State hopes court will dismiss lawsuit affecting fisheries commission reorganization

An attempt by the state of Alaska to dismiss a lawsuit against itself and Gov. Bill Walker is scheduled to have its day in court Tuesday.

The outcome could affect a state agency that’s been under fire the past few years.

When Walker put out an administrative order in February that would transfer many functions of the Commercial Fisheries Entry Commission into the Alaska Department of Fish and Game, Jerry McCune was not happy. McCune is a commercial fisherman, and board president and lobbyist for United Fisherman of Alaska — one of the plaintiffs in the lawsuit.

“We feel like by splitting up and having two agencies, we’re not going to have a voice as strong as CFEC to look out for us, and they’ve done a really good job over the years,” he said during a phone interview Wednesday.

CFEC was established in 1973 by the Alaska Legislature to limit how many people can participate in the state’s commercial fisheries. It decides what fisheries to limit, who participates in them and adjudicates appeal cases. 

CFEC is an autonomous, regulatory and quasi-judicial state agency, and its three commissioners are governor-appointed and confirmed by the Legislature. CFEC commissioner Bruce Twomley, one of two current commissioners, has held that position since 1982.

McCune called ADFG too “political” to handle any functions of the CFEC.

“Who knows who the next commissioner is going to be? Who knows who the next governor is going to be? Who knows if any of that staff is going to be there? That’s pretty inconsistent about what’s going to happen with all that, and I don’t think they can do any better job than is being done by CFEC right now,” he said.

Because ADFG manages different kinds of fisheries, including sport, personal use, subsistence and commercial, McCune is also worried about a conflict of interest if the administrative order goes through.

McCune said the UFA board voted in April to join a lawsuit originally filed by fisherman and lobbyist Robert Thorstenson Jr. in March. UFA, a commercial fishing trade association, represents about 500 commercial fishermen, according to the complaint.

“CFEC makes a profit and pays for itself and that’s all on the backs of commercial fishermen, and they all say they want to keep it where it’s at,” McCune said.

 

Thorstenson & UFA vs. State of Alaska & Gov. Bill Walker 

Walker’s administrative 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 commissioner positions and legal staff. 

The agency has 17 full-time employees, including the two commissioners, and five part-time employees. The commissioners and its state legal counsel, Assistant Attorney General Kent Sullivan, declined to say how many of these employees would be affected by the transfer. They declined to comment on anything to do with the lawsuit.

The lawsuit filed in Superior Court claims the administrative order “unconstitutionally takes authority from the Alaska Legislature to amend statutes and policies related to the operation and management of the Commercial Fisheries Entry Commission.”

The complaint also asserts the administrative order transfers and reorganizes functions of CFEC that “serve the core purposes” and are “critical to the operations of the Commercial Fisheries Entry Commission as mandated by the Alaska Legislature.”

The plaintiffs want the court to invalidate the administrative order and not allow it to be implemented.

Original plaintiff Robert Thorstenson Jr. didn’t return calls for comment. The plaintiffs’ lawyer, former Juneau state lawmaker Bruce Weyhrauch, declined to answer any questions.

 

State: Case isn’t “ripe”

Attorneys for the state and Walker asked the court to dismiss the case in April and Juneau Superior Court Judge Louis Menendez is scheduled to hear oral arguments on that motion Tuesday.

The state’s motion to dismiss is based on “ripeness” and “standing,” said Assistant Attorney General Janell Hafner, one of the lawyers representing the state and Walker on the case.

Ripeness, she said, is about whether or not there’s a tangible dispute.

“Nothing has actually happened under the order yet. The order itself says, ‘I’m going to authorize the transfer of these administrative functions.’ To the extent that plaintiffs are now saying, ‘Well, that order might actually do more than that and might do more than what it says,’ there are no facts on the ground that would support that assertion, and that’s really based on conjecture, hypothesis and speculation,” Hafner said on the phone Wednesday.

Standing has to do with whether the plaintiffs are the right party to bring the complaint forward.

“The plaintiffs simply aren’t. They haven’t been injured by anything that the administrative order does. They haven’t shown that they’ve been harmed in any way and they haven’t shown that the administrative order, in fact, has done anything that would detrimentally affect their interest in any way,” Hafner said. 

During oral argument, each side has 30 minutes to present its case and the judge can take up to six months to decide, Hafner said.

 

Intense scrutiny

Walker touted the administrative order as an efficiency measure that would save the state more than $1.3 million a year, but CFEC has been the target of a lot of scrutiny in the past few years.

The order came in the midst of House Bill 112, sponsored by Rep. Louise Stutes, R-Kodiak. The bill’s original intent was to eliminate CFEC and its commissioners, and transfer its functions to ADFG and a division under the Department of Administration. It was similar to a bill Rep. Paul Seaton, R-Homer, put forward the previous session.

In early 2015, ADFG released a report on CFEC. The report questioned the efficiency and organizational structure of CFEC, and highlighted the lack of leadership and accountability in the agency. It laid out five alternative organizational structures and its associated cost savings.

Later that year, the Alaska Division of Legislative Audit put out another report on CFEC, which Seaton had originally requested.

The audit didn’t suggest eliminating CFEC, but it did recommend merging the administrative functions with ADFG. It also concluded that “its commissioners have not adequately managed CFEC’s daily operations” and “the agency’s workload no longer justifies full-time commissioner positions.”

 

Status quo

Walker’s administrative order, signed Feb. 16, was supposed to take effect “immediately,” according to the order itself, but ADFG Deputy Commissioner Kevin Brooks said that wasn’t the case.

“We haven’t changed the status quo,” Brooks said on the phone Wednesday.

The functions and employees that were supposed to move to ADFG have remained under CFEC and its management. Brooks said that was originally due to scheduling reasons and not wanting to disrupt CFEC’s busy season, which tapers off around this time of year.

Then the lawsuit came along, and Brooks said continuing to not making any changes “was just the prudent thing to do.”

He predicts the lawsuit will be dismissed.

“Hopefully the judge is going to rule on that quickly, session will end and then we can refocus on the (administrative order) and try to make government more efficient,” Brooks said.

• Contact reporter Lisa Phu at 523-2246 or lisa.phu@juneauempire.com.

Related stories:

Governor sinks fisheries entry commission

Fishing groups voice opposition to CFEC reorganization

Legislative legal, CFEC question Walker’s administrative order

Walker signs order merging CFEC duties with ADFG

Bill to eliminate CFEC moves out of Fisheries Committee

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