{"id":7794,"date":"2016-07-21T02:42:16","date_gmt":"2016-07-21T09:42:16","guid":{"rendered":"http:\/\/spijue.wpengine.com\/news\/court-hears-oral-argument-on-states-request-to-dismiss-lawsuit\/"},"modified":"2016-07-21T02:42:16","modified_gmt":"2016-07-21T09:42:16","slug":"court-hears-oral-argument-on-states-request-to-dismiss-lawsuit","status":"publish","type":"post","link":"https:\/\/www.juneauempire.com\/news\/court-hears-oral-argument-on-states-request-to-dismiss-lawsuit\/","title":{"rendered":"Court hears oral argument on state’s request to dismiss lawsuit"},"content":{"rendered":"

Commercial fisherman Robert Thorstenson, Jr. is precisely the right person to bring a lawsuit<\/a> against the governor and the State of Alaska, according to his lawyer during oral argument in Juneau Superior Court Tuesday.<\/p>\n

\u201cThis is the livelihoods of fishermen that are deeply involved in the system,\u201d attorney Bruce Weyhrauch said in court.<\/p>\n

Thorstenson, the original plaintiff \u2014 United Fishermen of Alaska<\/a> later joined the suit as plaintiffs in April \u2014 was not present Tuesday, but he said last week by phone that Gov. Bill Walker\u2019s Administrative Order 279<\/a> was the \u201cone major hiccup\u201d for an administration that\u2019s done an \u201cexceptional job with commercial fisheries.\u201d<\/p>\n

[Governor sinks fisheries entry commission<\/a>]&nbsp;<\/span><\/p>\n

\u201cThe Walker administration has been fish friendly, commercial fish friendly, great on the Board of Fish, great on appointments, great on everything,\u201d Thorstenson, also a commercial fisheries lobbyist, said. \u201cWe love this administration. I love this administration. I think the governor is doing a tremendous job with his fisheries team, with this one exception.\u201d<\/p>\n

The administrative order, issued in February, would transfer many functions of the Commercial Fisheries Entry Commission into 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\u2019s commercial fisheries.<\/p>\n

Walker\u2019s 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 two current commissioner positions and legal staff.<\/p>\n

The lawsuit claims the administrative order \u201cunconstitutionally takes authority from the Alaska Legislature\u201d to change statutes and policies related to CFEC, and transfers functions of CFEC that \u201cserve the core purposes\u201d and are \u201ccritical\u201d to the operations of CFEC.<\/p>\n

\u201cI don\u2019t understand it. I don\u2019t think it makes sense,\u201d Thorstenson said. \u201cI\u2019ve interviewed about a thousand permit holders \u2014 there\u2019s about 11,000 of us \u2014 and out of the thousand, not one agrees with (the administrative order). All 1,000 disagree with it.\u201d<\/p>\n

Attorneys for Walker and the state asked the court to dismiss the case<\/a> in April. Oral arguments on that motion took place Tuesday.<\/p>\n

[State hopes court will dismiss lawsuit affecting fisheries commission reorganization<\/a>]&nbsp;<\/span><\/p>\n

Despite Thorstenson\u2019s ties to commercial fishing, state attorney Janell Hafner said he and UFA lack standing to bring the lawsuit forward.<\/p>\n

Based on the lawsuit\u2019s claim that the governor\u2019s administrative order usurps the Alaska Legislature\u2019s authority, Hafner said the Legislature has better standing to sue.<\/p>\n

\u201cClearly the Alaska Legislature is more affected by and certainly more attuned to an order that would ostensibly take legislative power away from it in the manner that the plaintiff\u2019s complaint suggests,\u201d she said.<\/p>\n

The state also argued that the plaintiffs failed to show they have or will be harmed. In pleadings to the state\u2019s motion to dismiss, Hafner said the plaintiffs referenced two types of harm \u2014 CFEC\u2019s loss of autonomy and the potential for that loss of autonomy to cause higher fees.<\/p>\n

\u201cPlaintiffs\u2019 fears of a future harm that might befall them at a future date are untethered to the order\u2019s text, they are unmoored from its implementation and they are based on hypothetical events that might never unfold,\u201d Hafner said.<\/p>\n

She said the court should not rule on \u201chypothetical\u201d issues. Instead it should dismiss the case and allow the facts an opportunity to develop.<\/p>\n

Weyhrauch said the plaintiffs, who are commercial fishermen, have established standing to sue. Not only do they pay the fees that allow the agency to run, they\u2019ve relied on CFEC to be devoid of conflict, fair and impartial.<\/p>\n

\u201cThe discretionary functions on transfers, hearings, adjudications, permits, data management can\u2019t be simply picked up and moved to an agency that has no familiarity with those,\u201d he said.<\/p>\n

Instead of dismissing the case, Weyhrauch argued for the court to allow the parties to present their facts.<\/p>\n

\u201cThere is no prejudice to the state to litigate this case and these facts right now rather than face another challenge and then another motion to dismiss and then further continue judicial resources, because that\u2019s what will happen. This is of supreme importance to these plaintiffs and that\u2019s why they\u2019re here,\u201d Weyhrauch said.<\/p>\n

The judge on the case, Superior Court Judge Louis Menendez, said during oral argument that he\u2019s familiar with commercial fishing and CFEC. He\u2019s spent time as a private lawyer and as a district attorney in Dillingham and the Bristol Bay area, and his father was a commercial fisherman.<\/p>\n

Menendez has up to six months to issue a decision on the state\u2019s motion to dismiss the case.<\/p>\n

\u2022 Contact reporter Lisa Phu at 523-2246 or lisa.phu@juneauempire.com.<\/p>\n

&nbsp;<\/p>\n

Related stories:<\/strong><\/p>\n

Fishing groups voice opposition to CFEC reorganization<\/a><\/p>\n

Legislative legal, CFEC question Walker\u2019s administrative order<\/a><\/p>\n

Walker signs order merging CFEC duties with ADFG<\/a><\/p>\n

Bill to eliminate CFEC moves out of Fisheries Committee<\/a><\/p>\n

&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"

Commercial fisherman Robert Thorstenson, Jr. is precisely the right person to bring a lawsuit against the governor and the State of Alaska, according to his lawyer during oral argument in Juneau Superior Court Tuesday. \u201cThis is the livelihoods of fishermen that are deeply involved in the system,\u201d attorney Bruce Weyhrauch said in court. Thorstenson, the […]<\/p>\n","protected":false},"author":107,"featured_media":7795,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_stopmodifiedupdate":false,"_modified_date":"","wds_primary_category":4,"footnotes":""},"categories":[4],"tags":[75],"yst_prominent_words":[],"class_list":["post-7794","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-local-news"],"_links":{"self":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/posts\/7794","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/users\/107"}],"replies":[{"embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/comments?post=7794"}],"version-history":[{"count":0,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/posts\/7794\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/media\/7795"}],"wp:attachment":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/media?parent=7794"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/categories?post=7794"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/tags?post=7794"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/yst_prominent_words?post=7794"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}