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An Alaska fishing commission has worked itself out of a job. But its commissioners still make more than $130,000 a year

  • Author: Nathaniel Herz
  • Updated: July 10, 2017
  • Published July 9, 2017

At an obscure state agency in Juneau, two commissioners each earn more than $130,000 a year to oversee fewer than two dozen employees — about the same amount paid to the corrections, health and transportation commissioners, who supervise thousands.

The two political appointees, Ben Brown and Bruce Twomley, are being paid even though they've all but stopped doing the Commercial Fisheries Entry Commission's most essential work: They haven't limited access to a fishery since 2004, and they've resolved no more than three permit applications in each of the past five years, down from the dozens that were once processed annually.

A long-running project to upgrade the agency's obsolete, 35-year-old computer system has stalled. One former employee, who lacked civil service protection, says he was fired after pushing for reforms and providing auditors with information that he said documented the commission's inefficiency and dysfunction.

Meanwhile, several other longtime employees have been allowed to retire and collect state benefits while continuing part-time work for the commission in temporary positions. One, Doug Rickey — who left the agency last month — said he was doing about 20 percent of his work remotely from Las Vegas, where he lives part of the time.

The commission's problems were laid out in painstaking detail in a pair of audits released in 2015 — one of which called for the commissioners to be reduced to part-time status. But efforts to fix the commission have gone nowhere, with commercial fishing interests and the commissioners themselves successfully fending off legislation and an administrative order from Gov. Bill Walker to restructure the agency.

The commission was created in the 1970s in an experiment at "limited entry": capping the number of commercial fishermen in state fisheries as a means of conservation.

The commission decided which fisheries to limit, then reviewed applications from fishermen and ruled on who would get to keep fishing and who would lose access — a right that had been enshrined in the Alaska Constitution until voters approved a limited entry amendment.

The permits issued to the remaining fisherman essentially gave them exclusive rights to what had been a public resource — fish in the sea. Later, with a push from U.S. Sen. Ted Stevens, the federal government began a similar process in waters outside the state's 3-mile limit.

Decades after the commission was created, however, frustration has been building among some of the people responsible for overseeing it and who think it is spending cash that could otherwise go to other commercial fishing programs. (The commission's budget comes from permit and vessel license fees paid by commercial fishermen.)

A new bill from Walker would lower the commissioners' salaries and allow unions to represent lower-level staff — offering them civil service safeguards. And the chair of the House Fisheries Committee, where the legislation sits, says she wants to make deeper changes at the commission.

"There's no leadership there — there just doesn't seem to be any accountability to anybody for anything, and yet there's plenty of excuses as to why things aren't getting done," said that committee chair, Kodiak Republican Rep. Louise Stutes, whose husband, Stormy Stutes, is a retired commercial fisherman. "My question is: What the hell have you been doing?"

Rep. Louise Stutes, R-Kodiak, speaks at a press conference in Anchorage in November. (Marc Lester / Alaska Dispatch News)

Twomley, the commission's chair who was appointed by Gov. Jay Hammond in 1982, was recovering from an injury and unavailable for comment, said Brown, the other commissioner.

In a phone interview, Brown, an appointee of former GOP Gov. Sean Parnell, pointed to budget savings as evidence that the commission has "moved in the right direction."

The number of positions at the commission has declined, from about 30 when Brown arrived at the commission in 2011 to about 20 now, with a $3.4 million staff budget reduced to $2.8 million. The agency has also downsized its offices in Juneau's Mendenhall Valley, a move that Brown says will save another $40,000 a year.

And he said the commissioners are committed to eliminating the remaining backlog of about two dozen applications for permits to fish in limited entry areas, most of which date back more than two decades. (Applicants can continue to fish under an "interim" permit while they await a decision, though such permits can't be sold or permanently transferred.)

"If we don't have recurring things like surprise administrative orders or legislative audits distracting us, I feel like steady progress is being made," Brown said. He added that "an excellent way to make sure the pace got picked up" would be if Gov. Walker named someone to the vacant third commissioner position, which has been open since the Legislature rejected the appointment of former Wasilla mayor Verne Rupright in 2015.

