A Juneau Superior Court judge has sided with the state, dismissing a lawsuit that challenged Gov. Bill Walker’s administrative order to reorganize the Alaska Commercial Fisheries Commission, an autonomous state agency that’s been under fire the past few years.
“… the Court lacks subject matter jurisdiction over the matter. At this current time, any alleged conflict between the (administrative order) and the CFEC is purely hypothetical,” Judge Louis Menendez wrote in a decision Thursday and sent to attorneys representing the plaintiffs and the state Friday.
Administrative Order 279, issued in February, would transfer functions of the Commercial Fisheries Entry Commission to the Alaska Department of Fish and Game. CFEC was established in 1973 by the Alaska Legislature to limit how many people can participate in the state’s commercial fisheries.
Commercial fisherman and lobbyist Robert Thorstenson Jr. and commercial fishing trade organization United Fishermen of Alaska filed a lawsuit against Walker and the state calling the administrative order invalid.
The plaintiffs claimed the 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.”
In April, the state filed a motion for the court to dismiss the case, arguing that it didn’t present any real controversy and the plaintiffs failed to show a sufficient personal stake in the matter.
[State hopes court will dismiss lawsuit affecting fisheries commission reorganization]
The plaintiffs opposed the motion and, earleir this week, attorneys representing both sides presented oral arguments to Judge Menendez on the motion to dismiss.
[Court hears oral argument on state’s request to dismiss lawsuit]
Representing Thorstenson and UFA, attorney and former state lawmaker Bruce Weyhrauch argued that the administrative order would threaten the autonomy of CFEC by transferring discretionary functions to ADFG.
“The discretionary functions on transfers, hearings, adjudications, permits, data management can’t be simply picked up and moved to an agency that has no familiarity with those,” Weyhrauch said in court Tuesday.
But, as Menendez wrote in the decision, “… the plain language of (Administrative Order) 279 does not go nearly as far as Plaintiffs contend.”
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 Court has no way of knowing the effect of 279 at this point in time or if, whether, or how there will develop an actual controversy between the Plaintiffs and the Defendants caused by the implementation of 279,” the decision said.
“No actual controversy exists because the Plaintiffs have suffered no harm and cannot show they are likely to suffer substantial harm in the future,” Menendez continued.
Thorstenson, the original plaintiff in the lawsuit, said he hopes the governor will do “the right thing” and change his mind about the administrative order.
“It’s really up to the governor. If the governor wants to do something that’s unanimously opposed by commercial fishermen, that’s his call,” Thorstenson said by phone Friday afternoon as he was commercial fishing near Kake.
Besides the order, Thorstenson said he supports the governor and his administration’s dealings with fisheries matters.
Next steps
Weyhrauch said in court Tuesday the plaintiffs would continue to challenge the administrative order, but Thorstenson said he’s deferring to UFA for any future action on the case. UFA executive administrator Mark Vinsel said on Friday UFA wasn’t yet prepared to give a statement.
Gov. Walker was traveling on Friday and didn’t immediately have comments on the court’s decision, according to his communications director Grace Jang.
The state’s Department of Law, which argued the case, welcomed the court’s decision to dismiss the lawsuit against Administrative Order 297, Assistant Attorney General Cori Mills wrote in an email.
“The dismissal allows for further planning and discussions to determine what administrative functions, if any, should be transferred from CFEC to the Department of Fish & Game. Administrative Order 279 was issued to streamline the provision of services and improve efficiency — not to alter CFEC’s status or strip it of its statutory mission,” Mills wrote.
The order said duties would be transferred from CFEC to ADFG under the authority and discretion of ADFG’s commissioner.
“The Department of Fish & Game and CFEC, in consultation with Department of Law, will work together to determine what functions, if any, should be transferred, when that transfer should occur, and how it occurs,” Mills wrote.
Assistant Attorney General Kent Sullivan, representing CFEC commissioners Bruce Twomley and Ben Brown, declined to comment.
ADFG Deputy Commissioner Kevin Brooks received the court’s decision but hadn’t yet spoken with Commissioner Sam Cotten about it.
“I’m happy to see the outcome, but I don’t have anything to say about next steps,” he said on the phone Friday.
“There ought to be some dialogue, get folks talking about what can happen, how it might happen, but getting this lawsuit out of the way was a necessary first step,” Brooks said.
CFEC has been recently targeted for elimination by two bills in the Alaska Legislature. Two reports on the agency, which came out in 2015, questioned the organizational structure of CFEC and the necessity for full-time commissioner positions. The report by Division of Legislative Audit recommended merging the administrative functions with ADFG, which Walker’s administrative order would accomplish.
• Contact reporter Lisa Phu at 523-2246 or lisa.phu@juneauempire.com.
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Legislative legal, CFEC question Walker’s administrative order
