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Oregon Attorney General Issues Modified Ballot Title Proposing Non-Tribal Gillnet Ban
Posted on Friday, December 16, 2011 (PST)

A proposed Oregon ballot initiative that would ban the use of non-Indian gillnets in the Columbia River mainstem reached a new stage this week with the issuing of a “modified” title and summary in answer to directions from the state Supreme Court.


Now, 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 was filed Thursday, Dec. 14 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 its Elections Division 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.


The state’s procedure for determining whether the measure qualifies for next year’s Nov. 6 general election ballot has been ongoing since the proposal was submitted to the state Elections Division July 18 by the Coastal Conservation Association, a non-profit organization made up in large part of 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 initiative proposal can be found at:


As required by state statute, the Oregon Attorney General’s Office crafted a draft ballot title and summary of the proposal that it delivered to the elections office July 26. That launched a comment period.


The title and summary drew criticisms from commercial fishermen, tribes and petitioners.


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 weighed in as “amicus curae,” a friend of the court.


The Supreme Court responded Dec. 8.


“Between them, they advance a host of arguments asserting various inadequacies of the ballot title,” the Supreme Court order said of comments it received on the ballot proposal. “We reject all but two of those arguments without discussion.”


“The first of the two arguments that require discussion pertains to the caption. The chief petitioners argue that the caption, as certified, ‘does not express the principal change that the measure proposes: to ban commercial fishing with gillnets in the Columbia River.’ According to the chief petitioners, the Attorney General ‘appears to be trying to capture as many concepts as possible within the caption, but that effort results in information that is too general to aid voters.’


“It simply states that the measure would change unspecified ‘fishing methods/procedures,’ when the actual subject of the measure is the prohibition of the only method that current law allows -- namely, gillnetting -- and the authorization of seine or fixed gear fishing in its place.


“We conclude that the caption, which fails to mention the actual major effect of the measure, fails to substantially comply with the requirements of ORS 5 250.035(2)(a). As a result, the ballot title must be referred to the Attorney General for modification,” the court’s Dec. 8 ruling says.


In its order the court cited legal precedent that requires that, “In all events, the information must pertain to an identified, actual ‘effect’ of enacting the measure; it is not permissible to ‘speculate about the possible effects of a proposed measure.’"


“In this case, the summary that the Attorney General certified runs afoul of that latter principle,” the court ruled. “In stating that the measure ‘may affect Columbia River Compact, tribal fishing rights, and fishing management agreements,’ it merely speculates that there is a possibility that the measure may affect the various laws and agreements listed in entirely unspecified ways.


“A possibility that enactment of a measure may produce unspecified consequences is not an ‘effect’ within the meaning of ORS 250.035(2)(d). The summary therefore does not substantially comply with the statutory requirement to state the ‘effect’ of the measure, and, for that additional reason, the ballot title must be referred to the Attorney General for modification.”


The Attorney General’s Office responded five days later by filing a modified title with the court. The modified title says:


“Prohibits commercial non-tribal fishing with gillnets in Oregon "inland waters," allows use of seine nets”


“Our primary concern with the title is that it didn’t say gillnet,” said Bryan Irwin, executive director of CCA’s Oregon Chapter. The previous title said “Specified commercial non-tribal fishing methods/procedures changes; recreational salmon fishers ensured minimum share of catch”


“It’s definitely the title we were seeking,” Irwin said of the modified title. “It’s much clearer and expresses exactly what the measure does.”


“We will not file an objection.”


Following is the modified initiative summary:


“Result of ‘Yes’ Vote: ‘Yes’ vote changes commercial non-tribal fishing in Oregon ‘inland waters’ (defined) by banning gillnets, adopting other regulatory changes; recreational salmon fishers ensured their recent share.


“Result of ‘No’ Vote: ‘No’ vote continues current commercial fishing practices, retains laws allowing gillnets, leaves other current regulations in place; continues annual adjustment of recreational salmon harvest share.


“Summary: Current law allows commercial salmon fishing in Columbia River only with gillnets; requires recreational salmon fishers' percentage share of overall salmon catch to be readjusted annually; allows issuing of gillnet permits within limit of 200; recognizes gillnet licenses as valid in Columbia River in both Oregon and Washington waters. Measure bans commercial gillnet fishing by nontribal fishers in Oregon "inland waters" (defined); requires Oregon Fish and Wildlife Commission to permit use of "seine nets" (defined) instead; ensures that recreational salmon fishers' percentage of overall salmon catch remains at 2007-2011 levels; prohibits purchase of salmon caught by gillnet by non-tribal fishers in Oregon inland waters; prohibits issuing of additional gillnet permits; repeals statute recognizing validity of gillnet licenses in Oregon and Washington waters. Other provisions.”


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