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Oregon Supreme Court Mulls Gill-Net Ban Title; 2 More ‘Backup’ Titles Proposed For Nov. 2012 Ballot
Posted on Friday, December 02, 2011 (PST)

Banning non-tribal commercial gill-net fishing on the mainstem Columbia River remains a hot topic with comments flooding in regarding two additional draft ballot titles based on Oregon voter initiative proposals submitted early in November.

 

The proposed initiatives are the second and third submitted this year by the Coastal Conservation Association, a non-profit organization whose strength is drawn from the tens of thousands of recreational saltwater anglers. Chief petitioners are Oregon 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 first initiative, filed with the state’s Elections Division in mid-July, made it through draft ballot title and final ballot title phases of the state process, but in September was appealed to the Oregon Supreme Court. No word has been heard yet from the court, which could approve the language, reject it or order a rewrite. Initiative petition language is submitted by petitioners, and then crafted by the state into language it thinks is legal.

 

The first submittal is called (this is not the ballot title) “Protect Our Salmon Act of 2012.”

 

The more recent submittals are called “Protect Our Salmon Act – A” and “Protect Our Salmon Act – B.”

 

The CCA hopes to get a gill-net ban initiative on the Nov. 6, 2012 ballot. To do that, they need to get an approved ballot title and summary. Once that’s done the petitioners have until July 2012 to collect the signatures of 87,213 Oregon voters.

 

So, the CCA developed a backup plan, developing the two newest proposals. If the Supreme Court decides the initial ballot title is unsatisfactory the group’s strategy would still give it a shot at getting an initiative on next year’s ballot.

 

“We would not have to go back to the beginning; we’d be halfway down the road” toward the creation of new, potentially acceptable, ballot titles, according to Bryan Irwin, executive director for the CCA’s Oregon chapter.

 

“We believe the schedule will work for these other two” if the first submittal founders, Irwin said. The petitioners themselves, in a submittal to the high court, found fault with the language developed by the state for the first proposal. Among other things, they said the ballot title, summary and description of the measure’s potential consequences wrongly states that the “measure may affect Columbia River Compact, tribal fishing rights, and fishing management agreements between the federal government, tribes and states.”

 

Draft ballot titles for the two new proposals were received from the Oregon Attorney General’s Office Nov. 7, and comments on the drafts were received by the Nov. 22 deadline from the CCA, the Columbia River Inter-Tribal Fish Commission and commercial fishers.

 

The comments were forwarded to the Attorney General’s Office, which now has until Dec. 8 to deliver a final ballot title and summary. Dissatisfied electors then have the option of petitioning the Supreme Court for a different title.

 

The draft ballot titles, comments and other information can be found at:

http://egov.sos.state.or.us/elec/web_irr_search.main_search

 

The title approved for the new “A” proposal reads:

“Eliminates Columbia River commercial non-tribal fishing; prohibits purchase of non-tribal gillnet-caught Columbia River Fish.”

 

The title for the new “B” proposal reads:

“Prohibits commercial gillnet salmon fishing in the Columbia River by non-tribal fishers outside designated areas.”

The latter proposal would allow commercial fishing in off-channel areas, called “select areas” where hatchery-reared fish return to be netted in so-called terminal fisheries.

 

The CCA did not like the Attorney General’s first cut, the drafts of A or B.

 

“The draft ballot title lacks consistency in describing what the effect of the measure [A] would be, particularly related to its geographic scope. The draft caption focuses only on the Columbia River commercial fishing while the draft ‘yes’ statement describes that the measure would eliminate commercial fishing in all Oregon waters,” the CCA comments say.

 

“The summary goes even further by even further by inaccurately claiming that the measure would eliminate all non-tribal Oregon commercial fishing (in all Oregon waters) by banning gillnets in Oregon’s rivers and bays (inland waters). While the lawful use of commercial gillnets predominantly currently occurs in the lower Columbia River, the use of commercial gillnets is also lawful in other Oregon inland waters” under state law, such as open season for chum salmon and incidental take of salmon in Tillamook Bay.

 

“The Attorney General should describe the measure’s effect accurately and consistently throughout the ballot title,” the CCA said in comments on the “A proposal.”

