New group defends Treadwell in setnet ban initiative case

  • By MOLLY DISCHNER Morris News Service-Alaska
  • Thursday, March 6, 2014 9:25pm
  • News

ANCHORAGE — A new commercial fisheries group filed an amicus brief Thursday in the lawsuit regarding the initiative to ban Cook Inlet setnetters.

The Alaska Fisheries Conservation Alliance, or AFCA, wants to ask voters to ban setnets in urban parts of the state. If the initiative made it on to the ballot and passed, it would eliminate setnetters in Cook Inlet.

Lt. Gov. Mead Treadwell denied the initiative petition in January based on a Department of Law opinion that found it was a prohibited appropriation of state resources.

AFCA, however, has said that the effort is conservation-focused, and filed an appeal of Treadwell’s decision in Alaska Superior Court in Anchorage Jan. 22. AFCA, which is comprised largely of sport interests, formed in 2013. The initiative is its first major action.

Now, another new group wants to weigh in.

Resources for All Alaskans, or RFAA, filed an amicus brief yesterday supporting the State of Alaska’s decision that the setnet ban initiative should not appear on the August 2016 ballot.

Motions for summary judgment by state attorneys and AFCA are due today, with oral argument scheduled for April 22 in Anchorage.

RFAA registered as a state nonprofit corporation named Salmon for All Alaskans in December according to state records, and changed its name to Resources for All Alaskans in late February.

RFAA President Jim Butler said the group’s federal nonprofit status is pending.

RFAA filed its brief to add another perspective to the case, Butler said.

“There was an interest in making sure that the voice of the industry affected was heard on this important issue,” Butler said.

The organization’s filing was two parts: a motion asking to be allowed to submit the amicus brief, and the brief itself, which argues that Treadwell’s decision not to certify the initiative was generally correct, and also that the initiative could be considered a prohibited attempt to enact local or special legislation by ballot initiative.

RFAA is registered in Kenai, but has a statewide focus. Board members include Kodiak setnetter and North Pacific Fishery Management Council member Duncan Fields, United Fishermen of Alaska President and Cordova District Fishermen United President Jerry McCune and Trident Seafood Executive Vice President John Garner.

Snug Harbor Seafood co-owner Paul Dale and former Lt. Gov. Loren Lehman, a Cook Inlet setnetter, are listed as members of the group’s advisory council. Dale was also listed as president when the group was founded.

Butler said that in this case, the group is concerned about the implications of allowing allocation decisions to be made by ballot initiative.

The AFCA appeal argued that the initiative would not establish preferences among user groups and “retains for the legislature and the Board of Fisheries full discretion as to how to allocate fish resources among competing users.”

The State denied that in its response filed Feb. 27. The State is representing Treadwell, who as lieutenant governor controls the Division of Elections and is responsible for approving or denying ballot initiative petitions.

Treadwell’s decision was based on a state Department of Law opinion that referenced a 1996 Alaska Supreme Court decision, Pullen vs. Ulmer, that maintained that salmon are assets that cannot be appropriated by initiative, and that preferential treatment of certain fisheries may constitute a prohibited appropriation.

RFAA supports that position.

“Allocating resources by initiative is not only unconstitutional, but it is also bad public policy,” said RFAA president Jim Butler in a formal statement. “The proposal to ban set netters is particularly destructive because it doesn’t address the real reasons for declining king salmon populations and would instantly destroy 500 small Alaska family businesses and hundreds of other jobs.”

Judge Catherine Easter met with attorneys for the alliance and Treadwell on Feb. 26 to schedule oral argument and discuss other issues that could arise. At that time, she also asked the state to file a response to the original complaint.

Both sides are expected to file motions for summary judgment by today, with opposition briefs due March 21. If reply briefs are needed, those will be due April 2.

The April 22 hearing is scheduled for 3:30 p.m., and expected to take an hour.

The two sides agreed that there likely will not be a dispute over facts in the case or any need for discovery, which are conditions needed to reach the summary judgment stage.

If there is a dispute over facts, however, Easter said the schedule may need to be changed to accommodate an evidentiary hearing, which could make it difficult to proceed on AFCA’s requested timeline.

AFCA lawyer Robert Misulich said the proposed timeline would meet AFCA’s desire to have the case heard at the state Superior and Supreme courts this year, so that the alliance could still collect signatures in 2015 and get the ban on the ballot in 2016.

It’s likely a final decision will come from the Alaska Supreme Court, as either the state or the AFCA can appeal the Superior Court’s decision to that body.

In a statement, AFCA Executive Director Clark Penney said the organization was glad about the pace at which the case is moving.

“We are in this process for the long haul because it is about protecting fish stocks in all of urban Alaska,” Penney said. “We appreciate the Superior Court’s prompt actions, and we look forward to getting this issue into the hands of the voters.”

Molly Dischner can be reached at molly.dischner@alaskajournal.com.

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