Out-of-state fishermen expected to receive $70 million refund

Attorney's request for legal fees referred to as 'borderline outrageous'

Posted: Wednesday, December 02, 2009

Out-of-state fishermen will be refunded nearly $70 million in state money for commercial fishing license fees the Alaska Supreme Court says were unconstitutionally high.

What's raising the ire of Attorney General Dan Sullivan however is that Juneau attorney Loren Domke, who represents the fishermen, is seeking legal fees of $21 million on top of the refunds.

The case, in which fisherman Donald Carlson and other nonresident fishermen sued the state is one of the longest active cases ever in Alaska, spanning half the state's history and having reached the state's highest court four times since it was originally filed in 1984.

Despite the lengthy time in court, Sullivan said Domke doesn't deserve to receive fees of $21 million.

Sullivan called the fee request "borderline outrageous," and said Domke spent only $250,000 on the case.

Domke said responsibility for the legal fees lies with the court, not him.

"It doesn't matter what the lawyers ask for, it's what the court orders," he said.

Domke noted that the case has been fought for 25 years without payment.

"It's been done on an assumption that at the end the court would award some attorney fees," Domke said.

The Alaska Department of Law, representing the Commercial Fisheries Entry Commission, is continuing to fight the case. It has hired an accountant to review Domke's request.

The out of state fishermen who brought the class action suit claimed that the state's fees were unfairly - and unconstitutionally - high. It is legal, the court said, to charge nonresidents more, because the state subsidizes some of the cost of managing the fishery with state resources.

But the court determined that in many cases the amounts charged to nonresidents were too high.

That meant that the state had to go through each individual fisherman holding a license and each individual fishery to calculate the amount they were overcharged, if any.

More than 11,000 license holders were reviewed by the state, which determined that while many paid less than the state could have legally charged for licenses, more than 4,000 overpaid and were due refunds amounting to $68,310,706.

While some amounts are relatively small, many are for thousands of dollars and one is for more than $162,000.

The state cautions that the calculations are preliminary, and has said it will not go back and attempt to collect undercharged fees.

Sullivan said that the bulk of the payment amounts stem not from the original overcharges, but from the interest collected during the long-running case.

"The interest on that judgment accrued, accrued and accrued," he said.

Domke said it is too soon to say when payments will be made, and there is still the possibility of a settlement.

• Contact reporter Pat Forgey at 523-2250 or by e-mail at patrick.forgey@juneauempire.com.

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