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Court Ruling Paves the Way for Set Net Ban Initiative

By Josh Staab, Digital Content Supervisor, jstaab@ktuu.com
Published On: Jul 24 2014 11:10:25 AM AKDT
ANCHORAGE -

An Alaska Superior Court judge has ruled that a proposed ballot initiative, which would ban set net fishing in urban areas of the state, can move forward in the petition process.

The ruling will allow the backers of 13PCAF to move forward in the process to get the initiative on the ballot in 2016. The initiative is proposed by the Alaska Fisheries Conservation Alliance, Inc. (AFCA).

A civil suit was filed by AFCA against the office of Lieutenant Governor Mead Treadwell, arguing the office “erred in declining to certify 13PCAF because it is a permissible regulatory measure, not an appropriation,” according to court documents. The alliance further alleges the initiative seeks to “regulate a method of take and does not allocate fish among competing users.”

Lt. Gov. Mead Treadwell denied the group's application in January, saying the proposal violated the Alaska Constitution.

The Alaska Department of Law posited, in a January review of the initiative, that the measure would appeal to the self-interests of an electoral majority and would “significantly reduce the Legislature’s and Board of Fisheries’ control of and discretion over allocation decisions.”

The decision came primarily upon answering whether the initiative would appropriate salmon, which the court concluded are an undisputed public asset. As part of its ruling, Judge Catherine Easter was asked to look at the logistics for completing two objectives: whether the initiative would prevent what Treadwell termed “give-away programs” that appeal to the self-interest of voters, and whether the initiative would endanger the state treasury’s ability to preserve “legislative discretion” by ensuring only the Legislature retains control over all state asset allocations, including natural resources like salmon.

In analyzing the first objective, the court ruled against Treadwell’s position that the initiative would present a giveaway program, stating the initiative would not target any particular public asset, but would rather seek to regulate what it defined as “one of many methods and means used to take salmon,” according to the ruling. Further, it reflected the judge’s belief that the initiative would create an “abundance for all users” rather than “bestowing an asset on a person or a group.”

As for preserving legislative discretion by leaving all allocation decisions to the Board of Fisheries, Easter had to consider whether the initiative “would set aside a certain specified amount of money or property for a specific purpose or object in such a manner that is executable, mandatory, and reasonably definite with no further legislative action,” according to her published decision.

Treadwell objected that the initiative would reduce the Legislature’s and Board of Fisheries' control over allocation decisions, especially when it applied to stock- or region-specific salmon shortages between competing user groups. According to Treadwell, the lack of discretion and control would have displaced any previous allocation decision and/or authority to make future allocations.

However, the court found the initiative would preserve the Board of Fisheries’ regulatory ability through the Legislature, “with ongoing authority to continue to control the allocation of salmon among competing users.”

“(The initiative) certainly does not set aside a certain specified amount of money or property for a specific purpose in such a manner that is executable, mandatory, and reasonably definite with no further legislative action,” Easter concluded. “(The initiative) eliminates set net gear and requires the Board of Fisheries action to allocate the potential abundance of salmon.”