The Oregon Attorney General's office is now weighing the legality of a ballot initiative proposal that would outlaw the use of gillnets in Oregon waters -- notably the Columbia River -- by non-Indian commercial fishermen.

The initiative proponents say the mortality associated with the commercial gillnet harvest is having a significant negative impact salmon and steelhead stocks that are listed under the Endangered Species Act.

The proposal aims to change state law to ban non-tribal gillnet fishing on the lower Columbia and use fishing license surcharges to help transition the gillnet fleet to more "selective" alternative gear. The surcharges are now used for fish restoration and enhancement projects.

The commercial fishermen say the proposed ban would cut off the salmon pipeline to the non-fishing public, sour local economies and rob the much needed restoration fund.

The chief initiative petitioners are state Sens. Fred Girod, R-Stayton, and Rod Monroe, D-Portland, and David Schamp, chairman of the Coastal Conservation Association's Oregon chapter board of directors.

"Banning the use of gillnets and tangle nets and using selective gear that allows for the release of wild fish is an effective, achievable way to create a sustainable commercial and recreational fishery for the citizens of Oregon," Schamp said. "It provides a greater return on the investment that taxpayers have contributed to salmon recovery, and is consistent with Oregon's commitment to the responsible and sustainable use of the state's natural resources."

Selective fisheries hold sway now in the springtime when the vast majority of the returning spring chinook salmon are of hatchery origin and are identifiable because, for the most part, they are missing their adipose fin. The fins are clipped before the fish are released from hatcheries.

Anglers who catch an unclipped spring chinook or steelhead must release the fish back into the Columbia unharmed. Fisheries managers say that post-release mortality is about 10 percent for fish caught with hook and line. It is estimated that 14.7 percent of the spring chinook and 18.5 percent of the steelhead caught and released from small-mesh tangle nets die, while the estimates are 40 percent and 30 percent respectively for fish caught in larger mesh gillnets.

The Oregon Attorney General's Office has until Feb. 9 to issue a "certified" ballot title and respond to comments received regarding its "draft ballot title" for the proposal spearheaded by CCA Oregon. It is one of 17 state CCA chapters.

CCA is non-profit organization with support drawn from thousands of recreational saltwater anglers. Its aim is the conservation and restoration of coastal marine resources.

The public comments were directed to the Office of the Secretary of State and processed by its Elections Division. Oregon law requires that the Secretary of State to field comments on whether a draft ballot title is within legal standards and whether the proposed initiative complies with procedural constitutional requires for submission of petitions.

A total of 119 pages of comments were received from commercial fishermen and fish buying and processing representatives, tribal entities and supporters of the proposal. The deadline for filing comments was Monday.

After a "certified" ballot title is issued by the Attorney General's Office, anyone who submitted comments and remains dissatisfied can present its legal arguments to the Oregon Supreme Court and ask for a different title. Petitions to the court must be filed within 10 days after the final ballot title is issued.

The court is required by state law to "act expeditiously" when it receives such a petition. In the past the court response has come anywhere from 6-8 weeks to 6 months after it receives the petition, according to Elections Division officials.

Once the process is completed, including the disposition of any petitions to the court, CCA Oregon could begin collecting the 82,769 voter signatures necessary to get the initiative on the Nov. 2 general election ballot. Those signatures must be delivered to the Elections Division by July 2.

"We feel very comfortable about getting the signatures we need," Bryan Irwin, executive director of the CCA's Oregon and Washington chapters, said. The chapters, established in the spring of 2007, have a combined membership of about 9,500.

A total of 5,000 signatures were collected (at least 2,000 were needed) to qualify the proposal for ballot title consideration.

The draft ballot title is, "Bans Oregon salmon fishing with gillnets; redirects license surcharges to fund changing to alternative methods"

The brief document explains that a "yes" vote "bans commercial salmon/sturgeon fishing with gillnets in Oregon; creates commission, redirects fishing license surcharges to fund gillnet users' transition to alternative methods." All of the non-tribal commercial gillnetting that now takes place in Oregon is in the lower 146 miles of the Columbia River.

The document says a "no" vote "retains laws allowing commercial salmon/sturgeon fishing with gillnets in Oregon; continues using fishing license surcharges to fund fish restoration and enhancement purposes."

The proposal would not affect tribal fishing rights, the draft ballot title summary says.

"Measure's effect on Columbia River Compact and fishing management agreements between federal government, Native American tribes, and states is unclear," the summary says.

