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Denial of setnet initiative before court April 22

Posted: March 12, 2014 - 11:01am

Oral argument in the Alaska Fisheries Conservation Alliance appeal of Lt. Gov. Mead Treadwell’s decision to not certify a proposed ballot initiative to ban setnetting is scheduled for April 22 in Anchorage.

The alliance, or AFCA, wants to ask voters whether 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.

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 Jan. 22.

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.

But in AFCA’s complaint, the organization asserted that the initiative at issue in the Pullen case created a harvest preference for sport fishermen, while the AFCA initiative does not create a preference between types of fisheries.

The state attorneys denied that as well.

In addition to denying much of AFCA’s arguments in the appeal, the State cited several affirmative defenses. In its request for relief, the State asked the court to dismiss the lawsuit and have its costs and fees reimbursed.

The defenses the State listed included the argument that the State may have various types of immunity, that the timing of the case may not be appropriate, that the question may have been considered and handled elsewhere, and that the plaintiff may not have standing to bring the case forward.

The response came at the request of Judge Catherine Easter, who 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 were expected to file motions for summary judgment by March 7, 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.

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.

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.

Easter also agreed that briefs in the case could be 30 pages, but said any longer was not necessary because it is a fairly limited question of law.

That was at the request of Chief Assistant Attorney General Libby Bakalar, who called into the hearing from Juneau and said that the byzantine issues of elections law and fisheries law would take more than 20 pages, the usual limit, to explain.

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 is a reporter for the Alaska Journal of Commerce. She can be reached at molly.dischner@alaskajournal.com.

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