Update, Aug. 5, 2019:
Judge Jason Gist today issued an 11-page decision wherein he point-by-point rejected just about every complaint made by the Cook Inlet Fishermen’s Fund, and then summed the essence of the case in one concise paragraph:
The judge did note that he felt the fishermen’s pain, writing that his order was not meant to “minimize the financial impacts on CIFF members in any way. However this court cannot find that the potential harm to the late-run Kenai River king salmon, as evidenced by ADF&G’s fish numbers presented, is ‘relatively slight in comparison’ to CIFF’s financial losses.
CIFF members might be losing revenue, the judge argued, but all Alaskans lose if the highly valuable stock of Kenai kings is further depressed by overfishing. Putting too many sockeye in the river – over-escaping the river in the jargon of fisheries management – might reduce the size of future sockeye,” he observed, but “under-escapement of late-run kings may very well lead to the depletion of the fishery altogether.”
The river witnessed a spurt of fish on Monday – with the daily count jumping from Saturday’s 152 to 303 – but it is still lagging more than 3,500 fish behind the minimum goal. Sport fishing for kings in the river closed at midnight on Wednesday.
Today’s regularly scheduled opening of the commercial set gillnet fishery was closed to prevent the by-catch of kings still trying to make it back to the river along with the continuing flow of sockeye salmon.
There is still hope of meeting the lower goal. More than 5,000 kings showed up after Aug. 4 last year to boost the total return to almost 17,000 in 2018. That’s below the midpoint in an escapement goal of 13,500 to 27,000 big kings, but a still satisfactory return.
The king run was once thought to be largely over by the end of July, but sonar counters have over the years found increasing numbers of later-arriving fish. Even if the late return is fewer than 4,000 – as it was in 2017 – the fish could squeak over the minimum.
Cook Inlet commercial fishermen may have lost more than $10 million worth of sockeye salmon because of state efforts to protect Kenai River kings, an attorney for the Cook Inlet Fisherman’s Fund (CIFF) told a Kenai Superior Court judge on Thursday.
And for that reason, CIFF attorney Carl Bauman said, Judge Jason Gist should order the Alaska Department of Fish and Game to lift restrictions on commercial fishermen.
Without such an order, Bauman argued, the Inlet’s 1,100 commercial fishing permit holders will suffer lasting losses because of the lack of state funds to reimburse them for the fish they might have caught and sold.
“There’s no money there,” Bauman said. “It is irreparable harm if you’re never made whole for your economic losses.”
A showing of irreparable harm is the standard that must be met to get Gist to approve a temporary restraining order (TRO) immediately constraining state fisheries management. The judge said he hoped to issue a ruling on the case by Friday and if not by Monday.
Gist did, however, sound skeptical about giving the fishermen what they want. He said his primary concern upon being handed the case was whether he was going “to be substituting my judgment for that of biologists who manage these fisheries.”
Upon examing the case law, he added, he found the Alaska Supreme Court had in several cases decided that was a role judges should avoid.
“It sort of reaffirms my initial hunch,” he confessed.
Bauman was non-plussed. Previous cases decided by the high court were, he said, different because times were different.
“At a higher level, politically, the winds have shifted,” he said before alluding to political contributions sportfishing interests made to newly elected Republican Gov. Mike Dunleavy.
“Is that really permeating and effecting an even-scale application of the emergency order” authority of Fish and Game? Bauman asked, and then answered with the observation that his clients believe they’ve seen a shift in the management approach.
The attorney then painted a grim picture of a Kenai Peninsula economy decimated by state fisheries management.
“There used to be over a magnitude of 30 canneries in this area,” he said. “There are four now.”
That is largely true, but the reality is the economic change came long ago because there were no fish for anyone. The average sockeye catch from 1969 through 1975 was 685,000 per year.
The 20-year average for the ’60s and ’70s combined was 1.2 million a year. Ever better state management and a warming environment boosted the catch to more than 3 million per year since with the peak coming at 4.4 million per year in the 1980s.
Catches have slumped in this decade. But, in general, state management since the ’80s has been good to commerical fishermen.
More than 80 percent of the increase in sockeye harvests went into the holds of their boats while the subsistence, personal-use and sport fishermen in Alaska who voted in limited entry to help out commercial fishermen got less than 20 percent.
Commercial fishermen became accustomed to the years of bounty, which has served to heighten expectations.
“We don’t want to see the king run unduly hurt,” Bauman said, but argued it is unfair to ask commercial fishermen to forego sockeye harvests to protect another species of salmon. He did not mention the king has been the official state fish since 1962, or that a state law governing the management of mixed-stock fisheries makes conservation the “highest priority.”
A Kenai sonar counted 9,118 big kings in the Kenai River as of Wednesday. A normal run is by then 61 percent complete. If the run is normal, the count is now projected to reach 14,900 – just above the minimum in a spawning escapement range of 13,500 to 27,000.
But the run peaked on July 21 and has been falling fast. Kenai setnetter Todd Smith reported he didn’t see a king show up in his nets south of the river all week.
