Backed by the conservative Pacific Legal Defense Foundation, three Homer fishermen have gone to court to try to overturn the pending closure of commercial salmon netting in the federal waters of Cook Inlet.

On its face, some have observed, the challenge to the authority of the powerful North Pacific Fisheries Management Council (NPFMC) – the council “family” as it has labeled itself – appears doomed.

But much the same was said when another group of commercial fishermen unhappy with how the state was allocating salmon harvests between commercial, subsistence, personal-use and sport fishermen sued to force a federal takeover of salmon management beyond three miles offshore in the Inlet.

They won that lawsuit only to lose big time.

A federal court judge ruled that the NPFMC couldn’t simply abdicate to the state the authority to manage salmon in the federal waters – those more than three miles offshore – in Alaska.

A bit of chaos ensued.

The National Marine Fisheries Service, an agency of the Department of Commerce that theoretically oversees the NPFMC, subsequently oversaw a lengthy examination of the Inlet salmon fishery to try to develop a plan for federal management, which is confined by a whole lot more complicated rules than state management.

As is the norm with almost anything the NPFMC has done in its history, the deck was stacked for the exercise.

Commercial interest win and lose

A committee set up to come up with a plan included three of the top four officials of the United Cook Inlet Drifters Association (UCIDA), the most powerful commercial fishing lobby in Southcentral Alaska; a retired teacher from the Homer school district who now teaches in rural Alaska but commercial fishes the Inlet in summer; and a “community fishery organizer” for a non-government entity (NGO) dedicated to promoting commercial fishing in the 49th state.

The committee contained not a single representative of the sport, personal-use or subsistence fishermen at the mercy of gillnet fisheries that can sometimes seriously reduce the flow of salmon into rivers throughout the state’s Southcentral region.

In naming the policy-setting group, council chairman Dan Hull, a commercial fisherman based in Anchorage, said “my selection of this initial group of Salmon FMP Committee members focuses on the primary affected stakeholders, the Cook Inlet drift gillnet permit holders, who fish in the EEZ (exclusive economic zone) waters of Cook Inlet.”

Some of the options the group came up with would clearly have benefitted commercial fishermen, but federal officials cautioned that big problems could arise in trying to force the state’s flexible salmon management system into the rigid catch-limit and total-allowable-catch standards of the Magnuson-Stevens Fisheries Conservation and Management Act governing federal waters. 

That led state officials offer a simple solution:

Close the federal waters and let the state take care of seeing to it that adequate numbers of salmon were commercially harvested in the state waters that comprise most of the Inlet.

A politically savvy NPFMC, worried that going too far in favor of commercial fishermen in the Inlet – the site for a reality TV show aptly named “Fish Wars” – might anger the sleeping giant of sport, personal-use and subsistence fishermen who catch Inlet salmon, latched onto the easy out.

The Inlet’s commercial fishermen have historically caught 70 percent or more of the Inlet’s returning salmon. There are about 1,100 of them.

The other 30 percent or less of the salmon have been shared by tens of thousands of Alaska resident personal-use, sport and subsistence fishermen, plus tens of thousands of non-resident sport fishermen.

The latter drive a thriving tourism industry on the Kenai Peninsula.

The NPFMC’s decision was – as many if not most NPFMC decisions are – obviously political.

And therein rests the major legal issue to which the Pacific Legal Foundation has attached its lawsuit.

Vast powers

“The North Pacific Fishery Management Council has vast powers to destroy our clients’ decades-long careers,” Pacific Legal Foundation attorney Michael Poon said in a statement posted on the organization’s website. “The Constitution says that such significant federal powers must be stewarded by officials who are appointed by the president and confirmed by the Senate. This ensures both political accountability and quality control in decision-making.”

“Wes Humbyrd, Robert Wolfe, and Dan Anderson (the plaintiffs in the case) are fishermen who make their livelihoods engaging in this integral part of Alaskan identity. For decades, Wes, Bob, and Dan have fished for salmon in Cook Inlet, investing their lives in a craft that feeds their communities, their families, and themselves,” the lawsuit itself says. 

“In December (when the Council family’s action of last year take effect) this time-honored way of life will be permanently wiped
out from Cook Inlet.”

This is not quite true. Fishing will be eliminated in the federal waters that make up the center of the Inlet that jabs into Alaska’s underbelly to lap at the shores of the state’s largest city.

The state intends to continue to prosecute the fisheries in state waters within three miles of the Inlet’s shores, but there is no denying the suit’s second claim that the action is happening “simply because the government finds it too bothersome to coordinate with the state of Alaska in managing the fishery.”

And this is where things get interesting.

The Foundation goes on to argue the decision violated “the Constitution’s Appointments Clause and Take Care Clause. These
“essential” structural provisions of the Constitution are accountability-preserving mechanisms.

“Their basic function is to ensure presidential control over the agents who exercise executive power on his behalf.

“The Appointments Clause reserves the exercise of significant federal power, including rulemaking and policymaking power, to ‘Officers of the United States.” Such officers must be appointed by the President with the advice and consent of the Senate, except that Congress may by law vest the appointment of ‘inferior’ officers in the President alone, the courts of law, or the heads of departments.

“These limitations make the President responsible for the selection and oversight of executive officials with significant power; and the American people can then hold him
responsible for poor appointments.”

Beholden to who?

Council members are not so appointed and, “10 of the 11 members of the Pacific Council enjoy such strong tenure protection that they cannot be effectively overseen,” the suit says. “Seven members cannot be removed unless a Council supermajority consents or if the members violate
certain financial conflict-of-interest provisions. Some members cannot be removed at all. These protections, by stymieing the President’s efforts to oversee the members’ duties, violate the Take Care Clause.”

A former member of the Council “family” once described the NPFMC to this reporter as “basically legalized corruption.”

Alaskans involved, or formerly involved, in the halibut sport charter fishing business know better than anyone how the system works. Before taking halibut away from them and giving the same halibut to commercial fishermen, the council blatantly refused to conduct an economic valuation to determine where the fish were worth more.

Its argument was that the study was “too complicated.” The real reason was that the fix was in. That is the way the Council has operated almost since its inception.

A legal probe into the dark corners here could prove very interesting, but for the commercial fish interests involved, it could well backfire again.

The PR spin of the moment – “these fishermen are asking a federal court to restore their right to earn an honest living without interference by an illegally formed agency and its equally unlawful regulation” – might sound good now, but a deep, court probe of how the commercial fishing industry has manipulated the NPFMC for years could well turn into a nightmare for the industry.