Thursday, March 22, 2007

HB 188 and one Bay it TRIED to target

First of all, we see HB 188 collapsing around the ears of whoever wrote it. I won't speculate on the reasons it was written, you can read somebody's reasoning in one of these memos. It's just a little tragi-comic that someone would charge ahead so half-cocked. I'm just a little miffed that the author would presume to use unsubstantiated past intent as "proof."

This gillnet caught sockeye is being bled like they do in other meat processing industries. Unfortunately, very little of it is being done in Alaska fisheries. B.B. processors paid bonuses on production only last year, none on bleeding or chilling.

Those memos from the legal beagles in the Administration speak for themselves, so I'll just shift to a letter sent in from Erick Sabo, a man-with-a-plan type Bristol Bay fisherman:


I read your most recent posting on the Alaska Report this morning (March 21st) and am
compelled to respond to the letter quoted in the piece critical of the proposals for
permit stacking in Bristol Bay. For those unfamiliar with the issue of Bristol Bay
permit stacking proposals submitted to the board in December (of which I made one of
several similar proposals), it would basically allow a person to hold and fish two
permits with the advantage of being able to fish another 50 fathoms of net.

Also, I realize everyone is entitled to his or her opinion, but I wanted to offer
some comments because I think the writer’s understanding of the court’s rulings
in the Gunert cases is flawed. Also, let me say that I am all for reigning in the
broad authority, power,and deference the Alaskan legislature has given the Board
of Fish.

For example, I strongly disagree with an administrative body being given the
power to promulgate misdemeanor level criminal regulations in the fisheries(with
consequent fines of up to approx. $10,000.00 and up to a year in jail)when there is
no requirement of criminal intent, or even criminal negligence. But that is another
topic for another day.

In my humble opinion,I think the BOF is often simply a
political body (constantly working favors and deals to better one group over
another) and as we see in recent news on the national level, when a governmental
agency is used for such political gain faith in government pays the price.

I re-read both Gunert opinions while working out on the stair machine this morning
before sitting back down to write you this note to you. Below is an explanation of
why I think the writer’s extrapolation of the Gunert rulings to the Bristol Bay
permit stacking proposals is misplaced.

First, he relies too heavily on the “single fishery” and the premise that the BOF
cannot allocate between groups “within” a single fishery. A review of the first
opinion shows that the majority of the court ruled against the Co-op on two basis:
(1) the BOF doesn’t have the power to allocate within a single fishery, and
(2) the Co-op was fundamentally at odds with the Limited Entry Act, which requires
personal participation by the permit holder.

My first observation is that the bulk
of the opinion is devoted to the latter issue, and thus, it is the main thrust of
the opinion. I think anyone serious about relying solely on the first issue (the
“single fishery” allocation issue), must carefully consider the dissenting opinion
written by Justice Carpeneti. As Justice Carpeneti explains, the majority is taking
a very, very narrow interpretation of that statutory language.

Moreover, the majority admit that the legislature (and possibly the CFEC, by
changing the geographic and administrative area) could easily change their reasoning
and ruling on this issue particular issue. Heck, the majority’s narrow read of
this made me wonder why the BOF is empowered and constantly allocating fishing time
and certain percentages of catch between two groups (drifters and setnetters) in the
single fishery known as Bristol Bay?

In sum, the “single fishery” argument is very weak. Second, and more significantly,
the permit stacking proposals to the BOF for Bristol Bay are entirely different than
the Chignik Co-op regulation approved by the BOF and considered by the court in
Gunert.. A comparison of such would be comparing apples to pumpkins. The most
important difference is the fact that the Alaskan Legislature, in passing HB 251
last year, specifically granted BOF the authority to assign additional fishing
privileges to persons who hold two commercial fishing entry permits in the same
salmon fishery. (Most of the proposals followed the lead of the BOF in recent years
proposing to allow an extra 50 fathoms of net on the double permitted boat)

As alluded to above, this legislative act completely undermines any reliance on an
argument that allowing permit stacking would violate the “single fishery” allocation
argument. Also of significant difference is the fact that the stacking proposals
before the BOF would not eliminate personal participation. In fact, I would argue
that the current stacking regulation (allowing another 50 fathoms on a single boat
only if two permit holders are on the boat) has created a demand for emergency
medical transfers (being offered or purchased on agreements for approximately 10% of
the boat’s catch).

This is encouraging folks with permits to take advantage of the medical transfer
process and the opportunity to not go fishing while getting a share of the
money. This is exactly what the court criticized about the Co-op in Gunert. The
current proposals for stacking (allowing a single fisherman to hold and fish two
permits) would eliminate that niche.

Finally, the permit stacking proposals before the BOF serve the Limited Entry Acts
purpose of achieving an optimal number of participants in the fishery, albeit
without any buyback mess or taxes imposed on other fisherman or citizens. As you
know the State has determined that the optimal number of Bristol Bay drift
permits/participants is 1200, thus we need to eliminate approximately 600 permits or
the equivalent effort.

I agree with the writer, the BOF’s inaction and delay in addressing the proposals
for stacking (by deferring the proposals to the Restructuring Committee) is
frustrating. As one of the proposers, I was told a letter would come from the BOF
to explain the process of getting my proposal considered by this committee.

Despite the assurances, I haven’t received a letter from the Board explaining what
happened to my proposal or any information to guide me to determine whether I need to
complete a new, more detailed proposal on the Restructuring Committee’s form or
if I should assume they will take it up on their own.

I have not seen any progress or action taken by this standing committee, and I hate
to say it, but I don’t believe any meaningful action will be taken until the next
three-year cycle.

It is especially frustrating when I don’t understand why the BOF is unwilling to
consider these issues in a more expedient manner when they could result in an
immediate reduction of effort (more fish for everyone)and hopefully more fish for
the double permitted boats too. Everyone would happier with a little more
opportunity for production, maybe some more moneyto spend on equipment and services
and possibly upgrades to boats to produce better quality fish.

The ability to catch more fish and make more money with a double permit is
especially salient given the fact that the processors paid up to a 12 cent bonus
based solely on production. (I wish they had just given an even slice of the pie to
everyone, rather than in this manner)

Anyhow, maybe one of these days we can all afford to put that CSW circulation and
refrigeration system safely on the boat. On second thought, maybe it is better to
wait until 2010 to sink any real money into the boat, just in case the BOF lifts
the 32 foot limit, which would allow me to really do a number on the boat to make
it a quality fish, shallow hold, flush deck, limited custom processing machine? I
wish they would consider these issues sooner.

Well, you sure know how to get a guy to think about fishing first thing in the
morning. I hope this is helpful.