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#1021658 - 02/05/20 08:36 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Carcassman Offline
River Nutrients

Registered: 11/21/07
Posts: 7411
Loc: Olema,California,Planet Earth
That still misses the point of the suits. It is not about how NOAA approves the fisheries. This is an entirely different question. The suits are about the nuts and bolts of how WDFW actually makes the RULES that govern the fisheries.

The whole process is flawed. But suits are dealing with how WDFW actually complies with the laws regarding how they set rules. Do the WA laws have meaning, or are they treated like the Constitution?

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#1021765 - 02/07/20 05:42 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
rojoband Offline
Returning Adult

Registered: 05/31/08
Posts: 264
How did the hearing go today?

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#1021808 - 02/08/20 06:03 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
rojoband Offline
Returning Adult

Registered: 05/31/08
Posts: 264
So no reports? Did the state violate the Open Meetings Act or not? Is the judge going to dismantle the NOF process and eliminate the Director and/or commission? What about forcing the tribes to adhere to the open meetings act? I thought there was a huge amount riding on this? And this was the summary judgment date...so?

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#1021809 - 02/08/20 07:51 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: rojoband]
Rivrguy Offline
River Nutrients

Registered: 03/03/09
Posts: 4393
Loc: Somewhere on the planet,I hope

Only had a brief discussion but state got the summary judgement. That is the bad part but the other part is that whichever way the judge ruled it was going to be appealed by the other party. In a nutshell a trial would have cost both parties a substantial sum of $$$ so the summary judgement saved both sides a ton of legal cost. So now it goes up the court ladder on strictly legal interpretation of the law.
_________________________
Dazed and confused.............the fog is closing in

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#1021810 - 02/08/20 08:39 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Bay wolf Offline
Repeat Spawner

Registered: 10/26/12
Posts: 1075
Loc: Graham, WA
It’s my understanding that THFWA will publish an update sometime in the near future.
_________________________
"Forgiveness is between them and God. My job is to arrange the meeting."

1Sgt U.S. Army (Ret)

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#1021927 - 02/11/20 10:30 AM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
rojoband Offline
Returning Adult

Registered: 05/31/08
Posts: 264
Originally Posted By: Rivrguy

Only had a brief discussion but state got the summary judgement. That is the bad part but the other part is that whichever way the judge ruled it was going to be appealed by the other party. In a nutshell a trial would have cost both parties a substantial sum of $$$ so the summary judgement saved both sides a ton of legal cost. So now it goes up the court ladder on strictly legal interpretation of the law.


Wait, so the state completely WON? So the judge ruled they followed the rules correctly?

My understanding of appealing things is that the next court looks to see if the first court erred on the rulgin, they don't "relook at the legal interpretation of the law"....so if things were lost at this level, the only way to get things overturned is if the first court egregiously erred. Plus, doesn't the appellate court have to accept the appeal? Maybe this will all be answered in the update...thanks.

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#1021930 - 02/11/20 10:51 AM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
MPM Offline
Spawner

Registered: 12/09/08
Posts: 766
Loc: Seattle, WA
In general, there are a number of grounds on which a party could appeal a summary judgment ruling, which could include that the trial court erred in its interpretation of the law or that it erred in deciding there were not genuinely disputed factual issues.

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#1021982 - 02/11/20 05:18 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: MPM]
Rivrguy Offline
River Nutrients

Registered: 03/03/09
Posts: 4393
Loc: Somewhere on the planet,I hope
Here is the update and I will fix the links as they do not C&P. I found both Curt Smitch & Phil Anderson's declarations very interesting. In fact I think Curt unloaded on the bit Anderson put with the words " Once you buy into the assertion mere mortals cannot understand the process " If you participate in the NOF process this must reading.

On February 11, 2020 at 3:13 PM Tim Hamilton <THFWA@comcast.net> wrote:


February 11, 2020
Judge "fast tracks" Open Meeting Act suit

On February 7, 2020 Judge Erik D. Price heard motions for summary judgement filed by WDFW and Twin Harbors Fish & Wildlife Advocacy.  The judge decided not to consider the large fact file in the case but rather to grant WDFW's motion. 

The question the judge focused on was whether or not the Open Meeting Act applied to the North of Falcon (NOF) process used by WDFW to set salmon seasons in Washington State. He recognized the lack of legal precedents on the issue.  His action fast tracked the process to have the appellate court provide the answer before rather than after a lengthy trial. The Advocacy legal team is currently drafting the appeal.

