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Date Posted: 20:10:52 03/07/07 Wed
Author: Don Johnson
Subject: Alaska limited entry for guided anglers?

John,

Read your letter, I agree with everything you said but unfortunately the nonguided angler has a different
prospective on the whole "limited entry for guided anglers only" thing.
The nonguided anglers prospective is pretty basic.
They go to their favorite fishing hole and there is a guide boat catching fish after fish, day after day.
While they catch little to nothing, day after day.
They go to their favorite backup fishing hole and there is a guide boat catching fish after fish, day after day.
While they catch little to nothing, day after day.
They go to the hole that nobody knows about and there is a guide boat catching fish after fish, day after day.
While they catch little to nothing, day after day.
They can only imagine a single solution, and that is the removal or at least the reduction of the guide boats.
That is when you begin to hear words like "moratorium or limited entry" attached to "only" guided anglers.

I understand the context of your letter is to say that it doesn't make any sense to limit entry and
then end up with an inferior product or service. Unfortunately the proponents of a sport fish
limited entry system for Alaska, do not care if the concept makes and sense, they just want
their fishing competition to go away. They do not care what vehicle is used to make it go away,
only that it goes away.

-------------------------------------------------------------------------------------------

Your below letter addresses the State of Alaska applying "limited entry" to it's resident who happen
to be common fisheries users by Alaska law. I claim that this "suggestion" is the same as suggesting
that the State of Alaska generate and approve an amendment to its current State Constitution.
I have listed below the reasons I make this claim.
.
Alaska's State Constitution only allows "commercial fisheries" to be legally protected by its
current Limited Entry Law. By legal definition, sport fish charter operator's are NOT part of a
commercial fishery.
Because these operator's are NOT commercial fishermen, you are legally required to acquire a specific
Alaskan Constitutional Amendment to allow a moratorium or limited entry system to legally function
as a restrictor of these common users.
As Alaska law now stands, charter vessel operators acting as guides for sport fishers, are involved in the
sport taking of fish, not in the commercial taking of fish. Therefore, the provisions of AS 16.43.140
in specific, and the Limited Entry Act in general, are not implicated. Any Moratorium, Restricted Entry,
Exclusive Guide Area, EGA or any other kind of unequal treatment of Alaska trust common users will
also be found to be unconstitutional. It does not matter if it lasts for 10 minutes or 10 years.
The unequal treatment of "similarly situated, Alaskan common users" will not withstand Alaska judicial scrutiny.

This "sport fish limited entry suggestion" lacks the same legal foundations which took Alaska down the path
of creating Exclusive Hunting Guide Areas back in 1980. This same "sport fish limited entry dream" seems to
take root every couple of years until someone reads the Alaska Constitution to those involved and
then they go away for another couple of years.

This sport fish limited entry issue heads in the same path chosen by
(Attorney General Avrum M. Gross and Assistant Attorney General, G. Thomas Koester) back in 1980.
Apparently back then, Representative Rick Halford requested a formal response to the
Constitutional legal status of Exclusive Hunting Guide Areas, EGA's.
The resulting 1980 AG "Koester" letter was a glowing response which openly declares the
"solid legal grounds" for Alaska to legally create EGA's. This was the "incorrect" legal advise
which was given to the Alaska's Legislature, which caused it to pursue its historic EGA folly,
which was later found to be unconstitutional.
It is insightful to read the strategic legal errors which were made by Koester back in 1980.
Koester's opinion was finally tested later in 1988 when hunting guide Ken Owsichek was denied
equal access to a "hunting guide, EGA license". Alaska wanted to force him to BUY into becoming
a hunting guide and he refused to purchase an EGA license from other guides, so he sued the State.
(The licenses were running around $300,000 and it ended up costing that much to take it to court.)
The Alaska Supreme Court found that the State refusal to issue Owsichek a open guiding permit,
was a denial of his common use equal access. Owsichek v. State, 763 P. 2d 488 [ Alaska 1988 ]

It appears that Koester made many legal miscalculations but chief among them was his
assumption that a Limited Entry Use context could be legally applied to a Common Use issue.
Koester's misuse of a Limited Entry context is a reoccurring theme within his opinions.
Alaska's Limited Entry Act was constructed outside normal Alaska common use law.
Alaska's Limited Entry Act was made legal by it's voters removing Alaska's common use protections
from "only" the commercial fishing industry.
This was accomplished by Alaskan voters within a constitutional amendment.
Section 15, Article VIII of the Alaska Constitution. No Exclusive Right of Fishery.
The amendment removed Alaska's commercial fishing industry "only" from it's common use of it's trust
fishery resources.
Being Constitutionally transformed into EXCLUSIVE USERS, the commercial fishing industry
was legally allowed to limit the total number of persons accessing "commercial fisheries".

