Less than two months after Cook Inlet commercial drift gillnet fishermen hailed a major victory for their fishery in federal waters, the commercial fishermen who set gillnets along the Inlet’s eastern shore have suffered a crushing defeat before the Alaska Supreme Court.
In an opinion issued Friday, the court firmly slapped down their efforts to force the Alaska Board of Fisheries and the Alaska Department of Fish and Game to open nearshore fisheries closed to protect Chinook salmon.
The setnetters’ indiscriminate, monofilament gillnets anchored off the beaches catch mainly sockeye salmon, but fishery managers say the bycatch of Chinook – the biggest and most prized of the Pacific salmon – is such that minimum spawning returns to the Kenai River cannot be met if the setnetters fish.
The Supreme Court upheld a lower court ruling that the state has the authority to shut down the fishery to protect those Chinook, or what Alaskans commonly call “king salmon,” and basically called nonsense on the setnetters’ argument that an in-river dipnet fishery allowed to fish despite the setnet closure violates the constitutional rights of non-residents.
An attorney for the setnetters cited the dipnet fishery in an effort to monkeywrench the system with the argument that banning nonresidents violates the commerce clause of the U.S. Constitution even though the fishery involves no commerce. Personal-use regulations ban the sale or barter of dipnet caught fish.
Allowing non-residents into the fishery would likely cause chaos.
State licensing records show the state sold almost three-and-half times as many fishing licenses to non-residents than residents prior to the pandemic. And though Covid-19 hit the tourism industry hard, forcing the sale of non-resident fishing licenses to nosedive to only slightly above resident sales in 2019 and 2020, the tourist fishermen are now coming back.
With the comparatively tiny portion of the Kenai open to dipnetting in the month of July already crowded at times, adding thousands of additional fishermen to the mix would be almost certain to cause problems.
The state’s high court justices tossed the dipnet argument on a technicality, observing that the “Cook Inlet Fishermen’s Fund (CIFF) did not challenge the constitutionality of the fisheries in its complaint, and never
substantively briefed or argued before the Superior Court that Alaska’s resident-only personal use fisheries violate the Commerce Clause” of the U.S. Constitution.
But the justices didn’t stop there.
They made crystal clear their opinion the state is under no obligation to manage its fisheries ‘in the broad national interest,” which is at the heart of the CIFF’s argument for letting nonresidents into the dipnet fishery and allocating the lion’s share of the Inlet sockeye harvest to about 1,200 fishermen in the business of killing salmon for sale to, in CIFF’s view, “feed the nation.”
Cook Inlet produced about 3 percent of the Alaska sockeye salmon harvest last year. The National Fisheries Institute says Americans consume 2.83 pounds of salmon per year of which about two-thirds is farmed salmon, according to the latest research.
If the country is counting on the commercially caught salmon of the Inlet to feed it, the nation’s obesity epidemic is destined to come to a quick end.
And the reality is that the dipnet fishery and “feeding the nation” are side issues that really have little to nothing to do with the real problems in the Inlet.
Bycatch, bycatch, bycatch
The big problems are linked to the widespread decline of Chinook salmon productivity all around the Pacific rim – which some scientists believe could be the result in part of a massive pink salmon ranching operation run by Alaska commercial fishermen – and the unwillingness of commercial setnetters to find a way to fish cleaner.
The setnet fishery was closed early this year, as it has been closed periodically in past years, only because of its significant Chinook bycatch.
From 1954 through 2011, setnetters reported an average catch of one king for every 132 sockeye, according to state data. They were this year reporting a significantly reduced harvest of one king for every 342 sockeye although kings appeared to be entering the Kenai at the rate of one for every 139 sockeye.
The lower ratio raised some questions about the possibility of unreported harvests of Chinook, but even at 342 sockeye per king, the shore-based setnet fishery catches the biggest of the salmon at a rate more than 10-times greater than the driftnet fleet fishing sockeye offshore in the Inlet.