 

The CCA also said the draft caption fails to accurately describe the measure’s primary change, eliminating the use of gillnets in state-permitted, non-tribal commercial fisheries in Oregon’s inland waters, including the Columbia River.

 

Comments were also submitted commercial fishermen Cary Johnson, Daniel C. Marvin and Steve Fick. Fick also owns a business that purchases, processes and sells wholesale salmon and sturgeon caught in the Columbia. Also weighing in was Hobe Kytr, administrator for Salmon for All, a nonprofit trade association of Columbia River commercial fishermen and processors.

 

All criticized the draft ballot titles for failing to properly describe the potential consequences of the proposed gill-net bans.

 

Kytr said the B proposal, “is a takeoff on the ‘SAFE for Salmon’” proposal sponsored by sport fishing groups in the last two Oregon legislative sessions.

 

He said both failed “because the ‘SAFE for Salmon” proposal is not in the best interests of the people of Oregon. It is not about conservation, but about allocating Oregon’s non-Indian Columbia River Fisheries entirely to the small minority of Oregon’s population which buys sport fishing licenses with salmon and steelhead tags to fish in the Columbia River.”

 

“The argument is that the commercial fleet doesn’t need mainstem harvest to sustain its viability, and that by restricting it to the Select areas, ESA-listed wild stocks will be better conserved while at the same time generating far greater economic benefits by doubling the recreational fishery in the lower Columbia River.

 

“There’s one problem with this argument: none of it is true. First, none of the existing Select Areas is large enough to support a full fleet fishery,” Kytr wrote. He noted that all of the Select Areas are in the lower 30 miles of the river, and thus mostly serve commercial fishers based in the lower river.

 

Ballot titles need to better explain that situation, Kytr says.

 

He also disputed the assumption in the CCA proposals that the gill-nets impact on ESA listed fish in the mainstem is necessarily greater than that of the sport fishery.

 

Fick said that the ballot titles need to inform voters that the proposals would not “prohibit Washington commercial fishers from the same activity in the same waters that will be banned for Oregon fishers” and that the term “’outside designated areas’ is so vague as to be misleading….”

 

“Third, the draft ballot title implies, if it does not overtly state, that Oregon fishers could continue to commercially fish for salmon or other fish in the Columbia river by some means other than gill-net.”

 

He noted that the only gear now legal is gillnets and tangle nets (and other types of nets such as “divers” and “floaters” and “trammel”) so the proposals are effectively a ban on commercial fishing on the Columbia River by Oregonians, but not Washingtonians.

 

Comments on measure A from CRITFC Executive Director Paul Lumley again were, as they were in on the earlier initiative proposal ballot title, critical of language the tribes say would usurp existing fishery management agreements and authorities. CRITFC is composed of the fish and wildlife committees of the Nez Perce Tribe, the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation and the Confederated Tribes of the Warm Springs Reservation of Oregon. It was formed by its member tribes as an arm of the tribal governments for the purposes of providing technical expertise supporting treaty fishing rights and creating a forum for coordinating tribal fish management activities.

 

“Without the mutual consent to the proposed initiative, if enacted, Washington commercial fisheries would continue to be permitted to utilize gillnets and other forms of nets for commercial catch,” Lumley’s comments say. “Though the proposed initiative states in Section 3 that the proposed act would not affect either the Columbia River Compact or fish management agreements between the states and tribes, it is unclear whether the limitation of authority of the Oregon Fish and Wildlife Commission to set seasons on the mainstem Columbia would affect in-season management and hamper cooperative efforts to optimally utilize the harvestable portion of the run by both state and tribal fishers.”

 

The petitioners and CCA argue that “it is not the place of the Attorney General to comment on what is legal in another state. It should only describe what the effect of the measure is on Oregon law. Statements about what other states permit are better left to for and against statements in the Voter’s Guide.

 

“The state of Oregon cannot impose is laws on the state of Washington, but it can adopt laws on its portion of the River under the Columbia river Compact. Since the adoption of the Compact, there have been several decisions that have upheld citizens’ initiatives that banned certain types of fishing gear in only one state,” the CCA said in comments on the ballot titles.

 

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