Demands for more salmon in the setnets of commercial fishermen working the east side of Cook Inlet have been thrown back into the shark tank of Alaska fisheries politics by an Anchorage Superior Court judge.
Judge Andrew Guidi ruled Thursday that when the state Board of Fisheries decided commercial fishermen "may" be entitled to an extra 51 hours of fishing time this year, that is exactly what the board meant. Setnetters had argued the board meant commercial fishermen were owed those 51 hours -- worth millions of dollars in dead sockeye salmon -- and charged that state fisheries managers had conspired to subvert the board’s intent.
The judge firmly disagreed.
"The language of 5 AAC 21.360(c)(2)(b) cannot be reasonably interpreted as mandating a certain number of extra hours of fishing periods for the ESSN (east side set netters’) fishery," he wrote. "The use of the terms 'may' and 'no more than' preclude any mandatory effect."
The ruling leaves the setnetters with few options but to go back to the board to ask that the 51 hours be added to the regular, two-days-per-week openings now allowed in the fishery. Such a plea is unlikely to meet with success, given that the Kenai River looks to be facing serious problems with its world-famous run of king salmon.
Though fishing red salmon, the setnetters who work the beaches along the Kenai Peninsula catch hundreds, sometimes thousands, of those kings and over the years have shown little willingness to experiment with ways to minimize their king salmon bycatch. In court filings this year, they argued that the 15,000 to 20,000 kings needed to meet Kenai spawning goals shouldn’t compromise a 3- or 4-million-fish return of sockeye salmon fishery worth millions of dollars.
The 150-plus setnetters who are part of the Cook Inlet Fishermen's Fund argued the Alaska Department of Fish and Game was being too conservative in managing those fish and thus costing settnetters large amounts of money -- $20,000 to $30,000 per day in lost revenue every time they were denied an extra opening.
Guidi appeared less than sympathetic to that argument.
"...The uncontradicted evidence shows that the Kenai River king-salmon run is very low this year," he wrote. "It would be unwise for Fish and Game to gamble there will be an exceptionally large late-season surge in Kenai River king salmon to meet the (spawning) escapement goal. Furthermore, the risk of an underescapement is much more likely to have a detrimental long-term impact on the Kenai River king salmon than the negative impact" of closed fisheries.
State fisheries biologists, the judge concluded, appear to be doing the best they can to protect the mixed stocks of salmon passing through Cook Inlet while dancing through the minefield of Fish Board allocation decisions on who should be allowed to catch which fish -- primarily sockeye salmon for the commercial drift net and setnet fisheries; prized king salmon for the in-river sport fishery; and kings and sockeyes for the personal-use dipnet fishery at the river mouth. Dipnetters were the first to be banned from keeping kings this year. Later, the weak king run led to the closure of the in-river hook-and-line fishery too, and the loss of yet more fishing time for the setnetters. But, Guidi said, it wasn't because of -- as setnetters charged -- an effort by state fisheries managers to subvert the wishes of the regulation-setting Fish Board.
"...The court cannot find that Fish & Game has acted inappropriately or irresponsibly in its management decisions," he wrote. "The court should not substitute its or the Fund's judgment on a matter of complex agency expertise by second-guessing Fish & Game's in-season methodologies and analysis....The Board authorizes Fish & Game to use its emergency authority to achieve escapement goals established in the Board's management plans. The evidence supports that Fish & Game's actions in this case have been consistent with its authority and reasonably based on achieving the Board's goals."
The ruling left open the possibility that the setnetters could continue to pursue monetary damages if they can somehow show they were intentionally targeted and harmed by the state. However, previous court rulings have held that the limited-entry permits the state gave commercial fishermen years ago -- permits now privately owned by the fishermen, which can be bought and sold -- entitle the permit holders to fish, but do not give them an ownership interest.
The Alaska Constitution is crystal clear on the issue of who owns the fish and wildlife of Alaska. "Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use," it says.
It is left to the Board of Fisheries to sort out among the various interests competing for salmon the best "common use." It is an imperfect system.
At the moment, the setnetters aren't the only ones crying foul. Dipnetters are mad because they say Fish and Game deprived them of fish by letting the commercial driftnet fleet fish for sockeye more often than dipnetters wanted. And some sport fishing and conservation groups are mad that both the setnet fishery and the in-river king fishery were allowed to continue killing those big fish almost until the end of July.
The month was almost over before fisheries biologists decided their king salmon projection was going to fall short of the spawning goal. Biologists project the run based on past return history. If they kept fisheries closed until they had the required escapement in the river, it would mean almost no fishing for anyone all season.
Contact Craig Medred at craig(at)alaskadispatch.com