And this is the essence of the fishery management problem facing state fishery biologists trying to preserve a once world-famous return of oversize, late-run Kenai Chinook while maximizing the harvest of sockeye, the money fish in the commercial fishery and the bread-and-butter of the dipnet fishery.
The agency can close the in-river sport fishery for king salmon and cut the kill there to near zero. It can require dipnetters to roll back into the water alive the few kings they do catch. And it can accept that to maintain a viable commercial fishery in the Inlet, there is going to have to be a tiny catch of kings in the drift gillnet fishery.
The big problem arises with the much larger catch in the setnet fishery. Shallower nets have been suggested, and in some cases ordered, to try to minimize the bycatch due to indications those nets can catch sockeye while allowing deeper swimming kings to slip beneath.
But the setnetters largely loathe the idea and would prefer to blame their problems on the sport fishery, and the dipnet fishery that is an ironic outgrowth of an Alaska-specific “subsistence” protection written into the Alaska National Interest Lands and Conservation Act passed by Congress and signed into law by President Jimmy Carter in 1980.
Like subsistence fisheries, the personal-use fishery provides Alaska residents an opportunity to fill their freezers with salmon in a land where, as the federal law put it, “the situation…is unique in that, in most cases, no practical alternative means are available to replace the food supplies and other items gathered from fish and wildlife” exist.
Subsistence for all
The only real difference between federal subsistence and the state’s personal-use fishery is that the former provides a priority for rural residents.
Such discrimination based solely on basis of residence is illegal under the state Constitution. according to the Alaska Supreme Court, which in 1989 ruled that all Alaskans are entitled to vie for opportunities to hunt and fish for subsistence, but added that the Alaska Boards of Fisheries and Game could not use a rural preference to determine who qualifies for subsistence when the resource supply fails to meet the human demand.
The ruling immediately changed the nature of the Kenai River dipnet fishery which up until then had been an on-and-off option for allowing Alaskans to scoop up some salmon with a net when there were so many fish returning the commercial fishery couldn’t do enough to control the number entering the river.
With plenty of Kenai salmon available, the court ruling forced creation of a new, Kenai subsistence fishery. Such a fishery with a harvest priority sent shivers down the spines of commercial fishermen who envisioned hoards of people from the Anchorage Metropolitan Area, home to a half to two-thirds of the entire state population, descending on the Kenai Peninsula to claim the entire, harvestable surplus of returning salmon.
Bowing to these and similar fears from Fairbanks hunters that any sort of subsistence priority – whether based on residency, income, hunting history or other criteria – could end up depriving many of them of the opportunity to hunt the vast open areas adjacent to their federally “non-rural” city in Central Alaska, the Boards of Fish and Game in 1992 created non-subsistence areas surrounding Fairbanks and Anchorage with the latter stretching south to cover most of the Kenai Peninsula.
As a compromise for thus eliminating the subsistence priority, and to help ensure what is now called “food security” for Alaskans living in the Anchorage and Fairbanks areas, the Fish Board replaced the Kenai subsistence fisheries, along with one on the Copper River to the east, with personal-use fisheries lacking a priority and run under permit systems with limits on how many fish could be caught and with the further stipulation that none of those fish could be sold or bartered.
Still, they tolerated such harvests when sockeye returns to the Kenai were large, but have become less tolerant as the returns have shrunk due to poor ocean survival of the fish.
Dipnet harvests have reflected the downturn in returning salmon as well. The five-year average catch through 2021 on the Kenia River is under 276,000 fish per year or just over 50 percent of the peak harvest of 537,765 in 2011.
They are expected to have down better this year with the setnet fisheries shutdown.
What happens next year in the “fish wars” that have raged for decades in the Inlet is unknown, but angry commercial fishermen have been spending more time in court than on the water as of late.
The setnetters are again before a state Superior Court judge trying to overturn state management decisions, and the driftnetters continue to battle with the North Pacific Fisheries Management Council and the National Marine Fisheries Service in federal court because of the former’s decision to close the federal waters of the Inlet to commercial fishing.
