With the Alaska Department of Fish and Game cautiously monitoring a weak return of late-run Kenai River king salmon, and with sport fishing groups increasingly suggesting fishing closures might be in order to protect the spawning stock, Anchorage Superior Court Judge Andrew Guidi has postponed for a week a hearing on a lawsuit from commercial fishermen who want more fish.
Commercial setnet fishermen who work the beaches near the mouth of the Kenai say they haven't been given the extra fishing time promised this year, and it's costing them millions of dollars. They say their fishing for red salmon shouldn't be restricted just to help protect kings.
In a 19-page lawsuit, the Cook Inlet Fishermen's Fund accuses the Alaska Department of Fish and Game of violating orders from the state Board of Fisheries to give setnetters an extra 51 hours of fishing time over and above their traditional, two-days-per week openings.
The board, appointed by the governor and confirmed by the Alaska Legislature, sets fishery policy. Fish and Game, a state agency, carries out those policies. Matt Mead, an attorney for the setnet fishermen who constitute the fishermen’s fund, contends the agency has gone rogue this year and is disobeying the board’s orders.
The suit insinuates that state fisheries managers are in the pockets of anglers, personal-use dipnetters, and commercial drift gillnetters.
"...The Department in 2012 and 2013 elected to only close the set gillnet fishery, letting all other user groups fish," the lawsuit says.
King bycatch problem for setnetters
State fisheries managers say they kept the commercial drift fleet fishing this year and last to net a large return of Kenai red salmon while incurring only a small incidental catch of king salmon. Meanwhile, a restricted sport fishery has been allowed to continue this year (it was closed last year) because 17,800 late-run kings are still projected to come back. And the participants in the dipnet fishery have in both years been required to release alive and unharmed any king they might catch.
The biologists argue the board delegated to their department the authority to manage the fisheries as necessary to catch reds -- of which there are many -- while trying to protect the kings -- of which there are few.
The big problem with the setnet fishery is that its by-catch of kings is, percentage wise, far higher than for the driftnet fishery. With the setnets largely shut down last year, the commercial fishery caught only 2,358 kings while harvesting 3.1 million reds.
A year before, with both driftnetters and setnetters fishing, the commercial fishery killed 11,248 kings, or about 30 percent of the entire run that year.
Last year, fewer than 30,000 kings came back. Both the commercial setnet fishery and the in-river sport fishery for kings, which supports a huge Kenai tourism business, were closed to fishing on July 19, 2012 with only 8,127 kings counted in the river.
This year, the July 19 count was only 7,497, but biologists said they were on pace to meet the minimum spawning goal, which was lowered by the Fish Board last winter over some anglers’ objections.
Projections hovering near 17,800 kings
"The ADF&G last March proposed dropping the minimum escapement of kings from 18,000 to 15,000,'' said Bob Penney, a longtime king salmon advocate and one of the founders of the Kenai River Sport Fishing Association. "No one knows why it was even proposed. When you are short fish, you reduce the escapement (to the spawning grounds)? In the name of conservation, you are supposed to raise it to protect the fish.''
Penney is now lobbying the state to shut down the sport fishery in the river, and biologists admit they may be forced to do that. The Kenai River Late-Run King Salmon Management Plan calls for a closure if the total projected return of fish is less than 17,800. The projections have been hovering near that mark for more than a week.
Kevin Delaney, a former state director of sport fisheries and a consultant to the Kenai fishing association, described the situation as similar to flying an airplane so slow it is on the edge of a stall. In that situation, it doesn't take much of a change to cause a crash.
Penney argues it’s time to quit trying to fly and park the plane safely on the ground.
"The late run of Kenai kings (is) now in a crisis mode," he said via e-mail Tuesday. "The east side setnetters and the river (sport fishery) should be shut down now. Conservation is supposed to come first. Every day they fish the east-side setnet fishery will kill more of the kings."
So far, weak king run behind last year's
As of Monday, a fish-counting sonar had recorded the entry of 8,291 late-run kings into the river. That is far below the minimum spawning goal of 15,000 and nearly 2,000 fish behind last year's weak return, but the projection remains near 17,800.
Setnetters, on the other hand, contend the sonar is hugely under-counting kings, though they have yet to produce an expert witness to back that claim. State fisheries biologists admit that the sonar could be under-counting, but they don't know by how much. And even if it is, there are indications a lot of kings are unusually small this year.
That might make the counter miss them. It might also mean the missed fish are needed to help maintain spawning. A 40-pound female king has more than twice as many eggs as a 20-pound female king.
Sherman Ernouf, an attorney for the nonprofit Kenai King Conservation Alliance, believes it possible that everyone's king fishing could be over for the year by the time Judge Guidi finally hears arguments in the setnetter's suit.
"We're kind of into next week where this could be a non-issue," he said. "We've got all of these things stacking up toward a closure."
The Alliance has joined the suit in support of the state.
If the king projection falls below 17,800 -- which biologist say is possible -- the Kenai management plan clearly calls for closing the king-salmon sport fishery, shutting down the setnetters, and moving the gillnetters a mile offshore to add additional protection for kings.
Mead, the attorney for the Fishermen's Fund, has said his clients want the state to follow the management plan to the letter.
If it forces closure of the king fishery, the Fishermen's Fund could continue to push its suit, arguing its members have been harmed. But Ernouf said he's not sure what the legal remedy would be if the fund won such a suit. "Everyone's damaged by then," he said.
An additional fishery opening for the setnetters would be unlikely in such circumstances. Alaska judges have consistently and repeatedly sided with the fish when runs are threatened.
As a judge in Bethel noted earlier this year, when it comes to survival, the interests of the fish trump the interests of any people. If people must sacrifice their religious rights to ensure future salmon runs, District Court Judge Bruce G. Ward ruled, then people must sacrifice.
And just because the state gave setnetters limited entry permits allowing them to catch and sell fish, doesn't mean those fishermen now own the fish -- even if they think they do, Enouf said. There is no precedent for a judge ordering the fishermen be paid.
A fishing permit is a license to operate, not a guarantee of anything.
"I have a law degree,'' Enouf said. "It doesn't guarantee me a client.''
Contact Craig Medred at craig(at)alaskadispatch.com