'Outsiders' could get $68 million in fishing fee refunds

Non-Alaska residents who bought commercial fishing permits and licenses from the state between 1984 and 2002 are due over $68.3 million in refunds for overpayments, plus interest, according to the first detailed accounting estimate in the 25-year old Carlson class action lawsuit against the Alaska Commercial Fisheries Entry Commission. Checks could be cut sometime after July 1, 2010.

The lawsuit, which has been the subject of four Alaska Supreme Court decisions, ended CFEC's practice of charging nonresidents three times the rates paid by Alaska residents for commercial fishing permit and licenses. The class of nonresidents in the lawsuit includes "all persons who participated in one or more Alaska commercial fisheries at any time who paid non-resident assessments or the State for commercial or gear licenses or permits."

The Sept. 4 posting on the CFEC web page lists 4,704 nonresident harvesters who would receive payments ranging from a high of $162,548.11 to a low of $51.41, including 45 persons who would receive $100,000 or more.

Ironically, only two of the original six plaintiffs to the case, not including namesake Donald H. Carlson, will get refunds. Warren S. Hart is estimated to be due $44,396.25 and Gerard Haskins would get just $2,734.34.

Carlson bought nonresident permits in 1983 and 1984 at the triple rate. The suit was filed in 1984 but not certified as a class until December 1984, and Carlson moved to Alaska and bought resident permits from 1985 onward. CFEC records list Carlson as a Palmer resident. He could not be reached for comment.

Stephen R. Libby also moved to Alaska in 1984 and paid resident permit prices. The other two original plaintiffs, Earl and Lyla Weese, paid less than the so-called allowable differential for nonresident fees and do not qualify for refunds under the payout formula.

After the state lost an earlier round of the case, the Legislature, in 2002, changed the CFEC rate schedule, allowing it to impose the highest fees on nonresidents allowed by law. That capped overcharges at $12.4 million. Interest totaling $55,865,092.18 as of Sept. 4 continues to accrue at 11 percent, compounded quarterly.

The high court's fourth ruling on the case allowed the equivalent of a 50 percent margin of error in the CFEC's refund calculation, which saved the state about $25 million, according to Department of Law spokesman Bill McAllister.

Last month the state was having the figures reviewed by a third party accounting firm in preparation for an Oct. 6 Superior Court hearing that could produce an order finalizing the payment amounts. Depending on future court rulings and the need for the Alaska Legislature to appropriate the money for refunds, actual payments to class members could be made as soon as the latter half of 2010.

"I think that's reasonably possible," said Lance Nelson, the assistant attorney general who has represented Alaska for much of the case.

"I can't document this, but I think the general goal of the court is probably, and the state and plaintiffs too, is to get this thing final either before the legislative session starts or early in the legislative session so the legislature would have an opportunity to look at the judgment and decide what it wants to do with it," Nelson added.

The Alaska Legislature is scheduled to reconvene on Jan. 19, 2010.

Loren Domke, the Juneau attorney who represents the nonresident class, declined to comment. On a recorded information line for class members, Domke warned, "It is important to remember these are preliminary calculations which have not been finally accepted by the state or by class counsel. A number of issues remain to be litigated, among them final amount to class members."

Although the high court ruled that the triple rate was too high, it determined that nonresidents can be charged more for their permits than Alaskans in amounts equivalent to the state's direct financial support for commercial fishing management, a portion of harbor maintenance and other expenditures that support the commercial fisheries.

Based on formulas approved by the court, the CFEC estimate indicates 7,182 nonresidents underpaid the state by $3.5 million. With interest the state lost a total of $24.5 million, but it has agreed not to seek retroactive payments for undercharges.