The Council – well aware of the headache of managing the contentious Inlet fisheries – had delegated management authority to the state, but after a federal judge ruled that a no-no, the Council voted to simply close the federal waters in the Inlet and let the state manage the harvest in the adjacent state waters out to three miles from shore.
The drifters managed to get another judge to overturn that decision and are now, like the setnetters, pushing for federal management in line with the “national interest.”
State Supreme Court justices made it clear they are not fans of that idea and see no legal basis for it.
They noted that the Alaska Statehood Act specifically stated that federal management of Alaska resources was to end as soon as the “Secretary of the Interior certifies to the Congress that the Alaska State Legislature has made adequate provision for the administration, management, and conservation of said resources in the broad national interest.”
Three months after the Statehood Act was signed into law, the justices wrote, the Alaska Legislature “enacted House Bill 201. The bill contained no substantive fishery rules or regulations – aside from provisions governing licensing and fees – but it did create both the Board of Fish and Game and the position of Commissioner, and it gave the Board the authority to, among other things, ‘establish open and closed seasons and areas for fish and game,’ ‘establish the means and methods employed in the pursuit, capture, and transport of fish and game,’ and ‘investigat[e] and determin[e] the extent and effect of predation and competition among fish and game in Alaska and exercise such control measures as are deemed necessary to the resources of the state.
“House Bill 201 was sent to then-Secretary of the Interior Fred Seaton, who, upon reviewing the legislation, ‘certified [to Congress] that the Alaska State Legislature ha[d] made adequate provision for the administration, management, and conservation of the fish and wildlife resources of Alaska in the broad national interest.’ The transfer of management from the federal government to the State therefore took place, effective January 1, 1960.
“Secretary Seaton’s certification meant that Alaska, having satisfied the statutory preconditions, received the promised control of its fisheries. That transfer of authority did not, as CIFF appears to argue, include a perpetual state obligation to manage salmon under a national standard.
“Our conclusion is supported not only by the plain language of the Alaska Statehood Act but also by legislative history, which shows that Congress did not intend to impose ongoing specific burdens on state management of fisheries, but only to require that Alaska demonstrate the ability to perform that management function.”
The justices then quoted the late Rep. Thomas Pelly, R-Wash., one of two Washington Congressmen who authored the resource management language in the Statehood Act, explaining Congress’s intent that “[t]he amendment simply would assure state management and regulation that will uphold and conform to the new proposed constitution of the State of Alaska which provides for common use of natural resources.”
This observation was underlined by the late Rep. Jack Westland, R-Wash., the other Washington-state Congressman involved in drafting the amendment, who was quoted saying, “Let me emphasize that this amendment sets up no bar to future control of these resources by the State of Alaska.”
The Alaska high court justices concluded the legislative history shows “Congress’s concern about Alaska’s lack of its own fisheries management scheme at the time of statehood, but it fails to show any Congressional intent that national standards would continue to control once the State effectively took responsibility….” and once Seaton certified Alaska compliance with the Statehood Act, “the State had no ongoing commitment under the Alaska Statehood Act to manage that resource in the ‘broad national interest.’
“We reject CIFF’s argument that the ‘broad national interest’ governs Alaska’s fisheries management decisions.”
The esoteric segment of the dispute focused on the “national interest” is interesting in that Alaska has taken the brunt of “national interest” actions as the country’s regulatory climate has steadily nationalized over the past five decades.
“How many federal preemption statutes, broadly defined, has Congress enacted?” he asked there. “The only authoritative answer to that question was supplied in 1992 by the United States Advisory Commission on Intergovernmental Relations (ACIR.) The commission’s compendium painted an astonishing picture. There were more preemptions (of state’s rights) between 1960 and 1969 than in any previous decade, but what happened during the 1960s pales in comparison with the explosion that followed. More preemptive laws were piled on after 1970 than in the entire preceding history of the Republic.”
