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Battle Over Ballot Title For Oregon Non-Indian Gill-Net Ban Goes To State Supreme Court
Posted on Friday, September 23, 2011 (PST)

Proponents and foes alike last week lined up to ask the Oregon Supreme Court to require a rewriting of an election ballot title that would serve to ban non-Indian commercial gill-nets on the mainstem Columbia River under the state’s jurisdiction.


The initiative was proposed in July 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 Oregon initiative process requires the creation, by the state Attorney General’s office, of a draft ballot title and summary that breaks down the intent of the proposal for voters. The CCA aims is to get the initiative on the November 2012 general election ballot.


That draft was due, and delivered, July 26 and followed by a comment period that ended Aug. 9. The AG’s office then, taking the comments into consideration, delivered a “certified” ballot title Aug. 24 that outlined its understanding of what would occur if the initiative is approved, or if it was voted down, and provided an updated summary of the proposed measure’s intent.


That opened the door for appeals or petitions to the Oregon high court to have the title, summary and description of the measure’s consequences reworded. Both the CCA and commercial fishing interests responded, and the Columbia River Inter-Tribal Fish Commission checked in as “amicus curae,” a friend of the court. The Supreme Court is directed by law to address such petitions “expeditiously” so that such initiative drives can proceed in a timely manner.


CRITFC was formed by the Nez Perce, Umatilla, Warm Springs and Yakama tribes to provide technical assistance regarding the implementation of Columbia River treaty fishing rights. Mainstem Columbia River commercial fishing is now regulated by the Columbia River Compact, which was created as the result of a congressional directive in 1918 Congress. The Compact is made up of representatives of the Oregon and Washington department of fish and wildlife directors. Fisheries are co-managed where the river represents the states’ border.


The allocation of Columbia River fish resources is guided by a 10-year court-ordered agreement, via the long-running U.S. v Oregon lawsuit, that was approved in 2008. The agreement was the result of negotiations between the parties to the lawsuit, which include the four treaty tribes, the states of Idaho, Oregon and Washington, and the federal government.


CRITFC’s petition to the Oregon court says that the ballot title and summary is “at odds” with the federally created Compact and would not properly inform voters of that fact.


“The description of the proposed initiative should fully inform the public of any potential disruption to the operations of the Compact it may cause, and information such as the foregoing is central to that task,” according to the CRITFC petition.


The CRITFC petition also suggests that the ballot title and summary as written could conflict with the catch sharing provisions of the 10-year U.S. v Oregon fishery management agreement.


In the event of a conflict, Oregon could seek “to modify its terms or invoke dispute resolution, but it could not unilaterally require renegotiation of the agreement” as a result of the ballot initiative, the CRITFC petition says.


“Alternatively, Oregon could seek to withdraw” from the agreement.


The ballot initiative petitioners and CCA say that the certified ballot title wrongly states that the “measure may affect Columbia River Compact, tribal fishing rights, and fishing management agreements between the federal government, tribes and states.”


“The Attorney General may not state that a measure may change a law in a certain way when the measure expressly provides that the measure does not make that change,” according to the CCA petition to the Supreme Court. The fishing organization’s proposed change of Oregon law says that the gill-net ban would not apply to tribal fisheries.


It says the initiative proposes to “comply with the terms of Columbia river fisheries management agreements between the United States, Indian tribes and states.”


“The Attorney General’ s conclusion (that the proposal) may affect tribal fishing rights is contrary to any reasonable interpretation of the language, which specifically exempts treaty tribal fisheries from the prohibition on the use of gillnets and the sale of fish taken by gillnets,” the CCA petition to the Supreme Court says.


The ballot petitioners say that the certified ballot title fails to incorporate comments made by the petitioners. The title reads” “Specified commercial non-tribal fishing methods/procedures changed; recreational salmon fishers ensured minimum share of catch.”


The CCA says the title “fails to inform voters sufficiently of the change in current law that the measure proposes, which is to ban the use of gillnets in Oregon Columbia River commercial fisheries.”


Petitions filed by commercial fishermen Steve Fick, who also operates a small fish processing company, and Cary Johnson, and Hobe Kytr, administrator for the Salmon for All, a non-profit trade association of commercial fishers and fish processors, say the proposal, as described by the proponents and as described by the Attorney General, is illegal, and inequitable economically.


“The proposed initiative would unilaterally, which would be in violation of the interstate agreement, change permitted commercial fishing methods, regulations and procedures,” according to Johnson’s petition to the Supreme Court. “It would reverse the state’s ban on seines in the Columbia which was established by voters in 1948.”


The petition suggests shifting from gill-nets to seines, which are presumed to be less harmful to wild salmon stocks that are protected under the Endangered Species Act.


The CCA, CRITFC and the commercial fishing petitioners all said that the voters need a clearer portrayal of the proposals effects.


Fick suggested that the ballot initiative summary should read:


“Summary: Current law allows commercial fishing in Oregon waters of the Columbia River by both Oregon and Washington-license fishers. Measure bans commercial harvest of salmon/sturgeon/other fish by Oregon fishers with currently-legal gear, but does not ban Washington Columbia River fishers using the same gear; prohibits Oregon buyers from purchasing Columbia River salmon and other fish harvested by specified gear; uncertain effect as to buying restriction on Oregon purchase from tribal fishers. Measure may affect Columbia River Compact and fishing management agreements between federal government, tribe sand states. May allow previously prohibited Columbia River harvest methods.”


State law allows that any Oregon elector who submitted timely written comments on the draft ballot title may petition the Oregon Supreme Court if the elector is dissatisfied with the certified ballot title issued by the Attorney General.


If an elector files a petition to review a certified ballot title with the Supreme Court, the elector must also notify the Elections Division in writing that a petition has been filed.


After a petition to review the ballot title is filed, the Supreme Court conducts the review. If the Supreme Court determines that the certified ballot title complies with the statutory requirements, the court certifies the title to the Secretary of State.


If the Supreme Court determines that the certified ballot title does not comply with the statutory requirements, the court either modifies the title and certifies it to the Secretary of State or refers the title to the Attorney General for modification.


If the Supreme Court refers the ballot title to the Attorney General for modification, the Attorney General must file a modified ballot title with the Supreme Court and serve copies on all parties to the proceeding.


The Attorney General must then file the modified ballot title with the Supreme Court no later than the fifth business day after the court referred the title to the Attorney General for modification


Any party to the ballot title review proceeding may file an objection to the modified ballot title no later than five business days after the modified title is filed with the Supreme Court


If a party to the ballot title review does not file an objection by the deadline, the Supreme Court certifies the modified ballot title to the Secretary of State and enters an appellate judgment the next judicial day.


If a party to the ballot title review does file an objection by the deadline, the Supreme Court must review the modified ballot title to determine if the title complies with the statutory requirements for ballot titles.


If a party to the ballot title review does file an objection, steps 2–5 are repeated until a final ballot title is certified by the Supreme Court and an appellate judgment is received by the Elections Division.


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