A decision made in a California court case may change the trajectory of a Washington Department of Fish and Wildlife initiative that would raise fees for resident commercial fishers and lower the fees for non-residents.
Last December the U.S. 9th District Court of Appeals determined that California’s nonresident fee differential for numerous commercial fishing permits, licenses and vessel registration was constitutional.
A group of out of state fishers challenged California differentiating between resident and non-resident fishers under the Privileges and Immunities Clause and the Equal Protection Clause of the U.S. Constitution.
So what does the decision mean in Washington State? Well, the California lawsuit was the premise for the WDFW Wild Future initiative, which would essentially not differentiate fees for resident and non-resident commercial fishers, something the WDFW has called “equalizing the fees.”
Currently, Puget Sound gillnetting licenses renewal fees for salmon currently costs $585 for residential commercial fishers and $890 for non-residents. The proposed change would make the fee $750 for residents and non-residents alike. Moreover, a purse seine license renewal fee for residents is currently $735, non-residents pay $1190. The fees would be “equalized” at $750.
The reason for these changes?
“We decided to propose aligning resident and non-resident fees after recent court decisions – such as a ruling last year in California – found it discriminatory to charge non-resident and resident commercial fishers different license fees. … With this legal precedent in mind, we proposed aligning the fees for most of our commercial licenses to avoid costly litigation, which, in turn, could greatly disrupt some of the services the department provides to all license holders in the state,” wrote Darren Friedel of the WDFW to the Ballad News-Tribune. “
Now with the U.S. 9th district court upholding California’s law, some commercial fishers are wondering what comes next and why the WDFW considered it in the first place.
“The recent Federal decision affirming that states have a justifiable right to charge higher fees to non-residents is not a surprise. This has long been standard practice in other western states, including Alaska. 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.
“WDFW needs to scrap their existing proposal and charge resource users fairly. The principle should be simple: assess harvesters according to how much public resource they take, not by how much political clout they command.”
The WDFW initiative was moved to Governor Inslee’s desk at the end of last year for consideration in the 2016-19 State budget.
With news of the California ruling, the WDFW has said they are considering changes.
“The goal of aligning the fees was based on potential legal risk, following the 2015 court decision over California’s commercial fee structure. Our staff is working with the Attorney General’s office to review the latest court decision and consider whether to propose different fees for residents and non-residents here in Washington State. We will follow up with our commercial industry partners once we have completed our analysis,” wrote Michelle Dunlap of WDFW.
“As for the process that led to the commercial fishing fee request, Department staff worked with the Attorney General’s office to develop the proposal to align resident and non-resident commercial license fees. The proposal is very much still in draft form and we are working with the commercial industry to refine it prior to the start of the legislative session.”
The Ballard News-Tribune has been following this issue for the last month and published two other stories examining other issues with the initiative. One being that gillnetters like Knutson believe that gillnetters, reef netters and other small businesses do not have representation in the nine-member WDFW Commission, a group appointed by Governor Inslee. Some fishers have gone so far as to accuse the commission of favoring purse seining, big corporate ventures. The idea is roused from the argument that the only commission member representing commercial fishers, Bob Kehoe, is also the Executive Director of the Purse Seine Vessel Owners Association, a group containing over 300 members that include banks, vessel owners and large seafood corporations.
From the PSVOA website: “Today, we represent membership interests along the West Coast and throughout Alaska.”
Purse seiners take about five times more of the public resource than gillnetters and reef netters. Knutson and other small business fishers would like Washington to model Alaska’s regulation design, where fees are based on what fishers take from the public pool.
As to the allegations of favoring out of state corporate interests and purse seiners, WDFW wrote:
“The Wild Future initiative was developed by the Washington Department of Fish and Wildlife (WDFW) staff. The initiative, including the fee proposals, has been revised and improved over the past 15 months with significant input from the public, including both recreational and commercial stakeholder groups.”
“WDFW staff provided briefings on the department-developed initiative to the Washington Fish and Wildlife Commission during public meetings. As it does each year, the Commission voted on WDFW’s legislative requests, which included the license fee proposals in the Wild Future initiative.”
According to WDFW, they held a listening and workshop period from September of 2015 to August of 2016 in locations all over the state, the closest to Seattle being Mill Creek. The fishing and food industry account for 15,000 jobs in the Seattle area alone, according to 2013 study by the Economic Development Council of Seattle and King County and the Workforce Development Council of Seattle-King County.
Other gillnetters have aligned wit Knutson. One man responded to a recent article covering this issue on the BNT website.
“I'm a gillnetter who direct markets my own catch locally to individuals in my community. This article is quite appropriate in stressing the unfairness of this license fee model. Alaska has a much more fair approach, and yes they do charge more for out of state license renewals, right down to the crew members licenses. The individuals who should be looking out for the best interest of Washington's small businesses and economy do not have what it takes to take a firm stand and make decisions that work-- they just roll over and do what they're told by corporations and special interest groups,” wrote Matt.
Bryan Monsaas of Everett commented in a recent article about commission representation and the initiative itself.
“Kehoe specifically represents purse seiners and not all of them are Washington State residents…so he has a conflict of interest being on the commission that oversees conservation efforts. I think the commission should be made up of more citizens at large or at least knowledgeable people that aren’t necessarily stakeholders,” said Monsaas.
“I don't’ honestly think it’s fair. I do think it should be based more on a percentage of resources taken as I believe in Alaska – larger operations pay a larger fee. … As an ex-purse seiner, sure I wouldn't mind paying less for a license renewal, but I don’t think it’s right. … They’re not going to be putting money into our state coffers unless we charge them.”
Look to the Ballard News-Tribune as this story develops.