The commissioners' low output, however, undercuts Brown's argument about distractions, since their drop-off in permit decisions began before the first effort to restructure the agency, in 2014.

The commissioners — both of whom are attorneys, though that's not a requirement for the post — issued two final decisions in 2014, three in 2015 and none last year. And they issued three in 2013 and two in 2012 — down from 51 in 2007 and 105 in 1998.

Now, 26 permit applications are still pending before the commissioners; all are at least 10 years old, and 19 were initially filed in the 1980s or before.

Juneau Superior Court Judge Philip Pallenberg, in a 2013 decision, said the proceedings over one pending permit threatened to drag on as long as the "endless litigation" in a Charles Dickens novel, "Bleak House."

"Judges and commission members have retired, the original hearing officer has died, and still this court is trying to glean information from the sparse record of a 20-year-old hearing," Pallenberg wrote.

The Legislature created the commission in 1973. Since then, it has limited entry into 68 state-managed fisheries, from crab to herring to salmon, and considered nearly 23,000 permit applications.

The CFEC essentially acts as gatekeeper to the limited entry fisheries — deciding who is and isn't granted permits that can be worth hundreds of thousands of dollars.

Once it decides to limit a fishery, the commission determines how many permits will be issued, then allots them after assessing fishermen's past participation in the particular fishery and their "economic dependence" on it. Permit decisions are initially made by a hearing officer, though denials are generally appealed to the commissioners. Even then, the commission isn't the last word — its decisions can be appealed to the courts.

After the initial limits are established and permits handed out — a process that can take decades — the commission doesn't authorize new permits. And since most of the limited entry fisheries were created by the 1990s, the commission has faced a dwindling workload.

The limited entry program has been a "great success" for the state, and the commission has an "outstanding record" of defending its decisions in court, wrote one of the two auditors, Tom Lawson, in his 2015 report to the Alaska Department of Fish and Game.

But after dispensing with the initial backlog of applications, commissioners now have significantly less work to do, according to the other review, conducted by legislative auditors. Commission staff have written memos saying that no new fisheries are likely to need limitation in the near future, which means that there will be only sporadic new permit applications to review, if any at all.

The legislative audit recommended that the commissioners be reduced to part-time status, while Lawson, the other auditor, suggested that they could be replaced by members of the governor's Cabinet.

Stutes and a former commission employee, Kurt Iverson, described a workplace with little oversight in which the commissioners were frequently absent from the office. Iverson, who says he was fired by the commissioners, gave auditors a document that showed Brown spent 78 workdays out of the office in 2014.

"Their failure to complete the adjudications in front of them is solely because they're not trying," Iverson said.

Brown, asked about his attendance, said: "I certainly do have a life outside my job. But at the same time, I take leave when I'm not here and those leave slips are approved by someone other than me."

The permit applications he's been working on are "very complex and voluminous," and entail reviewing tapes and transcripts from multiple hearings, Brown added.

"It can be done. It's a matter of just getting through the files, writing decisions," Brown said. He declined to comment on Iverson's departure from the commission's staff.

Policymakers have been pushing for efficiencies at CFEC since 2014, when Homer Republican Rep. Paul Seaton — then the chairman of the House Fisheries Committee — proposed to repeal authorization for the commission and transfer its duties to the Department of Fish and Game.

Seaton's bill went nowhere, and neither did a similar one introduced a year later by Stutes, the Kodiak Republican.

In February 2016, Walker signed his order to transfer the commission's administrative and research functions to the Department of Fish and Game. But fisheries lobbyist Bobby Thorstenson Jr. sued to stop the order a month later. And the board of the United Fisherman of Alaska — the state's primary industry group, of which Thorstenson was once president — subsequently voted to join the suit.

Thorstenson didn't respond to requests for comment. But commenting on a fisheries blog in 2015, amid debate over CFEC's future, Thorstenson wrote that Brown and Twomley "are invaluable public servants."

