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Date Posted: 02:38:00 05/06/04 Thu
Author: Don Johnson
Subject: The Guided / Nonguided Issue " why ?"

The State of Alaska "believes" guided sport is a legal means and method.
I believe sport fish guides are not a legal means and method.
This is the issue and I believe the State will lose this one eventually.

I don't agree with the State because its belief is totally inconsistant with
the Alaska Constitution. Currently Alaska attempts to enforce a guided
means and method Use because it believes it gets its authority from Sec. 16.05.251.
Sec. 16.05.251 states that the Alaska Board of Fish can establish a
means and method of fishing as being anything, but that "anything"
must be consistent with Sec. 44.62.030. Sec. 44.62.030 states
that regulations must be consistent with statute.
Section 17 of the Alaska Constitution (Uniform Application) states
that "laws and regulations governing the use or disposal of natural resources
shall apply equally to all persons similarly situated with reference to the
subject matter and purpose to be served by the law or regulation".

Guided and nonguided anglers do everything the same and they use the same
tools while doing it so they appear to be similarly situated.
Since these anglers appear to be similarly situated it is not legally consistent to separate
them for fisheries restrictions. Sec. 44.62.030 requires the Alaska Board of Fish
means and method findings to be consistent with the Alaska Constitution
but the guided / nonguided finding is not consistent with Section 17 Uniform Application
and therefore does not comply with the mandate of Sec. 44.62.030.

Sec. 16.05.251. Regulations of the Board of Fisheries.
(a) The Board of Fisheries may adopt regulations it considers advisable in accordance
with AS 44.62 (Administrative Procedure Act) for:
(4) establishing the means and methods employed in the pursuit, capture, and transport of fish;
---------------------------------
Sec. 44.62.030. Consistency between regulation and statute.
If, by express or implied terms of a statute, a state agency has authority to adopt
regulations to implement, interpret, make specific or otherwise carry out the
provisions of the statute, a regulation adopted is not valid or effective unless
consistent with the statute and reasonably necessary to carry out the purpose
of the statute.
-----------------------------------
The Alaska Constitution
§ 3. Common Use
Wherever occurring in their natural state, fish, wildlife, and waters are
reserved to the people for common use.
--------------------------------
The Alaska Constitution
§ 17. Uniform Application
Laws and regulations governing the use or disposal of natural resources shall apply
equally to all persons similarly situated with reference to the subject matter and
purpose to be served by the law or regulation.
-------------------------------

I really believe that guided sport fish anglers are not management tool which are
available for government manipulation.
The trust fisheries rights which were conferred on common user were given so
that similarly situated fisheries users could fish in common with each other.
Creating similarly situated (sub classes) within the general sport fish class creates illegal
exclusive fishing rights. I claim that Sec. 16.05.251(e). attempts to grant nonguided
sport fish anglers these exclusive fishing rights over guided sport fish anglers.

-----------------------------------------
The Alaska Constitution
§ 15. 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]
--------------------------------------

I believe it is unconstitutional to create regulations designed to establish
exclusive fishing rights between similarly situated fisheries users.
Guided and nonguided anglers do everything the same therefore they
appear to be similarly situated and fully protected by the Alaskan Constitution.
For this reason I believe that Sec. 16.05.251(e). is unconstitutional.
I believe 251(e). attempts to curcumvent Article 8 Sec. 3. Common Use
and Sec.17. Uniform Application.
The Alaska Board of Fish may have the Sec. 16.05.251 authority to establish
a means and method but it must establish it within the framework of the
Alaska Uniform Application Clause.
I fully believe the Alaska legislature made a legal error placing
Sec. 16.05.251(e) into law therefore the Alaska Board of Fish lacks
the authority to define guided sport fishing as a separate Use.
Sec. 16.05.251 may give the Board the authority to establish but
not to establish something which is NOT consistent with Alaska's Uniform Application Clause.

I also believe that the State is incorrect on this issue and that Sec. 16.05.251(e)will not withstand a future court test.

If the State can reach into the sport fish Use and pull out "guided fishing" as a separate means and method, it can do just about anything. It may not be legal but the State may attempt it anyway.
The only thing which seems to stop the State from doing this sort of thing is to sue them.
The State does not seem to worry about being dragged into court and losing because it cost them nothing if they lose. They just do whatever they want and watch to see
what happens.
It is kind of like fishing a hole with a lot of known snags. You fish the hole anyway because you may lose some gear but then again you may also catch what you want.
The State knows it may lose the guided sport issue but it wants to restrict guided sport so bad that is willing to the risk of losing the case.

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