The initiative effort was focused on Oregon because both the Washington Legislature and Fish and Wildlife Commission seem on a path toward reducing or ending mainstem Columbia gillnetting while Oregon is not, Irwin said. Three proposed bills aimed at reducing commercial impacts on listed stocks died in the most recent Oregon Legislature.

And, the Columbia River shipping channel that marks a part of the border between the two states "runs pretty close to the Washington side in the lower river. Most of the gillnetting takes place in Oregon waters," Irwin said.

The states co-manage fisheries on the Columbia River where it represents the southern border of Washington and northern border of Oregon. The Columbia River Compact was established by Washington and Oregon in 1915 to manage commercial fisheries on the mainstem from the river mouth up to McNary Dam 292 river miles upstream. It was created to resolve problems resulting when each state set its own fishing seasons on the Columbia. Congress approved the Compact in 1918.

An Oregon gillnet ban "would have a pretty dramatic impact on the Compact process," according the Washington Department of Fish and Wildlife's Bill Tweit, who often serves as the WDFW director's representative on the Compact. The non-tribal gillnetting seasons take place from Bonneville Dam down to the river mouth while treaty tribes fish commercially and for ceremonial and subsistence purposes in the reservoirs between Bonneville and McNary.

If the proposed Oregon gillnet proposal makes the ballot and is approved by voters, Tweit said WDFW officials would have to consult the state Attorney General's Office and Washington Fish and Wildlife Commission "to decide how we would respond."

Comments submitted by Paul Lumley, Columbia River Inter-Tribal Fish Commission executive director, said the draft ballot title and accompanying language fail to make it clear that the state cannot ban gillnet fishing carried out under tribal treaty rights. CRITFC represents the Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm springs Reservation of Oregon and the Yakama Nation.

"By failing to state this fact, the measure's caption thus overstates its impact and may impair the sale of treaty-caught salmon as a result," according to the comments authorized by the four tribes. The comments also say the title does not properly explain the proposed shift in license surcharge spending.

"By failing to reference the fact that the current use of license surcharges supports restoration and enhancement of fish habitat that, at times, takes place in cooperation with tribal fish habitat restoration efforts, the caption does not indicate that redirection of funds would divert funds from the production of fish to harvesting methods."

The CRITFC comments also said approval of the gillnet ban could indirectly, and negatively, impact tribal fishing rights by affecting fishery implementation guided by the Compact and the U.S. v Oregon management agreement.

"Thus tribal fishing rights may be affected even while treaty fishing rights are maintained," Lumley's comments say. The tribes suggested the following sentence be added to the ballot title summary.

"Measure states it does not affect treaty fishing rights, but is unclear if implementation will affect fishing season and management agreements between states and tribes under federal court cases. Further litigation may result."

"We want it to be clear so they know what they are actually voting on," Mike Matylewich, manager of CRITFC's Fishery Management Department. The comments note that the law requires that a title "reasonably identifies subject matter" and that the explanatory materials a "simple and understandable" statements.

Steve Fick and others submitting comments say the draft ballot title is misleading, and thus unlawful, because laws in Oregon, and Washington as well, specifically prohibit the use of anything but gillnets for commercial fishing in the Columbia. Alternative gear, such as seines and traps, have long been outlawed. Fick owns a small fish processing business and is a commercial fisherman.

Those laws, and others, would have to be changed before any gillnet ban initiative is considered by voters, gillnetters say. That includes insuring that the funding will be available for the proposal's Gill Net Investment Recovery Fund, the supposed source of money to help transition gillnet permit holders to alternative gear. Hobart Ktyr's comments say the funding source cited in the proposal is earmarked by law for "recreational fishing activities."

"The Gill Net Investment Recovery Fund and the Commission set up to oversee it are a ruse to make the unwary voter believe gillnet permit holders will be compensated for transitioning to other legal gear, and other legal permits, of which there are neither," said Kytr, administrator for Salmon for All, a trade association made up of commercial fishermen and fish processors.

The draft ballot title fails to address the full scope of the proposed initiative, particularly its many uncertainties, according to Peter Roscoe, an Astoria, Ore., restaurant owner and member of the City Council there.

"Although the proposed initiative promises change, it assures nothing," Roscoe said. "Therefore, if enacted, a majority of the population of the state of Oregon could and would be restricted from utilization of one of their resources, i.e. salmon and sturgeon caught by commercial fishermen and delivered to either a restaurant or other retail outlet. This net effect in not clearly outlined in the proposed initiative."

More information can be found at line at: www.sos.state.or.us/elections

Under the Elections tab, open the Initiative, Referendum and Referral Log page. On that page do a search in 2010 for a key word such as gillnets.