Court rejects federal fisheries takeover

Inspired by the belief of the outlaw Roland Maw that federal law dictates all salmon in Cook Inlet be managed to produce the maximum return of sockeyes to the Kenai and Kasilof rivers, primarily to benefit commercial fishing interests, the United Cook Inlet Drift Association (UCIDA) has wasted another big pile of cash in yet another failed lawsuit.

This is a process that has been going on for years now in both state and federal courts, where the 200-member group of commercial fishermen has won a few battles only to continue losing the war.

The latest loss comes in a federal case intended to force the National Marine Fisheries Service (NMFS), which an earlier UCIDA lawsuit dragged into the long-runing Inlet Fish War, to ignore a decision by the North Pacific Fisheries Management Council (NPFMC) to split in two the commerical salmon fishery in the 200-mile-long finger of water at the northeast corner of the Gulf of Alaska that stabs into the underbelly of the 49th state.

UCIDA won in its effort to bring in federal fishery managers, but then lost after the NPFMC decided the easiest way for the feds to manage salmon in the Inlet was to close fishing in federal waters and let the state handle the harvest of the fish in state waters.

This led to another UCIDA lawsuit that resulted in a federal judge, later destined to resign from office in disgrace, penning a convoluted decision that set the stage for the creation of two separate Inlet salmon fisheries – one managed by the state and the other by the federal government.

UCIDA subsequently went back to court again to try to force a merger of those fisheries with management authority put under the thumb of the feds.

The commercial drift gillnetters who make up UCIDA “maintain the Magnususon-Stevens Act requires that the (federal) Salmon Fisheries Management Plan must include measures that would apply to salmon ‘once they leave the (U.S.) exclusive economic zone (EEZ)’ and enter water under the jurisdiction of the state of Alaska because the state waters are part of the fishery,” federal District Court Sharon Gleason wrote in the latest opinion.

“Under (UCIDA’s) expansive definition, the FMP for the Cook Inlet EEZ would need to set standards for any location in which the salmon that travel within the EEZ and might be fished – including inland rivers and foreign waters.”

The EEZ governs waters from three to 200 miles of the U.S. coast. Water within three miles are under the jurisdiction of the various states. The federal waters in the Inlet form a large pool that stretches southeast from Kenai out into the Gulf.

The idea that federal management of those waters gives the feds say over salmon everywhere in Alaska originated with Maw, UCIDA’s former executive director. Maw holds a Phd in foresty and wildland management from the University of Alberta (Canada) and was for decades a professor at Lethbridge Community College in that province when not fishing in Alaska. He was also a member of the Alaska Board of Fisheries for a very short time before it was discovered he was claiming to be both a resident of Alaska and Montana in order collect benefits in both states.

Go away

Unfortunately for UCIDA, Gleason wanted no part of the idea that the pool of federally controlled water in the center of the Inlet gives the federal government much say over adjacent state waters and rendered a decision that disembowled UCIDA’s argument in favor of states’ rights and sound science.

NMFS had tried to get the state to join it in a joint-management plan for salmon in the Inlet, Gleason noted, but the state rejected that idea. The state, she added, was perfectly within its rights in doing so, and its decision made Inlet salmon management a whole different ballgame from what it is in the Pacific Northwest, where NMFS is collectively involved in salmon management with the states of Washington and Oregon.

This led her to reject UCIDA’s argument that what was being done Outside, as Alaskans refer to the Lower 48,  set a precedent for how a similar fishery should be managed in Alaska.

“In this case,” she wrote, “it was not practicable to adopt a fishery management plan with measures applicable to state waters because the state of Alaska has declined to accept or implement delegated management measures…(and) nothing in the text of the Magnuson-Stevens Act (MSA) requires NMFS to include management measures for waters within the state of Alaska’s jurisdiction.

“The MSA preserves state jurisdiction over fisheries in the waters from the Alaska coastline to three nautical miles seaward. While the MSA contemplates cooperation between state and federal fisheries managers and permits the delegation of management pursuant to a fisheries management plan to state authorities, nothing in the MSA requires such an arrangement.”

Having thus tossed the idea of an Inlet-wide takeover of salmon management by the feds, Gleason went on to take a swipe UCIDA’s favorite straw man – “overescapement,” a fancy word used to describe too many salmon escaping the nets of commercial fishermen to spawn in a stream or river.

Overescapement can, at some point, so crowd the spawning grounds with adult fish that spawning is disrupted or lead to the subsequent birth of so many young that aquatic nurseries are overwhelmed and salmon production declines.

Such declines are measured in “returns per spawner.” The average return per spawner for late-run sockeye on the Kenai from 1968 through 2014 averaged 4.4, according to an Alaska Department of Fish and Game study, but the range over the years has been great.

The year 1982 saw a return of more than 12.7 salmon from the spawners of previous years while in 2012 the return was but 1.2, a better than tenfold difference. UCIDA has argued low return years are a result of too many spawners being allowed past commercial nets and into the river – ie. overescapement – but the data doesn’t support that argument.

In her decision, Gleason decided to go with the scientists and the data rather than the feelings of UCIDA members.

Tne NPFMC’s “Scientific and Statistical Committee reviewed an independent analysis of whether there had been reduced yield as a result of overescapement in Kenai and Kasilof river sockeye salmon stocks and ‘found that [Alaska’s] escapement goals were established within the range expected to produce maximum sustained yeild (MSY) for those stocks, that [Alaska’s] point estimates of MSY were accurate, and that there is limited evidence for [reduced yield due to overescapement] across the observed range of escapements for Kenai and Kasilof sockeye salmon.”

But she didn’t stop there. She went on to slap down UCIDA’s idea that maximizing sockeye salmon production in the Kenai and Kasilof rivers should be the tail that wags the dogs of Inlet-wide salmon management.

NMFS, she wrote, “as explained in Amendment 16…’evaluated historical EEZ harvest levels and found that harvest in the EEZ could not be increased to fully harvest surplus Kenai and Kasilof salmon without causing serious impacts to other salmon harvesters and major conservation problems for other stocks.'”

Or in other words, what happens in the EEZ doesn’t stay in the EEZ. There are ripple effects from harvests there that have consequences for salmon in other Kenai Peninsula streams, mainland Alaska streams on the west side of the Inlet, and in the maze of rivers and streams that empty into the vast Susitna River watershed at the head of the Inlet.

Not to mention the Inlet’s endangered beluga whales that depend on salmon for food.

In tossing UCIDA’s suit “with prejudice,” Gleason also made it clear she didn’t want to see the group back in her courtroom.

UCIDA could now appeal, yet again, to the Ninth Circuit Court of Appeals, but those jurists might be getting a little tired of listening to the complaints of a couple of hundred commercial fishermen who believe they own the salmon of Cook Inlet and that salmon management – whether state or federal – should reflect this view.

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