There is no reason to believe state management of Alaska salmon couldn’t be next, although the sitting U.S. Supreme Court has been pushing back against the idea federal rules should reign supreme on almost everything.
Against that backdrop – which includes the recent ruling on abortion that has rocked the nation and an earlier Alaska ruling that a statehood grant of ownership of the riverbeds beneath navigable waters meant Alaska, not the National Park Service has the management authority over those waters – the claim to a national interest in Alaska fishery harvest floats on interesting waters.
As a purely legal matter, this idea didn’t arise until well after passage of the Alaska Statehood Act.
It wasn’t until 1966 that Congress passed a law to regulate offshore fishing – that beyond the historic three-mile limit in which fisheries were managed by the states – and then it did so primarily to force out foreign fishermen.
“An unpublicized American offensive in a ‘wet war’ at sea is now gathering momentum as Coast Guard cutters and aircraft patrol the North Pacific in search of foreign fishing vessels operating in violation of treaty or federal statute,” Edward Oliver wrote in the San Diego Law Review five years later. “The offensive was triggered in April 1966 when a foreign fishing fleet of over 500 Russian and Japanese vessels systemically swept the waters of the Gulf of Alaska and the Pacific Coast. Often. in sight of the Oregon and Washington coasts, the threat to depletion of salmon, hake, and other fish stocks was apparent.”
Four years after that was written, the U.S. Supreme Court turned back an attempt by the state of Alaska to claim all of Cook Inlet as a “historic bay” but made no mention of fisheries jurisdiction other than to observe that the federal government had managed the fisheries of the Inlet prior to statehood and Alaska, “during its statehood, has enforced fishing regulations in the same way as the United States ….”
No one raised any objection for the next 50 years.
The Inlet ruling itself had focused solely on who owned the potentially oil-rich seabed more than three miles seaward of Kalgin Island, which “marks the limit of the portion of the inlet that qualifies as (state-controlled) inland waters,” the Supreme Court noted. The state had sought to sell oil leases in that area.
At the time commercial fishing interests held even more political influence with the state Board of Fisheries than they do now, and the only people even talking about federal intervention in Inlet fishery management were a handful of anglers troubled by the then-demise of Chinook salmon.
With Inlet kings in crisis in the mid-1960s, they did manage to convince the state Board to close sport-fishing for kings in all Cook Inlet waters from 1964 to 1966 but commercial fishing continued, albeit sharply restricted.
Sport fisheries were slowly reopened as Chinook returns improved due to a warming Gulf of Alaska and the removal of foreign fishing fleets off the Alaska coast, but harvest limits remained sharply restricted and continue so to this day with anglers limited to one fish per day, and two to five per season depending on the fishing area.
The idea that Inlet salmon should be managed in the “national interest” appears to have been eventually born from the language of the Sustainable Fisheries Act of 1996 that called for “national fishery conservation and management standards to: (1) provide for the sustained participation of fishing communities and minimize adverse economic impacts on those communities; (2) minimize bycatch and its mortality; and (3) promote the safety of human life at sea.”
Commercial fishermen are now trying to use the first of those standards as a lever to prevent the state from shifting salmon harvests toward the personal-use fishery, which feeds Alaskans, and now tourist-dominated sport fisheries that have been shown to provide beneficial economic impacts on Kenai fishing communities.
The Sustainable Fisheries Act was itself an amendment to the Fishery Conservation and Management Act of 1976, which saw all Alaska fishing interests united in an effort to force foreign trawlers, mainly Japanese and Russian, 200 miles off the Alaska coast.
Since then, Alaskans have spent a lot of time fighting among themselves about fisheries management, and Seattle-based businesses have taken over from the Japanese and Russians offshore to earn about $1 billion per year trawling for pollock and other groundfish, according to the National Oceanic and Atmospheric Administration (NOAA).
It is unclear if they are operating in the “national interest,” or simply doing what businesses do, which is to try to make money.