While the Advocacy would have preferred he grant our motion rather than WDFW's motion, it's really irrelevant.  The purpose of the litigation is to determine whether or not the OPMA applies to NOF.  The action by Judge Price provides a means to get that answer from the appellate court without a lengthy trial.  It also allows the Advocacy legal team to concentrate on the other two suits underway under the Administrative Procedures Act (APA) and Public Records Act. 

An interesting factor was the filing of declarations.  The Advocacy filed a declaration from former Commission Chair Miranda Wecker and one from former WDFW NOF manager Pat Patillo. 

In response, WDFW filed a declaration from former WDFW director Phil Anderson who disputed the two declarations filed by the Advocacy.  In response to Anderson, the Advocacy filed a declaration from Curt Smitch the former head of the Dept of Game and natural resource advisor for Governors Gardner and Locke who disputed Anderson.

These declarations are an intriguing look into the history of NOF and the actions of key players.  The Phil Anderson declaration is https://drive.google.com/file/d/1x_VQdWzwN6chlSftQSGyUophSD-6vWo_/view .  The Curt Smitch declaration is https://drive.google.com/file/d/1PKJOTZOaAm6nhriYkSpTQVCW1XyxHqAl/view .

The Wecker and Patillo declarations are available under Update #9 on the advocacy website at http://thfwa.org/legal-issues


Edited by Rivrguy (02/11/20 05:56 PM)
_________________________
Dazed and confused.............the fog is closing in

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#1021984 - 02/11/20 06:24 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Great Bender Offline
Juvenile at Sea

Registered: 01/03/17
Posts: 155
Loc: Hood Canal
Some sarcasm: Why is it that Phil Anderson continues to be "the gift that keeps on giving"??

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#1022002 - 02/11/20 08:06 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Great Bender]
Bay wolf Offline
Repeat Spawner

Registered: 10/26/12
Posts: 1075
Loc: Graham, WA
Originally Posted By: Great Bender
Some sarcasm: Why is it that Phil Anderson continues to be "the gift that keeps on giving"??


Right? I mean, he gets fired, and now, somehow is the guy they turn to to justify secret meetings!

If that doesn't epitomize how screwed up things are in the Department of Less fish and Wild-lies then nothing does!

Gotta love Phi's insinuation that North of Falcon is just too complicated for stupid recreational anglers to understand, so it's better to just keep them in the dark!

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#1022020 - 02/11/20 08:55 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Bay wolf]
rojoband Offline
Returning Adult

Registered: 05/31/08
Posts: 264
Originally Posted By: Bay wolf
Originally Posted By: Great Bender
Some sarcasm: Why is it that Phil Anderson continues to be "the gift that keeps on giving"??


Right? I mean, he gets fired, and now, somehow is the guy they turn to to justify secret meetings!

If that doesn't epitomize how screwed up things are in the Department of Less fish and Wild-lies then nothing does!

Gotta love Phi's insinuation that North of Falcon is just too complicated for stupid recreational anglers to understand, so it's better to just keep them in the dark!


Not to distract from this thread but he wasn’t fired. Just a correction there Bay Wolf. He was one of the Directors that decided when he wanted to leave, here is a good article I recall on the issue (even has a Wecker quote): https://www.google.com/amp/nwsportsmanmag.com/anderson-leave-wdfw-end-year/amp/

But thanks river guy for posting that stuff and the update. Really interesting reads.


Edited by rojoband (02/11/20 08:59 PM)

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#1022044 - 02/11/20 10:35 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Bay wolf Offline
Repeat Spawner

Registered: 10/26/12
Posts: 1075
Loc: Graham, WA
Your right...Directors don’t get fired...they are asked to find other employment and the announcement reads “ resigns “.

I was at the Commission meeting when multiple tribal representatives told the Commission they were very upset with “the lack of transparency “ from Phil Anderson and his decision to settle with WFC and ultimately end the hatchery steelhead program without consulting the tribal Co-managers. They added they felt they could no longer work with him.

The Commission members were not real happy either.

So, in Phil’s own words : “ Deciding when to move on is a difficult decision,” Anderson said. “But after 20 great years with the department, the time is right for me to step aside.”

Phil was the architect of the culture of secrecy that we are still dealing with today. Ironic that it was exactly his lack of transparency with the tribal co-managers that ultimately lead to his..”decision to move on”
_________________________
"Forgiveness is between them and God. My job is to arrange the meeting."