Koester's apparent plain error was that he "did not see" that this "exclusive access / limited entry" right,
was only granted to the commercial fishing industry, and not to any other industry.
He apparently incorrectly calculated, that the limited entry context was the word "commercial" and
that since hunting guides were also "commercial", that limited entry protections applied. Koester did
not understand that the scope of the amendment applied strictly to "commercial fishermen" only and
no other common user.
Koester later discovered that the hunting guide industry is also a common user and is protected by
Alaska natural resource trust law. All Alaskan residents are guaranteed trust access to "only" its
fisheries, wildlife and waters. Koester apparently believed that Alaska common trust access could be
removed from any commercial use with the Limited Entry Act. The commercial fishing industry was
granted removal from common use within Alaska's Limited Entry Act and amendment, but no other
Alaskan industry was granted this trust common use removal.
This appears to be Koester main foundational legal error which resulted in his opinion being proved
incorrect eight years later in Alaska's State Supreme Court.

The Alaskan State Supreme Court ruled within Owsichek v. State, that Owsichek had to be
guaranteed commercial common use access to Alaska's surplus trust wildlife, just as sport fish guides
and anglers must also be guaranteed common fisheries access under Alaska's Constitutional Common Use Clause.
This Constitutional guarantee is clearly stated within the hunting case,
Owsichek v. State, 763 P. 2d 488 [Alaska 1988], but the same principles apply within
CWC Fisheries v. Bunker, 755 P.2d 1115, 1121 n, 4 [Alaska 1998]

Koester incorrectly claimed that neither commercial fishermen or commercial hunters were protected
under Alaska's common use trust law. Owsichek v. State proved that commercial hunters are protected
and that commercial fishermen are not.
This appears to be a plain lack of understanding of Alaska Constitutional law by Koester.

It is now sounding like we have generated a few more Koester's in the last few year who believe
they can make things up as they go along. I am very sure all the attorneys out there are licking
their legal chops with anticipation as to how many unnecessary hours of legal advice they can dish
out on this issue, this time around...


In conclusion: I agree with what you are saying but nonguided anglers do not care if "their solution" makes
any sense, to anyone. Making sense is not their point. They just want their guided fishing competition to be gone.
This is the same reason folks crank up their planes and fly for hundreds of miles to get away from the mobs.
The only real difference is that these "limited entry folks" are asking the general public to pay for their
trip rather than them paying for it themselves.
A typical example of trying to get your neighbor to pay for your vacation.

end.

-----------------------------------------------------------------------------------------------

SJR 10 - Limited Entry Fisheries
Shall section 15, article VIII of the Alaska Constitution be amended by adding a sentence to the present
section (underlined sentence to be added) which would read as follows: NO EXCLUSIVE RIGHT OF FISHERY.
No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.
This section does not restrict the power of the State to limit entry into any fishery for purposes of resource
conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood
and to promote the efficient development of aquaculture in the State.
Aug. 22 ,1972

Section 15, Article VIII of the Alaska Constitution. No Exclusive Right of Fishery
No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.
This section does not restrict the power of the State to limit entry into any fishery for purposes of resource
conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood
and to promote the efficient development of aquaculture in the State. [Amended 1972]

-------------------------------------------------------------------------------------------------------

AS 16.43.140. Permit Required. http://touchngo.com/lglcntr/akstats/Statutes/Title16/Chapter43/Section140.htm

(a) After January 1, 1974, a person may not operate gear in the commercial taking of fishery resources without a
valid entry permit or a valid interim-use permit issued by the commission.
(b) A permit is not required of a crewmember or other person assisting in the operation of a unit of gear engaged in
the commercial taking of fishery resources as long as the holder of the entry permit or the interim-use permit for
that particular unit of gear is at all times present and actively engaged in the operation of the gear.
(c) A person may hold more than one interim-use or entry permit issued or transferred under this chapter only

for the following purposes:


(1) fishing more than one type of gear;


(2) fishing in more than one administrative area;


(3) harvesting particular species for which separate interim-use or entry permits are issued;


(4) if authorized by regulations of the commission, fishing an entire unit of gear in a fishery in which the
commission has issued entry permits for less than a unit of gear under AS 16.43.270 (d); under this
paragraph, a person may not hold more than two entry permits for a fishery; however, the person may not


(A) fish more than one unit of gear in the fishery; or


(B) acquire a second entry permit for the fishery after the person has acquired an entry permit that
authorizes the use of an entire unit of gear in the fishery;
(5) consolidation of the fishing fleet for a salmon fishery; however, a person may hold not more than
two entry permits for a salmon fishery under this paragraph, but the person who holds two entry
permits for a salmon fishery may not engage in fishing under the second entry permit. http://touchngo.com/lglcntr/akstats/Statutes/Title16/Chapter43/Section140.htm

