Fisherman attorney says resource use should cost accordingly in WDFW case

By Robert Lawson | Feb 19, 2017

OLYMPIA, Wash. — An attorney who represents fishermen on the West Coast agreed with a California court decision that could shake up a planned exemption by the Washington Department of Fish and Wildlife.

The Washington initiative by the WDFW would have raised fees for residents seeking commercial fishing licenses and lower them for non-residents. That was before the initiative was challenged by some out-of-state fishermen citing the Privileges and Immunities Clause and the Equal Protection Clause of the U.S. Constitution.

They challenged a ruling made last December by U.S. 9th District Court of Appeals, which determined that California’s nonresident-fee differential for several commercial-fishing permits, licenses and watercraft registrations was constitutional.

“What is surprising is that a state agency, WDFW, would propose such a blatant exemption,” said Pete Knutson, gillnetter and co-owner of Loki Fish Company, said in a report by the Ballard News Tribune. “WDFW needs to scrap their existing proposal and charge resource users fairly.”

Peter H. Flournoy, an attorney who regularly represents fishers on the West Coast, told the Northern California Record that these statements represent the reality and fairness commercial fishers should be dealing with in terms of fees and regulations.

"These two quotes from the Ballard article are right on," he said. "From what we have heard, Washington Fish and Wildlife had to go back to the drawing board for a number of reasons and are actually floating a new proposal, although I don’t know the particulars with regard to in-state and out of state fees."

The Ballard News Tribune report said WDFW was responding to the earlier California decision in crafting this policy. The new lawsuit is derailing the department's plans, but Flournoy said commercial fishers should be happy with the challenge.

"I can’t speak for Washington fishermen, or Oregon fishermen, but they should generally be pleased, depending upon where they fish on the West Coast," he said.

Flournoy also said legislative issues arise from funding, and commercial fishers should be aware of this.

"I don’t know what the history has been on the West Coast for charging out-of-state people higher fees, but as you know from reading the case, the Supreme Court had never specifically found this to be okay, although they had certainly laid the ground work for the 9th Circuit decision," Flournoy said. "When I read the decision, I thought the biggest concern for California fishermen was the documentation of the $20 million shortfall claimed by [California Department of Fish and Wildlife] over the expense of 'managing' California commercial fishing and the income the state derived from the fishermen."

Flournoy said many questions remain in California over the shortfall issue.

"This turned out to be the case since the governor in his most recent budget has suggested increasing landing fees to cover about one half of this shortfall," Flournoy said. "What should be questioned carefully is how the [California Department of Fish and Wildlife] got to this figure. Does it include funding the Fish and Game Commission, which handles many non-fishing issues such as hunting licenses and areas, and endangered species? Does it include the Ocean Protection Council which has been captured by environmental groups and does much to inhibit commercial fishing?

“Does it include the development of marine protected areas, which have put many fishermen out of business? Does it include the insane amount of time that is spent setting up limited entry fisheries, which also often don’t benefit fishermen? My assumption is that this is all now public record, although I haven’t had the opportunity to examine the pleadings, declarations, etc."

According to the Ballard News Tribune report, fishers are concerned about fees and fairness associated with them. Some types of commercial fishing uses more resources and residency has little to do with that. For example, purse seiners use approximately five times the public resources than gilnetters and reef netters. Some fishers prefer the Alaskan fee model and regulations that consider these resource use cases.

The WDFW has announced it will consider drafting new policy after this recent California case development.

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