Thorstenson has worked for crab, scallop, salmon and herring fishing groups — members of which stand to gain or lose from commission actions on permits and fisheries limitations. And in the past, Brown, one of the commissioners, has advocated before the Legislature for a policy that would benefit one of Thorstenson's clients.

In 2013, when a commercial group represented by Thorstenson was lobbying for a bill to preserve limits on the small but lucrative state scallop fishery, Brown accompanied another lobbyist for the same group, former CFEC commissioner Frank Homan, in the halls of the state Capitol, according to Laws for the Sea, a fisheries newsletter.

The scallop fishery permits had been "methodically consolidated" to just a few business partners, and Homer Republican Rep. Paul Seaton was raising questions about whether the trend violated legal prohibitions on creating "exclusive rights" to fisheries, the Alaska Journal of Commerce wrote in a subsequent editorial. It chided Brown and Twomley for treating the consolidation with a "nothing-to-see-here attitude" that "fails to meet their obligations to put the state and its constitution first."

Brown said the commission had already taken a position on the scallop fishery that aligned with the commercial fishing industry's. And he downplayed the commission's work alongside the industry to keep the scallop fishery limitations intact.

"If that's a source of concern to you, fishermen wouldn't be able to talk to members of the Board of Fisheries," whose members make specific decisions that divide harvests among different groups of fishermen, Brown said. He and Twomley had no financial interest in the scallop fishery, Brown added.

A Juneau Superior Court judge dismissed Thorstenson's suit in July 2016, but after it was appealed to the Supreme Court, Walker announced in August that he was pausing his order to "allow for a more robust stakeholder engagement process." He subsequently introduced legislation in April that pursues limited reforms: reducing commissioner salaries by about $20,000 apiece, and moving staff into the classified service — taking them out of political appointee status and allowing civil service protection.

The legislation lacks any provisions to specifically address the permit backlog or the commission's obsolete computer system.

Sam Cotten, Walker's commissioner of fish and game, said the bill was written to have a realistic shot of passing and is a good start.

"You know how it works with the Legislature: You can put a bill in for show or you can put one in for go," said Cotten, a former Alaska House speaker. "We think we can get that much through."

Commercial fisheries advocates argue that their industry has fought to protect the commission in part because it offers great service.

In addition to limiting fisheries and making decisions on permits, the commission also has a section devoted to issuing annual licenses — which is the sole point of contact for nearly all commercial fishermen. And the section gets rave reviews for its responsiveness, with Lawson, the auditor, describing it as "well-run and highly respected."

"You get a permit and those guys get that permit right out to you, on time, and take care of problems when people have problems," said Jerry McCune, the current president of UFA's board, in a phone interview from his boat in Prince William Sound.

But some observers say that the fishing industry could benefit from more efficiency at the commission, since excess money in its budget — which has come from fees paid by fishermen — could be spent on other commercial fishing programs, which are currently under pressure amid Alaska's budget crisis.

"I'm frustrated to see the reluctance on the part of fishermen and the commissioners to be open to change and more efficiencies," said Mary McDowell, who was a CFEC commissioner from 1997 to 2005. "I think they need to realize that if you could get the same good service from CFEC for less money, that frees up that money to go into other needs to keep their fisheries healthy."

McCune said commercial fishermen are open to finding additional savings at the commission. But they objected to Walker's administrative order to move the commission's functions to the fish and game department because they think those two agencies should be separate.

"UFA didn't say, 'Absolutely no changes to CFEC,'" said McCune. He said there's room to talk about moving the commissioners to part-time status in the future, though he added that Brown and Twomley do a "great job."

Stutes said she wants more aggressive reforms to the commission than those proposed in Walker's new bill, though she added that she's not sure what form they will take.

"There has to be a change if they're simply not getting the work done," she said, referring to the commissioners' failure to clear the backlog of permit applications. "I've been asking for three years and I've been told the same story for three years: 'Give us six months and we'll have everything done.' Now it's time to say, 'Well, it isn't done.'"

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