly, commercial fish friendly, great on the Board of Fish, great on appointments, great on everything,” Thorstenson, also a commercial fisheries lobbyist, said. “We love this administration. I love this administration. I think the governor is doing a tremendous job with his fisheries team, with this one exception.”

The administrative order, issued in February, would transfer many functions of the Commercial Fisheries Entry Commission into the Alaska Department of Fish and Game. CFEC was established in 1973 by the Alaska Legislature to limit how many people can participate in the state’s commercial fisheries.

Walker’s order would specifically transfer the administrative and research functions of CFEC to ADFG, including licensing and permitting, IT, accounting, payroll, procurement and budget services. CFEC would maintain its adjudication functions, including the two current commissioner positions and legal staff.

The lawsuit claims the administrative order “unconstitutionally takes authority from the Alaska Legislature” to change statutes and policies related to CFEC, and transfers functions of CFEC that “serve the core purposes” and are “critical” to the operations of CFEC.

“I don’t understand it. I don’t think it makes sense,” Thorstenson said. “I’ve interviewed about a thousand permit holders — there’s about 11,000 of us — and out of the thousand, not one agrees with (the administrative order). All 1,000 disagree with it.”

Attorneys for Walker and the state asked the court to dismiss the case in April. Oral arguments on that motion took place Tuesday.

Despite Thorstenson’s ties to commercial fishing, state attorney Janell Hafner said he and UFA lack standing to bring the lawsuit forward.

Based on the lawsuit’s claim that the governor’s administrative order usurps the Alaska Legislature’s authority, Hafner said the Legislature has better standing to sue.

“Clearly the Alaska Legislature is more affected by and certainly more attuned to an order that would ostensibly take legislative power away from it in the manner that the plaintiff’s complaint suggests,” she said.

The state also argued that the plaintiffs failed to show they have or will be harmed. In pleadings to the state’s motion to dismiss, Hafner said the plaintiffs referenced two types of harm — CFEC’s loss of autonomy and the potential for that loss of autonomy to cause higher fees.

“Plaintiffs’ fears of a future harm that might befall them at a future date are untethered to the order’s text, they are unmoored from its implementation and they are based on hypothetical events that might never unfold,” Hafner said.

She said the court should not rule on “hypothetical” issues. Instead it should dismiss the case and allow the facts an opportunity to develop.

Weyhrauch said the plaintiffs, who are commercial fishermen, have established standing to sue. Not only do they pay the fees that allow the agency to run, they’ve relied on CFEC to be devoid of conflict, fair and impartial.

“The discretionary functions on transfers, hearings, adjudications, permits, data management can’t be simply picked up and moved to an agency that has no familiarity with those,” he said.

Instead of dismissing the case, Weyhrauch argued for the court to allow the parties to present their facts.

“There is no prejudice to the state to litigate this case and these facts right now rather than face another challenge and then another motion to dismiss and then further continue judicial resources, because that’s what will happen. This is of supreme importance to these plaintiffs and that’s why they’re here,” Weyhrauch said.

The judge on the case, Superior Court Judge Louis Menendez, said during oral argument that he’s familiar with commercial fishing and CFEC. He’s spent time as a private lawyer and as a district attorney in Dillingham and the Bristol Bay area, and his father was a commercial fisherman.

Menendez has up to six months to issue a decision on the state’s motion to dismiss the case.

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