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Comments On Oregon Gill-Net Initiative Title Stress Constitutional Issues, Interstate Compact
Posted on Friday, August 12, 2011 (PST)

Commenters on both sides of the aisle called to question the Oregon Attorney General’s draft title and summary for a proposed ballot initiative that would ban the use of commercial gill nets on the mainstem Columbia River in favor of seines and “fixed” nets.

 

Commercial fishing interests say the draft title violates the state’s constitution and an interstate compact approved in 1918 by Congress, and that the concept is illegal and unworkable.

 

Proponents say the idea is legitimate, but the AG’s wording needs to be reworked.

 

In all, 154 pages of testimony, including appendices, regarding the proposal were filed this week.

 

The initiative was proposed late last month by the Coastal Conservation Association via a filing with the Oregon Secretary of State’s Election Division. The CCA is a non-profit organization that has 17 coastal state chapters whose membership is comprised primarily recreational saltwater anglers. Chief petitioners are state Sens. Fred Girod, R-Stayton, and Rod Monroe, D-Portland and David Schamp, chairman of the Oregon CCA chapter’s board of directors.

 

The proposed Protect Our Salmon Act of 2012 says that “the state still permits the use of commercial fishing nets that indiscriminately kill or injure large numbers of endangered wild salmon and other non-target fish and wildlife species.” The state’s freshwater commercial fisheries occur in the Columbia River and are implemented by the Oregon-Washington Columbia River Compact on the mainstem where it represents the two states’ border.

 

The Columbia and its tributaries are home to hatchery produced salmon and steelhead and salmon as well a naturally produced stocks that are listed under the Endangered Species Act.

 

The CCA says it plans to pursue options other than an initiative process in Washington, possibly working through that state’s Fish and Wildlife Commission, to gain a gill-net ban.

 

The state Attorney General’s Office reviewed the proposal and on July 26 issued a draft ballot title and its summary of the proposed initiative. Comments on the draft were then accepted for a period of 10 working days. With the comment period ended Tuesday, the AG’s office now has until Aug. 24 to produce a final ballot title and summary.

 

Once the final “complete” ballot title is in hand, the petitioners can start the collecting the 87,213 signatures needed to get the gill-net ban initiative on the Nov. 6, 2012, general election ballot. The signatures must be filed with the Oregon Elections Division by July 6, 2012.

 

The draft title for the prospective Nov. 6, 2012, ballot initiative reads, “Bans Columbia River commercial salmon fishing with gillnets by non-tribal persons, allows seine nets instead.”

 

According to Oregon law the draft title must include “a simple and understandable statement” that describes the result if the measure is approved and if it is rejected and a concise and impartial summary of the measure and its potential major effects.

 

A yes vote “bans non-tribal commercial salmon fishing with “gill nets” (defined) in Columbia River; allows salmon fishers who previously used gillnets to use “seine” (defined) nets.

 

A no vote “retains laws allowing commercial fishing for salmon with gill nets in Columbia River; retains laws prohibiting salmon fishing with seine nets in Columbia River.

 

“Summary: Current law allows Columbia River commercial salmon fishing with gillnets but not with seine nets or fixed fishing gear; allows issuing of new gillnet permits; allows appeal to Commercial Fishery Permit Board (board) if gillnet permit is denied; recognizes Oregon and Washington gillnet licenses as valid in Columbia River in both states.

 

“Measure bans Columbia River non-tribal salmon fishing with gillnets; allows non-tribal fishers who previously used gillnets to use seine nets; no new permits would be issued; Fish and Wildlife Commission may allow fixed fishing gear; disallows appeal to board if seine permit is denied; repeals Oregon/Washington gillnet license reciprocity.

 

“Measure does not affect tribal fishing rights; effect on fishing management agreements between federal government, Indian tribes, and states is unclear. Other provisions.”

 

The proposed initiative, draft ballot title, comments and other information can be found at:

http://www.sos.state.or.us/elections/pages/irr/index.html. Once of the web page hit the “search database” link and then and then “summary results.”

 

Commercial fisherman Cary Johnson says that the proposed initiative will have “two particularly significant effects: it would legalize methods of taking salmon from the Columbia River prohibited by the voters and it would constitute an action by the state of Oregon in violation of Oregon’s agreement under the interstate compact to make, change or alter regulations of fishing in the Columbia River only in cooperation and agreement with the state of Washington.”

 

In the 1948 general election voters approved an initiative outlawing the use of fish traps, fish wheels and seines for catching salmon on the Columbia River.

 

Attorneys for Steve Fick, an Astoria, Ore., based fish buyer and processor, said in comments filed Tuesday that “the AG has previously opined on this issue in construing a similar initiative petition and determined that the Washington fishers with legal gear would be able to operate on the Columbia River despite a ban on Oregon fishers using nets.”

 

The ballot title and summary must explain that “Washington fishers can continue to take salmon and steelhead with currently legal gear from Washington waters” in the Columbia, Fick said.

 

Comments filed by the chief petitioners say the ballot title should make clear that the proposal would not affect the ability of the Compact to adopt seasons but “merely requires that alternative selective commercial methods be utilized in Oregon’s waters in an effort to reduce mortality to ESA-listed salmon, steelhead and other non-target species. Each state has the ability to enact laws or adopt regulations that are more restrictive without the consent of the other.

 

“The practical effect of the measure would be to ban Washington-licensed gill nets in the portion of the Columbia River in Oregon. Therefore, the draft ballot title should indicate that the effect of the measure as ‘Washington gill net licenses no longer valid in Oregon’ or ‘bans use of Washington Columbia River gill nets in Oregon waters.’”

 

Comments filed by Paul Lumley, executive director of the Columbia River Inter-Tribal Fish Commission say that the proposal “in effect, repeals the ban on seine nets and fixed gear in salmon fisheries. The measure also guarantees an allocation of harvestable salmon among non-tribal fisheries.

 

“The effect on the allowable scope of Compact actions is unclear, though consent by the State of Washington may be necessary for implementation of various provisions of the measure, including Washington’s consent to allowing seines and traps, as well as Washington’s consent to a minimum allocation of landed catch between sport and commercial fisheries,” Lumley says.

 

The addition of the provision about catch allocation “runs counter to the purpose for the single subject rule which is to allow voters to express clear intent on a single issue and not be misled by presenting a second issue that is obscured by the stated purpose of the initiation.” That violates the state constitution, Lumley said.

 

The initiative proposal would ask voters to “Ensure that the percentages of the total state, non-tribal Columbia River salmon harvests, including off channel fishery enhancement areas, that are landed in recreational fisheries in the Columbia River and its tributaries are not reduced below the averages of the 2007-2011 fisheries.”

 

Astoria’s Hobe Ktyr says such a provision would limit the public’s access to salmon.

 

“For Oregon consumers, the effect of this proposed initiative would be to drastically limit their choice of locally sources fish, particularly Columbia River salmon. Columbia River salmon sustainably and legally caught in gill nets and tangle nets in waters under Washington jurisdiction, would be off limits to Oregon wholesalers, canners and buyers,” Ktyr said. Since, under a strict interpretation of IP#21, tribal salmon caught in ‘Oregon inland waters’ of Zone 6 would also be out-of-bounds.

 

“Through normal markets, presumably the only way Oregon consumers could continue to enjoy the limited quantities and varieties of Columbia River salmon still available to them would be to drive to Washington and smuggle the fish back across the border, or to buy fish directly from tribal fishermen.”

 

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