The rapidly declining return has forced consideration of the possibility the run was a little early. If it was as little as two days ahead of schedule, the computer projection falls to 13,800 in-river, and that count is before an in-river harvest that could reach 800 kings over 34 inches in length.
The 34-inch length is an arbitrary standard now being used to make it easier to count the fish with a sonar that can’t tell a king from a sockeye from an overgrown pink salmon.
A catch of 800 would put the river below the escapement goal. Commercial fishermen have at the latest count caught nearly 2,300 Chinook, as kings are called elsewhere along the West Coast. Commercial fishermen argue, however, that most of those are under 34 inches.
A wide variety of studies have found that, in general, big salmon of all species are more productive than small salmon, but the small fish can add to production. Scientists studying Chinook in California found spawners shorter than 21 inches, but noted those fish carried only about half the eggs of big fish and their eggs had less chance of survival.
Still, they concluded the grilse (Chinook spending only a year at sea before maturing) of the Mokelumne River “should be included in the sampling regime and in the length/fecundity models to provide better estimates of Chinook salmon…production.”
Their model for predicting future returns was 11 percent better when grilse productivity was included, they reported. The state of Alaska considers kings of less than 20-inches to be predominately mature males – or jacks, as they are commonly called – and allows their harvest even when the fishery for bigger kings is closed, but there is little angler demand for king salmon of pink-salmon size, and the fish are small enough to squeeze through gillnets.
While Bauman was attacking the unfairness of it all with his clients portrayed as the victims of egregious decisions made by state fisheries biologists responding to political pressure from anglers and personal-use dipnetters, state attorney Jeffrey Pickett countered that what the state was trying to do was make work a management plan approved by the Alaska Board of Fisheries.
The Board is an independent body established by the Legislature to try to remove politics as much as possible from the process of allocating fish and wildlife resources. Much of the job of the Board comes in deciding how to distribute a limited number of salmon between a whole bunch of competing interests.
“The Board is acting lawfully,” Pickett said. “It is granted explicit authority to do that….It is making, essentially, economic choices.”
If the Board establishes a minimum escapement goal for kings as a prime objective, and sockeye sneak past commercial fishermen because indiscriminate gillnet harvests have to be restricted, “they aren’t harmed,” he said. “They just aren’t as able to catch as many fish.”
If any group that doesn’t catch as many fish as it wants can argue it has been financially harmed, he added, the Alaska court system is going to be busy.
Gist wanted to know if state managers were following Board guidelines. Picket said they are doing their best.
“What the Board has done is give the commissioner a great deal of discretion,” he said, and “nothing the plaintiffs have brought up suggests the system has been misused.
“All they’ve really said is ‘we don’t get to catch as much fish as what we’d like to.'”
When Gist pushed Pickett about whether the state could help out commercial fishermen – who’ve caught more than 1.35 million sockeye to date (or more than 1,200 per permit holder) – by extending their season beyond Aug. 15 or removing a rule shutting down sockeye fishing if too many coho salmon start to be caught, state attorney Aaron Peterson jumped in.
“It’s a lot more complex than that,” he said. “We don’t look at regulations in a vacuum.”
Cook Inlet is a complicated, mixed-stock fishery. The state agency walks a fine line between underharvesting big runs of fish, like Kenai sockeye, and overharvesting a variety of weaker runs, mainly Kenai kings and coho (silver) salmon, and Susitna Valley sockeye and coho.
“They can’t just say, ‘there’s still sockeye in the Inlet, let’s let the commercial fishermen go get ’em,'” Peterson said, adding that the traditional end date to the sockeye season was previously shifted from Aug. 10 to Aug. 15. That happened in 2008 because sockeye runs appeared to be pushing longer into late summer. The Board, he said, made the change at the request of commercial fishermen after fishery managers concluded the coho catch would increase only minimally with such an extension.
The essence of the state argument was that in an unfair world the system is about as fair as humanly possible.
But it doesn’t feel fair, CIFF attorneys argued. Becuase of all the sockeye in the Kenai, the dipnet fishery was allowed to fish 24-hours per day for the last four days of a season leading into Wednesday night’s annual closure. The rod-and-reel limit for Kenai sockeye was increased from three to six fish per day on Sunday. And the in-river fish for kings was allowed to run until its traditional July 31 close.
Commercial fishermen, however, got no bonus out of 2019’s healthy return of sockeye although they are still fishing. Thursday was a regular fishing period, which had a healthy catch of 127,000 sockeye with some fish tickets yet to come in. There is an emergency order (EO) allowing fishing on Friday.
More EOs are expected if the sockeye run continues strong. The harvest is already more than half a million sockeye above the meager catch of 815,000 last year, has topped the 20-year average for the ’60s and ’70s, and appears likely to come close to the 1.8 million catch of 2017.
But there are those hundreds of thousands of fish trailing that $10 million price tag that got away.
Correction: An early version of this story misplaced Todd Smith’s setnet site.