1Sgt U.S. Army (Ret)

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#1022059 - 02/12/20 07:28 AM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
snit Offline
Three Time Spawner

Registered: 03/08/99
Posts: 1844
Loc: Wenatchee, WA
Thanks again for all the updates. What a complete and utter [Bleeeeep!] show!

I'm just thankful that I never drifted into the anadromous fisheries arena for employment! Even though it had an attractive draw to me, I sensed a MEGA fight was brewing over this resource since the mid/late 80's (when I was still in HS). Hearing about the Boldt Decision and the "collapse of steelhead" (I think a lot of indicators caught up at the same time period; sprawl, habitat destruction, etc), witnessing firsthand the salmon collapse from the '82 El Nino, the hatchery VS wild faction build steam throughout the 90's, the explosion of the intewebz and the global exploitation of our PNW steelhead, tribal expansion with legalized gaming throughout the state with diversified business interested, plus the latest concept of "Manifest Destiny" to the PNW in the last 25 years leading to a mass implantation of population expansion coupled with local green-space degradation has all but assured (to me) that recovery efforts will never be successful.


Like a lot of us that frequent Bob's site, I have friends that are well entrenched in this "industry" (on multiple fronts). I try not to pry into their privy information, much less provide online vague clues/hints of upcoming information releases (as some do, without further detail) just to be a glory whore. I DO appreciate all the information from the folks that are directly involved in these pertinent matters though! My hat is off to you!!!

I do feel that there's been a definite abuse of power, or lack thereof, depending on which bargaining side you look at in the NOF meeting and that transparency is definitely needed. For a lot of the people involved in the process, their hands are tied to their tasks, and that must be a shiatty feeling! I too have a boss, but I have a tremendous amount of freedom and flexibility which I treasure. My guess is that the problems are closer to the top if we're ever given the chance to fully analyze the data?

I'll close my long-winded diatribe with something my old man mentioned a long time ago. I was barely a teenager in the early 80's and I was bitchin' about the Great Lake's steelhead articles in STS and that I could care less about them. Anyhow, pops said "once the Dams and Indians kill the last steelhead, then we will have to go back to the Great Lakes and get broodstock to rebuild everything". Notice he wasn't taking any blame in the demise, but he saw it coming. Then the fight would still continue...
_________________________
..."the clock looked at me just like the devil in disguise"...

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#1022126 - 02/12/20 02:17 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Salmo g. Offline
River Nutrients

Registered: 03/08/99
Posts: 13520
Good reads in those declarations by Anderson and Smitch. Phil's sure is patronizing. Smitch's is a fun read, altho he speculates in regard to what WDFW and NMFS is thinking.

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#1023308 - 03/01/20 07:51 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Salmo g.]
Rivrguy Offline
River Nutrients

Registered: 03/03/09
Posts: 4393
Loc: Somewhere on the planet,I hope

Here is the latest update on legal issues around the APA / NOF process. For those who follow this read the brief and declaration linked in this post. It is getting interesting!


March 1, 2020 Legal Update #11

Pubic Records Act litigation "Heats Up"

The litigation between Twin Harbors Fish & Wildlife Advocacy and WDFW has "three legs" that challenge WDFW's North of Falcon (NOF) process used to set salmon seasons in WA. The statutes cited are the Open Public Meeting Act (OPMA, Administrative Procedures Act (APA) and the Public Records Act (PRA) that create the state's "sunshine" or transparency protections of the public.

On February 28, 2020, the PRA suit came front and center with the filing of the Advocacy's brief on merits in Thurston County Court. Attached to the Advocacy Brief was a declaration by Advocacy President Tim Hamilton. Unlike the other claims, the process used by the court's to determine PRA liability does not require a trial. Rather, the decision is reached by the judge reviewing the evidence, briefs and declarations filed by both sides (WDFW response forthcoming). As a result, the outcome should be known this spring.

The brief and declaration are both worthy reads. The filings show the frustration many feel when trying to figure out what is going on behind closed doors in co-management meetings behind closed doors when seasons are set. The brief also gives those who have always wondered how NOF actually works a step by step simplification of how seasons are actually set and by whom.

The PRA leg all starts on October 2016 when the Advocacy files a public records request seeking documents and records related to co-management negotiations that resulted in the adoption of the "List of Agreed Fisheries (LOAF) which was then installed as the seasons in Puget Sound earlier that year. By January of 2020, WDFW has responded with 35 document dumps called "Phases" and confirmed this will continue on into the future for an unknown period of time.

