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9th Circuit denies 'property right' to Cook Inlet salmon fishery

Craig Medred

Once more commercial fishermen in Alaska's Cook Inlet have been told that the ownership of exclusive state permits to catch and sell salmon does not entitle them to those fish.

Now joining the Alaska Supreme Court and U.S. District Court Judge Timothy M. Burgess in denying fishermen any property right to Inlet salmon is the U.S. 9th Circuit Court of Appeals. In a decision handed down Monday, the federal judges agreed with the opinion of the state's top justices that "as a matter of state law, an entry permit to fish commercially for salmon in the Cook Inlet is not 'property' for the purpose of requiring compensation when its value decreases due to state regulation."

Since the mid-1970s, the Inlet has been a hotbed for disputes between commercial, sport, personal use and subsistence fishermen all wanting bigger shares of a limited number of salmon. The Alaska Board of Fisheries has tried to mediate between the parties with only limited success. Invariably some group leaves a Fish Board meeting convinced it received a less than fair share of the salmon allocation.

In 2007, four commercial fishermen decided they'd had enough and filed suit in federal court to lock-in a commercial allocation or make the state pay. Setnetters Garry Hollier and John N. Jent, along with drift gillnetters Dyer L. Vandevere and John McCombs, charged that constant and shifting "regulatory changes since 1996 have diminished the value of their entry permits and shore leases," according to briefs filed with the 9th Circuit.

"Plaintiffs claim that the Fifth Amendment's Takings Clause requires the State of Alaska to provide just compensation equal to the amount by which the board's recent regulations have reduced the value of their permits and leases."

The fishermen, all Kenai Peninsula residents, were trying to bootstrap off a 1992 U.S. Supreme Court decision that had expanded protection for private property rights.

The tactic didn't work. Burgess ruled no property right was involved. The fishermen appealed. The appeals court backed Burgess and compared the case made by the fishermen to that of a welfare recipient demanding a right to welfare.

"With respect to 'new property,'" Justice Susan P. Graber wrote in the court's opinion, "certain nontraditional forms of property -- such as public employment, welfare assistance, state contracts and licenses, and other government largesse -- the state has the final say on what interests one possesses."

McCombs, who lives in Ninilchik and has been an outspoken critic of both tourists who fish with rod and reel for sport and urban Alaskans who dipnet fish for the freezer, could not be reached for comment Wednesday. No one answered the phone at his home. It was the same for Hollier, the vice president of the Kenai Peninsula Fishermen's Association, a commercial fishing group.

Alaska's shift from commercial fishing to salmon conservation upheld

The appeals court ruling weakens the hand of the commercial fishing interests, which have long dominated Inlet resource politics, but it is not expected to lessen battles before the state Board of Fisheries. Commercial fishermen are particularly upset about a growing harvest in the personal-use dipnet fishery at the mouth of the river.

That fishery is just now getting underway.

In a letter to the Kenai Peninsula Clarion earlier this year, McCombs complained about the people the dipnet fishery attracts to the Kenai, arguing that "93 percent of dippers live in Anchorage and the Mat-Su." Commercial fishermen on the Kenai have grown increasingly resentful of such outside-the-area influences since the mid-1990s.

"The events that gave rise to Plaintiff's claims began in 1978 when the board instituted the Upper Cook Inlet Salmon Management Plan," the appeals court noted. "The plan favored commercial fishers over their recreational counterparts. (But) beginning in 1996, the board began to shift its approach to salmon fishing in Cook Inlet, placing a greater emphasis on salmon conservation and giving less priority to commercial fishing."

A fair number of commercial fishermen now believe significant numbers of Kenai River sockeye salmon go to waste because they escape fishermen to spawn in numbers greater than necessary to produce future runs. The fishermen refer to this as "over-escapement." They believe the river would be better managed if more fish were killed before they can reach the spawning grounds, but the appeals court joined the state Supreme Court in making it clear that is not a decision the fishermen get to make.

Fisheries management decisions, the judges ruled, are reserved to the state, and if they end up costing commercial fishermen, it's not the court's role to intervene.

At the end of the day a commercial limited entry permit really isn't much different from a state sport-fishing license, the court found.

"Under Alaska law, plaintiffs have only a license, and not a protected property interest, in the entry permits," the judges said, echoing a separate suit in which the Alaska Supreme Court, too, "held that 'the entry permits are not property interests.'"

Contact Craig Medred at craig(at)alaskadispatch.com