The Supreme Court of the United States has put an end to the maximum-sustained-yield (MSY) dream of disgraced Alaska Board of Fisheries member Roland Maw and the commercial fishermen of Cook Inlet, who spent untold thousands of dollars pursuing his fantasy.
The ruling came just days before the National Oceanic and Atmospheric Administration (NOAA) turned down a petition to list Alaska chinook salmon as endangered, which would have left federal officials entangled in state management all across Alaska.
Both rulings were generally expected by those who closely monitor state fishery politics. King salmon are struggling statewide, but populations appear generally stable, albeit at new, lower levels of abundance. And the Cook Inlet Fishermen’s Fund had lost so many times on its push for federal management that its appeal to the federal Supreme Court of the United States (SCOTUS) appeared the longest of long shots.
But that didn’t stop it from pursuing the Maw-inspired dream that the federal government could be forced to take over management of salmon in the Inlet and the waters draining into it, and once it did so, federal managers would be legally required to follow federal mandates requiring they manage all fisheries for MSY.
The goal of the litigation was simple, but it wasn’t about a bounty for all Alaskans as Maw, the United Cook Inlet Drift Association and commercial fishermen tried to portray via a drone of complaints about “over-escapement” of sockeye salmon into the Kenai River making the river less productive.
It was about trying to ensure commercial fishermen caught more sockeye salmon and made more money by slowing the escapement of those fish into the Kenai and Kasilof rivers.
Escapement is the term fisheries biologists use for the salmon that get past the nets of commercial fishermen to make it back to the rivers of their birth. In the case of the Kenai, commercial fishermen argued, so many salmon were being allowed to escape into the river that crowding on the spawning grounds and competition for food among young salmon were reducing the yield of salmon in subsequent years.
The data from recent times didn’t exactly support this argument, but commercial fishermen didn’t let that get in the way. They pitched a vision of MSY management that would fill the Inlet with salmon to the benefit of everyone.
In fairness to the man that former Gov. Bill Walker put on the Fish Board to help ‘solve’ the Upper Cook Inlet (UCI) ‘fish wars,’ all indications are that Maw’s heart was always in Alaska. But when his body was in Montana, he decided he could save a few bucks on the purchase of a hunting license by claiming to be a resident there.
Maw’s lying ways say about all that needs to be said about the man’s character, and that of the United Cook Inlet Drift Association of which Maw was the former executive director. It stood fast with him as he fought the state over the PFD charges for six years, only to lose; and UCIDA followed Maw down the road toward a hoped-for federal takeover of salmon management in the Inlet in the name of MSY.
They failed again and again in the courts, but kept on trying until they got to the U.S. Supreme Court, which decided it didn’t have time to deal with this silliness.
Not fair
At its root, the litigation backed by UCIDA and launched by the Fishermen’s Fund reflected the belief of commercial fishermen that Alaska Department of Fish and Game (AD&G) management of salmon in the Inlet wasn’t ‘fair.’ The Fund was at least right about that because salmon management is never fair.
Sometimes the fish are to blame when they don’t return in the expected numbers. Sometimes the risks of commercial bycatches of struggling species force fishing closures that allow tens of thousands of salmon of an abundant species to escape into a river.
And almost always, the decisions of the state Board of Fisheries as to how to split harvests between commercial, sport, subsistence and personal-use fishermen leave some or all convinced they didn’t get their fair share.
In part, this is because some folks can never get enough. No matter how many salmon return to the Inlet in any given summer, somebody ends up with the view that they didn’t get to catch as many as they wanted to catch.
As the Fishermen’s Fund spun the situation in its last-ditch pitch to SCOTUS, “regulations and executive orders by state fish management officials controlling fishing in UCI federal and state waters continued to change yearly, with increasingly adverse economic consequences for the remaining commercial fishermen and numerous others who engage in related interstate commerce such as canneries, retail supply stores, etc. UCI commercial set net fishing has been severely restricted for the last 30 years and was entirely closed by the Department (of Fish and Game) in 2023 and 2024, and most of 2025, in violation of the Commerce Clause and other laws requiring fair allocations of salmon among the users.”
The Commerce Clause of the U.S. Constitution gave Congress broad power to regulate interstate commerce and prohibit states from interfering with such commerce. The argument made by the Fund’s lawyers in an effort to get the court to override state management of salmon in the Inlet hinged on the idea that sales of salmon to markets outside of Alaska were being restricted by the state permitting significant harvests of Inlet salmon in personal-use dipnet, and hook and line fisheries.
The Alaska Supreme Court rejected that idea as nonsense in a ruling last fall.
