Did Ekuk just axe the Nushagak fish tax again?

Jan 11, 2017

Three of five commissioners seemed to revoke support for Dillingham, Manokotak annexation plans Tuesday, granting Ekuk request for 'reconsideration' that could reverse LBC's December approval votes.

Credit KDLG

That the long and contentious road to Nushagak annexation isn't over was evidenced again Tuesday when the state's Local Boundary Commission voted three-to-two to reconsider its approval votes made in December. Has the Nushagak fish tax been "axed" again, or delayed for at least another year? It will again be for the LBC to decide when it reconsiders the petitions on January 24. If they are approved again, the petitions could still meet a January 26 deadline for submission to the state Legislature for review. The cities hope to bring large portions of the Nushagak commercial fishing district within their borders to collect a fish tax by next season. Those opposed have argued it is improper for the cities to claim that much unpopulated territory, or for one city to benefit from a tax on a regional resource. KDLG's Dave Bendinger has more on Tuesday's meeting:

KDLG:  Opposition to Dillingham and Manokotak's annexation efforts scored a big win Tuesday as the Local Boundary Commission voted to reconsider its December decisions to advance both petitions. The move jeopardizes the ability for the petitions to reach the state Legislature in time for review this session, if they are even to gain the LBC's approval again. Based on comments made by a majority of the commissioners Tuesday, that prospect now seems less than likely.

The requests for reconsideration were made by Jim Baldwin, an attorney for the villages of Ekuk, Clark's Point, Portage Creek, and the city of Clark's Point. Ekuk has long opposed Dillingham’s and later Manokotak’s attempts to annex waters of the Nushagak Bay to levy a raw fish tax. Baldwin filed separate briefs regarding each city's petition, telling the commissioners their December vote to advance was faulty in substance and finalized with procedural error.

"We’re arguing that the written decision, which departed almost completely from your staff recommendations and the staff reports, that your findings basically do not satisfy the standards as appearing in regulations. They violate a controlling principle of law, that they’ve not been correctly interpreted or applied," Baldwin said Tuesday.

Baldwin led the lawsuit that successfully overturned Dillingham's 2012 annexation, and his arguments Tuesday found favor with commissioners John Harrington, Darroll Hargraves, and Lavell Wilson, who voted for the reconsideration. Harrington was the leading voice on the commission against the two cities' annexation petitions during the December 1 vote. He said he agreed with almost all of Baldwin's arguments, including what he called the LBC's failed interpretations of the regulations.

“Based on the fact that huge, unpopulated areas, without any population, were to be annexed, when there was no city services to be delivered to those areas," Harrington said Tuesday. "I still think it was a procedural error that we allowed it to go forward when it clearly failed that portion of our checklist.”

Commission chairman Lynn Chrystal attempted to steer Tuesday's meeting away from relitigating the merits of annexation or the preference for borough formation.

"We are here today not to deal with anything we dealt with in Dillingham. It doesn’t matter whether we agree or disagree on the size of the expansion, or whatever," said Chrystal, before giving the four reasons the earlier decisions could be reconsidered.

"Number one is ‘a substantial procedural error occurred in the original proceeding. The original vote was based on fraud or misrepresentation. The commission failed to address a material issue of fact on a controlling principle of law.’ And fourth, ‘New evidence not available at the time of the hearing relating to a matter of significant public policy has become known.’”

Brooks Chandler, an attorney for the city of Dillingham, highlighted for the commissioners his main point: the material issues of fact on controlling principles of law had all already been addressed, he said.

"All of these second thoughts raised by Ekuk, or raised by individual commissioners, do not mean that the commission ‘failed to address’ any of the standards applicable to Dillingham’s petition," said Chandler. "In fact, the commission went through each and every standard and did address them, and therefore it is completely improper to grant reconsideration.”

The city of Manokotak's attorney, Jim Brennan, made a similar argument, also without success. The lengthy public process, staff reports, three days of in-region hearings, and decisional meeting had led to a final written decision that he said was not meant to be casually reversed.

“These are the same type of standards that exist in courts, that when a decision is made on a motion or a judgment is entered, 'finality' is the principle. It’s not intended to allow a ‘do-over,’ which is basically what Mr. Baldwin is asking for and which some of the commissioners seem to want to do.”

But the commissioners voted three-to-two for that do-over, which will involve another full decisional hearing on both petitions. Robert Harcharak and Lynn Chrystal were opposed to any changes, and Chrystal uncharacteristically unleashed some frustration on the dissenters.

“Several of you that are apparently in favor of the reconsideration talked about ‘oh we didn’t discuss this or we didn’t discuss that’ … you had your opportunity. I have never shut anybody off when I’m conducting a meeting. Everybody’s always had their chance to say something. And we need to do this at the time of the meeting, not two and a half months later, on a reconsideration that’s going to cause a lot of extra work for people, going to cost a lot of money for folks. You know, do the discussing then, not later.”

The commission agreed to expedite the schedule and hold the next hearing on January 24, which could still allow time to send the petitions, if approved, to the Legislature for review. If not delivered by January 26, the petitions will not be accepted by lawmakers until the next regular session.

Will the petitions pass muster with a majority of the commissioners again, or has the opposition gained the upper hand in keeping the Nushagak Bay a tax free fishery for now? Harrington is opposed to the annexation plans, favoring formation of a Western Bristol Bay Borough instead. It was never clear where Hargraves stood, though he repeatedly voiced preference for a borough at the earlier hearings and sided with Harrington Tuesday. Chrystal and Harcharak supported the annexations, saying they were in the best interest of the state and would allow the two cities to collect revenue and provide services. Wilson is the swing vote. Though he voted for reconsideration Tuesday, he was supportive of the two petitions in December, but voted against Manokotak's due to the large territory contained in one of the tracts.

Reach the author at dave@kdlg.org or 907.842.5281.