With the summer fishing season fast approaching in Alaska, the United Cook Inlet Drifters Association (UCIDA) was back in federal court this week demanding an immediate federal takeover of salmon management in the state’s most contentious fishery.
The organization, which represents 570 commercial fishermen who snag fish with gillnets in the nearly 200-mile-long Inlet that laps at the doorstep of the state’s largest city, has for years now been trying to overthrow state management.
UCIDA attorney Jason Morgan on Tuesday accused the state of “actively trying to put my client out of business.”
Their harvest represented more than 80 percent of the combined catch of commercial, sport, personal-use and subsistence fisheries in which tens of thousands of fishermen are active.
But the interest that has long held the biggest shovel in the sandbox contends it is no longer getting a big enough piece of the action and claims it is being further short-changed by state management – or mismanagement – that sometimes ignores maximum sustained yield principles in favor of protecting weak salmon stocks.
Given the issues in play involve state and federal waters, state and federal fisheries managers, five species of salmon, and at least four user groups, the situation is complicated. Basically, however, it boils down to this:
UCIDA believes that if federal managers use their authority over a band of water down the middle of the Inlet to leverage control of salmon management Inlet-wide, UCIDA members will get to catch more fish – and thus pocket more money – than they do now.
Bring in the feds
The organization has already convinced the California-based Ninth Circuit Court of Appeals to order the North Pacific Fisheries Management Council (NPFMC) to write a Fisheries Management Plan for the Inlet’s federal waters, but UCIDA was back before the court on Tuesday arguing the Council isn’t acting fast enough and broadly enough.
Morgan wanted the court to order a plan by this summer extending federal management from the middle of the Inlet all the way to the spawning grounds of the salmon in the headwaters of the many streams and rivers draining into the Inlet.
He accused the National Marine Fisheries Service, a U.S. Commerce Department agency which functions as the Council’s staff, of sitting on its hands.
“They just let the state do what it will,” Morgan told the three justices hearing his appeal. “By the time we get to a final agency action…there won’t be a commercial fishery in Cook Inlet anymore. It will be gone. It’s an important national resource….The state is running it out of business unsupervised by the National Marine Fisheries Service.”
The judges didn’t seem to be buying the pitch.
“I’ll be honest,” Justice Ryan Nelson told Morgan. “I read our prior opinion, and I didn’t see anything in it that that provided you a hook to be raising the arguments you’re now raising.”
The Appeals Court ordered the Council to come with a plan. The Council has been working toward a plan but finding the going hard as it wrestles with allocating salmon between commercial, subsistence, personal-use and sport fisheries.
“That’s being done,” Nelson said. “Didn’t the district court order them to get that done by the end of this year?”
Morgan conceded that was true, but pressed the argument to say the plan is taking far too long. Attorneys for both the federal government and state disagreed.
“The plaintiffs think that they’re going to do better, that they’re going to get a better stake if there’s federal management rather than state management,” state attorney Laura Wolfe told the justices, but the feds – like the state – are required to consider fishery conservation first and then weigh competing uses for whatever allowable harvest is available.
“Commercial fishing is one of the uses that’s in the national interest,” she said, “but so too is the economic and recreational benefits to local communities.”
Sport fisheries are the cornerstone of an $800 million recreational fishing industry in the waters around the Inlet. Personal-use fisheries provide local food security for “Alaskans gathering food for their pantries for the year,” Wolfe said. And subsistence fisheries have both state and federal priorities on harvests.
“Plaintiffs are giving the court a very skewed view,” she said; regulators can’t just ignore all the other stakeholders because UCIDA thinks those fisheries deserve fewer fish.
And as a purely legal matter, she added, there is an even bigger problem. The Appeals Court told the Council to write a management plan for federal waters. It was never told to include state waters or pre-empt state regulations or, for that matter, write regulations different from those of the state.
Fisheries Service attorney Ellen Durkee agreed. The court’s original order for a management “plan has never included state waters…It’s a very radical position,” she said.
The court’s order, she reminded the justices, called for federal regulators to come up with a plan for managing the fish in federal waters which is what they are trying to do. Federal control over salmon in state waters has never been litigated.
“The issue of whether Council would have authority….was not raised” she said.
Morgan wanted to know if the federal fisheries service had itself considered whether it had the authority to take over management of salmon from the ocean to the spawning beds. Durkee responded that could be the subject for a future lawsuit because it isn’t addressed in the suit now before the court.
Big mixed stock
Fisheries managers overseeing the Inlet – be they state or federal – are dealing with a commercial fishery that preys on a wildly mixed stock of salmon from hundreds of spawning streams.
Five species of salmon return to the Inlet – Chinooks (kings), sockeyes (reds), cohos (silvers), chums (dogs) and pinks (humpbacks) – but the drift netters are primarily interested in the high-value sockeyes and cohos.
Unfortunately, drift nets are among the fishing gear that has been described as “dirty.” The nets can to some degree select for salmon of a certain size, but they can’t distinguish between species.
Particularly on the Kenai River, home to a world-famous run of king salmon and the Inlet’s largest run of sockeye, this has led to problems. State efforts to meet spawning goals for kings have sometimes forced closure of commercial fisheries because of the associated bycatch of kings in commercial nets aimed primarily at sockeye.
Commercial fishermen see red when sockeye in excess of spawning needs make it into the river simply to minimize the king bycatch. To them, this is nothing but money out of their pocket.
To environmentalists, it is an ecosystem enrichment that feeds the bears, the eagles, the rainbow trout and dozens of other species while fertilizing the forests.
To sport fishermen, many of them non-residents on trip-of-a-lifetime excursions to Alaska – it is better fishing.
And to personal-use dipnetters – average Alaskans who swing, big hooped nets into the glacially turbid waters of the Kenai and Kasilof rivers – it is a better chance of filling the freezer with salmon for the winter ahead.
Nearly all of the sport and personal-use fishing – and a good part of the commercial fishing – takes place in state waters.
The state controls the water three miles from shore along the east and west sides of the Inlet, but a band of water within the federal Exclusive Economic Zone (EEZ) runs down the middle.
Since Alaska Statehood, the federal government had ceded management of salmon to the state Inlet-wide, but four years ago UCIDA challenged that as a violation of the Magnuson-Stevens Fishery Conservation and Management Act.
First passed in 1976, the legislation named for the late Sens. Warren Magnuson, D-Wash., and Ted Stevens, R-Alaska, created a Fisheries Conservation Zone (now the EEZ) extending seaward for 197 miles from where state waters ended off the U.S. Coast.
The Act was primarily aimed at gaining control over foreign trawlers then preying heavily on salmon and bottomfish stocks along the West and Alaska coasts. UCIDA hopes to now extend the reach of the Act to give the federal government broad new control over U.S. fishermen.
Before stepping into that deep water, Nelson suggested the court might first want to see how the Council and the fisheries service deal with the very complicated issues. It would be “really unusual,” he said, for the court to intervene to tell the regulators how to write a fishery plan.
Morgan countered that by doing anything less the court was encouraging federal authorities to continue “thumbing their nose at that” earlier decision.
“If you’re right, then we will slap them down,” Nelson said. “(But) we’re not going to do it until this final agency action. That’s not how it works.”