The city's appeal of Local Boundary Commission Jan. 24 rejection is moving ahead in court. Dillingham argues the LBC's reconsideration was unlawful, and that the city was not granted a fair hearing. An attorney for the state, plus opponents led by Ekuk, say LBC was perfectly within its rights to correct its earlier wrong.
In January the city of Dillingham lost its effort to annex the territory of the Nushagak Bay when the Local Boundary Commission took a second vote during a reconsideration of its December approval. The “arbitrary” nature of the Commission’s decision making prompted an appeal for judicial review by the city.
“The Commission’s decision to reconsider its own lawful order and then completely reverse that order without any change in the evidence triggered a process which resembled a freight train making a U-turn,” wrote Brooks Chandler, an attorney for Dillingham. “This court has the power to confine the LBC to the tracks set by both its own regulations and Alaska law,” he said in the conclusion of his 59-page argument.
The city filed suit against the state’s Local Boundary Commission in February. The case was assigned to Dillingham Superior Court Judge Tina Reigh, whose predecessor Pat Douglass tossed Dillingham’s first annexation after it had been approved by voters and the state and had been in place for two fishing seasons. Reigh will likely hear oral arguments this fall and will then have up to six months to issue a ruling.
Dillingham’s hotly contested effort to annex the Nushagak fishing district and levy a 2.5 percent raw fish tax met with the LBC’s approval for the second time on December 1. That followed several days of intense public hearings in Manokotak and Dillingham in late November. Petitions for Manokotak and Dillingham were both approved by the LBC, despite the opposition of neighboring communities and, more recently, the LBC’s own staff.
Manokotak’s annexation was then approved by the Legislature and went into effect in time for the 2017 fishing season. A tax was levied against the Igushik set net fishermen only, and raised an estimated $20,000 for the city. Dillingham’s petition was overturned by the later (Jan. 24) vote, but had the original decision stood, Dillingham’s annexation of the Nushagak – leaving out the Igushik fishermen and others along the Ekuk and Clark’s Point beaches – might have raised $1.5 million in 2017, according to one estimate.
The merits of annexing the nearly 400 square miles of water are not at the heart of the Dillingham’s lawsuit, though the city and its opponents both took to rehashing them in their lengthy briefs. Dillingham believes it is the home base of Bristol Bay’s west side fishing fleet and provides necessary services to these seasonal citizens. Those opposed, mainly the Native Village of Ekuk, protest that the fishery is a regional resource and should not benefit one governing entity over any others. State staffers attached to the LBC came to the conclusion that a western Bristol Bay borough should be formed, a solution they had taken to advocating for ahead of the stakeholder meetings in the region last fall.
Dating to 2011, the Local Boundary Commission has agreed with Dillingham four times before the fifth vote was taken at its January 24 meeting. That was a “re-vote” taken minutes after the fourth approval, held during a “reconsideration” hearing. Dillingham says the LBC went off the rails, and claims the reconsideration meeting was unlawful to begin with. At its December meeting, the LBC violated no procedural errors, said Chandler, nor had the commissioners failed to address any “controlling principles of law,” and had no reason to give it a reconsideration.
State assistant attorney general Mary Lynn Macsalka, who gave cover to the LBC’s unusual decisions over the series of meetings last winter, argued the commission was well within its rights to change its mind as it saw fit.
The LBC’s decision “was based on a reasonable interpretation of its reconsideration regulation and was well within the Commission’s discretion to correct what it saw as a serious mistake in its approval of Dillingham’s annexation petition,” she wrote. The vote rejecting the petition, taken under a cloud of confusion by the four of five commissioners present, was “made after conducting an informed, deliberative analysis,” Macsalka claimed.
The state is joined in its defense by Ekuk and the “eastside appellees”, whose attorney James Baldwin argued that the Commission made the right choice in reconsidering Dillingham’s annexation and ultimately rejecting it.
“It is well within the LBC’s authority to revise or reconsider both a non-final and a final decision so that the final annexation decision (approved, amended, or rejected) is consistent with the statutes and regulations, and serves the public interests,” he wrote.
Manokotak is backing Dillingham, according to the brief filed by attorney Sara Heideman. “The grounds identified and relied upon by the Commission here to grant reconsideration were without formation and baseless,” she wrote, and were used “in a contrived effort to circumvent the clear language of the applicable regulation.”
Judge Reigh will decide if the LBC acted within its guidelines and granted Dillingham a “fair” hearing. Among the options her ruling will provide are upholding the January 24 rejection, reinstating the December 1 approval, or sending Dillingham’s annexation petition back to the state’s Local Boundary Commission for another vote.