F&W Commission Legalese

[birdhunter]

Okay, so a while back some people were talking about citing an AdminRule for the spring chinook allocation. I've been doing some digging into the issue and wanted to point out under the Oregon Revised Statues what I've found. Now I'm by no means a lawyer or pretend to have any knowledge of the law, so I wanted to throw these out for someone w/ more experience to explain.

You see, under ORS 496.012, one of the coequal goals of fish and wildlife mangement is to provide "optimum recreational benefits". Doesn't say optimum commercial and recreational benefits. It does however say "equitable utilization of avaliable wildlife". Following all of this is another statue (ORS 496.016) which talks about wildlife laws not affecting commercial fishing laws. Can someone please define what the statue actually means? Is it saying that the Commission can't make laws affecting commercial fishing, or that wildlife laws don't have any affect on commercial fishermen? Seems to me something in here might be used to our benefit.

Here's the actual ORS and some links.

Thanks.


ORS 496.012 Wildlife Policy.
It is the policy of the Satate of Oregon that wildlife shall be managed to prevent serious depletion of any indigenous species and to provide the optimum recreational and aesthetic benefits for present and future generations of the citizens of this state. In furtherance of this policy, the State Fish and Wildlife Commission shall implement the following coequal goals fo wildlife management:

(1) To maintain all species of wildlife at optimum levels.
(2) To develop and manage the lands and waters of this state in a manner that will enhance the production and public enjoyment of wildlife.
(3) To permit an orderly and equitable utilization of available wildlife.
(4) To develop and maintain public access to the lands and waters of the state and the wildlife resources theron.
(5) To regulate wildlife populations and the public enjoyment of wildlife in a manner that is compatible with primary uses of the lands and waters of the state.
(6) To provide optimum recreational benefits

496.016 Applicability of wildlife laws to commercial fishing laws.
Nothing in the wildlife laws is intended to affect any of the provisions of the commercial fishing laws. However, nothing in the commercial fishing laws is intended to authorize the taking of game fish in any manner prohibited by the wildlife laws.

ORS 496

Oregon Administrative Rules

[Phish_on]

My head hurts ... I will need to look at this for a while.

I'm not a lawyer, but I've worked for The People and had some experience with Laws and Rules.

Remember the "statute" is The Law, as written and revised by our Representatives and Senators - as guided by lobbyists - while we are at home watching "Temptation Island"

The "Administrative Rules" are devised by the state agencies charged with dealing with the statutes, in this case the ODFW. Rule review is a public process, and the rules are reviewed by the Attorney General to ensure compliance with the statutes.

I'm not sure what to make of the wildlife vs. commercial thing though - - -

I'll ponder that mystery, in the meantime - be careful who you vote for !!!

[Point-of-Sale Clerk]

Birdhunter

Phish_on is very correct regarding the differences between Oregon Statutes and Administrative rules. To put it as simple as possible the legislature sets the goals in the form of statutes and the Commission creates the rules that ODFW must abide by in order to achieve those goals. The legislature says what to do and the commission says how to do it.
Unfortunately there are many other factors that get thrown into the mix like ESA requirements and NMFS edicts.

I am not an expert on ORS’s or Administrative Rules either but two points come to mind. First, I have noticed in both ORS and Admin/rules the absolute separation from commercial fishing and all other things that ODFW does. The statute you quoted is designed to prevent wildlife policy (policy created to protect threatened species and other game management) from impacting commercial harvest. This separation prevents things done for the good of a species from inadvertently reducing a commercial harvest season. An example would be if the commission set an angling rule that did not allow any method of harvest on the Columbia for salmon that had more than a 10% incidental impact on wild fish. This would more than likely mean barbless hooks and selective harvest of hatchery fish only by us sports guys. We would not be able to then restrict commercial harvest on the Columbia because Commercial is separate and is not intended to affect any of the provisions of the commercial fishing laws. However if the legislature passed an ORS requiring no more than a 10% incidental impact on any harvest method the Commission would have to change the Admin/rules to comply for both sport and commercial harvest.

Second, looking directly at state statutes to give us Sports Anglers leverage will more than likely not be successful. Further, Administrative Rules will more than likely also not be any help. Both of these sets of rules were carefully designed to protect commercial interests and were written by lawyers. We must instead take advantage of the Loopholes and the situations not contemplated by the powers that be. “To provide optimum recreational benefits” does not apply to commercial fishing rules but does it apply when ODFW enters into “negotiations” with other states for the Columbia River season. Because ODFW is negotiating simultaneously for a quota of salmon that is split between sport and commercial, saying that the two are separate will not hold. In this instance ODFW should negotiate in a manner that provides for maximum recreational benefit. Will they… no… but they should.

It is important that we look to the mistakes made in the past by ODFW and how they were taken advantage of by other interests. This could lend clues as to what we should look for and how to take advantage.
ODFW just spent $274,000 over the past 16 months to change the *** licensing system back to the way it was 2 years ago. It seems some obscure clerk discovered that ODFW was violating non-codified federal privacy laws and raised a major stink with the legislature. The clerk hoped that ODFW would adopt an ODL identifier but someone at ODFW was still upset so they will be using randomly generated numbers that must be lined up year to year or you loose your preference points. I guess we can kiss our controlled hunts goodbye…
So much for best-laid plans

The nice thing about looking at mistakes made by ODFW as examples is that ODFW seems to create new material every day…(he he)

*** Clerk