Hamilton describes the lengthy process with "As of Phase 35, I have received approximately 10 gigabytes of document production with over 8,100 files ranging in size from 1 page to 1,000 pages each. I estimate that the page count exceeds 155,000 but have not attempted to create an exact count. By my estimation, over 90% of the documents that I have received are not responsive (given the volume produced by WDFW, it is impossible to estimate an exact percentage)."

The brief argues the Department's current practice of requiring the public to file a public records request and wait years to see what happened in NOF is not a substitute for having a rule making file on season setting available to public during the season setting process as required by the APA. Further, dragging out a public record request over a 3 plus year time frame is not "prompt" and that the Department intentionally hit the Advocacy with a "blizzard" of non-responsive records that "...allows WDFW to avoid disclosing documents it may not want to disclose." The Brief further argues "....never completing the records request allows WDFW to keep the discovery request open indefinitely and thereby, in WDFW's opinion, shielding itself from litigation based on WDFW's failure to produce the requested records." In simple terms, the process used by WDFW results in members of the public stuck with an "I can't get there from here" scenario.

A direct link to the Advocacy's PRA Brief is HERE https://drive.google.com/file/d/1Z-GJ6N6TkqYDT013ov6IG6HwiTrz7VHJ/view and a direct link to Hamilton's Declaration is https://drive.google.com/file/d/1J5Ws3vQ-gquo7Cfb9_nnBWR3UvnwkU2A/view
_________________________
Dazed and confused.............the fog is closing in

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#1023311 - 03/01/20 10:12 PM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Bay wolf Offline
Repeat Spawner

Registered: 10/26/12
Posts: 1075
Loc: Graham, WA
No surprise that WDFW's culture of secrecy runs so deep that they can't even be truthful when filling a records request.

So, we say: "We want to know what's going on in the closed door meetings"

They respond: " Trust us, there's nothing to see, but if you really want to know, send in a Public Records Request"

We do, and they do a huge paper dump of thousands of worthless records and never do provide any information that reveals anything about what happened in the secret meetings.

OH YA...I TOTALLY TRUST THEY HAVE OUR BACKS!
_________________________
"Forgiveness is between them and God. My job is to arrange the meeting."

1Sgt U.S. Army (Ret)

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#1023322 - 03/02/20 07:36 AM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Bay wolf]
Tug 3 Offline
Returning Adult

Registered: 03/06/14
Posts: 260
Loc: Tumwater
I think its time to contact our legislators to express how outrageous WDFW's actions are. I met with mine this fall. Time to talk to our representatives about WDFW's budget and not serving the public. Get off your butt and do this!

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#1023326 - 03/02/20 09:11 AM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Salmo g. Offline
River Nutrients

Registered: 03/08/99
Posts: 13520
Ugh! Reading those declarations makes me want to puke! It is more than apparent that WDFW knows what the Advocacy wants and is doing everything it possibly can to avoid disclosure. It's hard for this citizen to fathom what could possibly be so important to keep secret. To go to such lengths in the legal proceeding, it makes it seem as though WDFW is trying to avoid disclosing videos of the Director and Mr. Warren having sex with animals or some such. There cannot possibly be any fishery or fishing season related documents that merit such extreme secrecy.

It really feels like it is time for the WA Legislature to dissolve the Fish Program within WDFW and start over. From scratch. And in full and complete compliance with the PDA, APA, and OPMA. And while we're at it, include audits of each and every WA funded fish hatchery to reveal both its costs and documented returns to the citizens of WA state so that objective evaluations and decisions can be made whether to continue their operation going forward.

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#1023327 - 03/02/20 09:26 AM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Salmo g.]
Tug 3 Offline
Returning Adult

Registered: 03/06/14
Posts: 260
Loc: Tumwater
I agree with what you said, Salmo. What if we went even further. How about changing our statutes/constitution to make the Director of Fish and Wildlife elected? Make it similar to DNR, so that citizen/voters can have direct say on how their natural resources are managed. Too far out? Hell, could it be any worse than it is now?

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#1023329 - 03/02/20 09:32 AM Re: LEGAL ACTION CHALLENGING SEASON SETTING PROCESS [Re: Rivrguy]
Salmo g. Offline
River Nutrients

Registered: 03/08/99
Posts: 13520
Tug, my only issue with having the Director being an elected position is that he or she would then likely be the hand-picked lackey of the seafood buyers and processors. That's where the money behind commercial fishing interests comes from, and because of AK they have a lot of it.

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