END


Don Johnson
Soldotna, Alaska
ccpwow@gci.net

---------------------------------------




I am totally opposed to any idea such as this. Please let me address your "reasons" for wanting
to meddle where you shouldn't be:
Re reason #1:Preserving the quality experience of the angler.
A limited entry program does exactly the opposite. As a guide under this proposal, once you are
in, you can become lazy and inefficient because there is no chance for competition. With no new
competition, there is no incentive to increase or preserve any quality of service.
Re: Increase customer (client) confidence in the industry. When I go on vacation and I choose to
do some activity, I evaluate the industry's health and choose a company that is succeeding in a
competitive marketplace. I have no confidence in an industry that is "stabilized" by the
government instead of the free marketplace. It makes me suspicious about the quality of the
experience I am about to pay for.
Re:Help to maintain conservation/ sustainability of the resource. There are ample methods of
maintaining a resource short of government-sponsored business controls. IF a fishery in in
danger, then it should be managed in such a way that all the public shares the pain of reduction
equally instead of reducing only those guided anglers.
Re: Stabilize the sport fish guide industry. What facts support the claim that the industry is
"unstable"? What criterion are used to make this a reason for proposing these controls? Why is
the government interested in "stability"? There have been numerous attempts to promote the idea
that fish guide industry is growing out of control but the facts prove that it is not. Over the last five
years the average number of sport fish licenses sold has been 498,738 and in 2006 there were
499,451. Where is the growth prompting this idea?
Re:Prevent economic distress and over capitalization among guides. Since when is it right for the
government to meddle in the free enterprise system? Competition means the strong survive. No
competition means the government is subsidizing the weak in favor of someone new who might
be a better operator but wouldn't be allowed to enter the system. It is simply absurd for the
government to be worried about the economics of an individual business.
Re:Limit effort on stocks already fully utilized. IF a stock is fully utilized, then every user of that
stock should share the brunt of the reduction equally. That means a management system that
reduces bag limits, size restrictions, time restriction, etc. should be used rather than placing the
bulk of the restrictions only on people who hire a guide. That is discrimination!
Re: Reduce allocation issues. This proposal will CREATE allocation issues. There will be a fight
over how much fish can be caught by a reduced guided fishery versus the private fisherman who
does own a boat and has no restrictions. How would you like to have to pay more for your chance
to catch a fish just because the government wanted to reduce the fish allocated to the guided
industry? There will be some very angry customers when they find out what they will have to pay
under a closed system. They will want a HIGHER allocation to reduce the cost of fishing.
This whole concept is bad, EXTREMELY bad. The same reason why the Secretary of Commerce
rejected the one fish halibut limit for guided anglers applies here. You are in effect trying to limit
the amount of fishing that can be done through guided means by using reasons that are twisted
to support your effort. IF there is a problem with a fishery then EVERY person who uses that
fishery should share in the remedial actions necessary.
John Baker
info@afishunt.com
Sent: Tuesday, March 06, 2007 2:52 PM
Subject: statewide limited guide entry proposal


Hi all
For those who are not aware, there is a proposal to institute a statewide guide limited entry program. I have gone to the site and submitted my comments, which as you might assume, are negative. If you are curious, I have attached a PDF file of my remarks.
Here is the reference which you all should take note of and make your own comments, whichever way you feel:
Subject: Sport fish guides Limited Entry



The Alaska Dept. of Fish and Game, Division of Sport Fish is evaluating the option of recommending the establishment of a sport fish guide limited entry program, and we would like to hear your comments.

The first step in this process would require that limited entry become part of the management "tool box" through legislative action. This is followed by the establishment of a Sport Fish Limited Entry commission or panel through which the details of a sport fish charter/guide "permit" would be outlined. Details and the criteria of a limited entry program may be managed by ADF&G, CFEC or a newly established Sport Fish Entry commission.

ADF&G has established a Limited Entry Task Force represented by both freshwater and saltwater guides from around the state. This group is tasked with working as liaisons between ADF&G and the industry. In an early December meeting, the task force agreed that ADF&G should have limited entry as a management tool and would further assist in drafting the legislative language that would be introduced to the legislature in 2007.

The link below provides an opportunity for guides to provide their opinions on this topic to the Task Force. This is particularly important for Interior guides to use this means of input as they are so widespread and varied in target species.

http://www.sf.adfg.state.ak.us/statewide/guides/GSpecIssues.cfm

Thanks.
Audra Brase

Fairbanks Area Management Biologist

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