The opinion of the state justices also noted that when the Cook Inlet Fishermen’s Fund (CIFF) started litigating the case back in 2022, its arguments strayed far beyond the Commerce Clause into accusations of government persecution of a specific class of citizens – those being commercial fishermen.
“CIFF argued that ADF&G’s commissioner was using the plan ‘to severely and adversely disenfranchise commercial fishing interests’ by closing ‘the East side set net fishery for the remainder of the season at or before the peak of the sockeye run,” the justices wrote. “It argued that this decision saved ‘a few hundred king salmon’ while ‘allowing gross sockeye and pink salmon over escapements of over a million salmon into the Kenai, Kasilof, and other Cook Inlet rivers that should have been harvested.”
The “should have been harvested” argument was based on the aforementioned “over-escapement” belief of commercial fishermen, who contend that in-river numbers above the maximum goal of 1.4 million sockeye are destined to produce weaker returns of salmon in future years. The science, however, does not support this.
Some larger-than-desired returns to the much-studied Kenai have resulted in smaller returns in subsequent years, but the opposite has also happened. Fisheries management is far from an exact science.
But commercial fishermen just couldn’t accept this.
“The Alaska Supreme Court has approved the Alaska-resident-only, personal-use salmon fishery and permits Alaska to manage UCI salmon to minimize the salmon available to the commercial fishing industry and maximize salmon into the rivers, which results in millions of salmon over escaping their maximum sustainable yield mandate,” CIFF told SCOTUS. ” This is wrong, unconstitutional, and will continue unless this Court grants certiorari. CIFF prays that this Court accept this Petition for a Writ of Certiorari to stop the egregious abuses inflicted on the commercial fishery in Cook Inlet. The commercial fishery and fishing communities will not survive otherwise.”
“Egregious abuses?”
As the Alaska Supreme Court pointed out, there was in this particular case a solid justification for the larger escapements of the sockeye salmon commercial fishermen wanted to catch.
“The king salmon population in the Kenai River has been suffering,” the justices noted. “In January 2022, ADF&G projected that the late king run in the Kenai would consist of 16,004 fish – only 1,004 fish above the minimum escapement goal.”
King salmon, or what most of the rest of the world calls Chinook salmon, are in such trouble in Alaska that the federal government spent the last two years considering whether or not to add the fish to the nation’s endangered species list.
NOAA this week announced it had decided against a listing after concluding that most stocks appeared to be at relatively low risk, although “current levels (are) trending low for many Gulf of Alaska stocks.” Still, the NOAA reported said most returns remain “within the scope of historical variability,” which has shown some very high, highs and some very low, lows.
The downward trend has, however, complicated fisheries management in the state’s many mixed-stock commercial fisheries.
Commercial setnet fishermen in the Upper Cook Inlet might have saved themselves from the grief of the onerous restrictions on sockeye harvests if they’d years ago put some effort into devising ways to harvest sockeye salmon without killing kings. But they fought the very suggestion of eliminating their bycatch of kings, with the result being that the state didn’t have any choice but to shut them down when king salmon returns started to falter.
Twenty-twenty-two was a particularly bad year for Kenai kings with the forecast return of 16,004 of the big fish failing to show.
“On June 3, 2022, ADF&G issued an emergency order restricting commercial set gillnet fishing near the mouth of the Kenai to ‘no more than 24 hours per week’ to ensure that the king salmon run achieved its escapement goal of 15,000 to 30,000 kings,” the justices wrote. “Then effective July 17, 2022, the commissioner completely closed the Kenai River king sport fishery, prohibiting even catch-and-release of the fish, due to projections that the late king run would be far below the optimal escapement goal of 15,000.
“This action also triggered the closing of ‘the commercial drift gillnet fishery in the Central District’ and the ‘commercial set gillnet fishery in the Upper Subdistrict and the Central District’ near the mouth of the Kenai River pursuant to the Kenai River Late-Run King Salmon Plan.”
The closure left nearly all commercial fishermen angry and some sport fishermen upset, although many of the latter were more disturbed that ADF&G hadn’t acted sooner to shut down all king salmon harvests.
The state’s commercial closures weren’t about persecuting commercial salmon fishermen; they were about trying to preserve and rebuild one of Alaska’s most prized salmon runs. But then, if you’re a commercial fisherman, it’s hard to see it that way because commercial fishing – no matter what some commercial fishermen might tell you – is not a “lifestyle.”
It’s a business. And when business is bad for any business, it’s hard to pay the bills. This makes it pretty easy to empathize with commercial fishermen who ended up losing income due to a shortage of king salmon that resulted in waves of sockeye flooding past their fishing sites unharmed.
But it’s also hard to avoid wondering where the money came from to pursue all this litigation seeking a federal takeover of Inlet management if all the fishermen were going broke.
