Set-netters' case shot down, again, in court
Alaska's highest court said fisheries managers did not have to manage the Cook Inlet set-net fishery to national standards and that they didn’t violate any regulations when they closed the fishery early.
That opinion from the Alaska Supreme Court, published Friday, is the latest legal blow to the 440 or so east-side permit holders, who have seen their fishery close early for the last four summers due to paired restrictions with the king salmon sport fishery. When fewer than 15,000 large kings pass through the sonar on the Kenai River, the Alaska Department of Fish and Game closes both fisheries entirely. Late-run escapement hasn’t passed 15,000 kings since 2018.
And after the closure in 2019, set-netters represented by the Cook Inlet Fishermen’s Fund sued the state in hopes the court would order managers to rework that management plan and others. It alleged restrictions the state had placed on the commercial fishermen were unscientific and arbitrary and flew in the face of the Magnuson-Stevens Act.
The Kenai court said because there was no federal management plan for Cook Inlet fisheries at that time, the state was not bound by those standards. And it said the state’s Board of Fisheries and Department of Fish and Game had the discretion to write and enforce their own rules.
The Supreme Court doubled down on that opinion last week.
John McCombs, president of the Fishermen’s Fund, said he wasn’t surprised that the Supreme Court affirmed the earlier decision. He said the state doesn’t manage the fishery scientifically or to federal standards.
"Federal management occurs in the Gulf, and other fisheries," he said. "They’ve just chosen to do it differently in Cook Inlet."
In the filing, fishermen also alleged the state’s dipnet fishery is unconstitutional, since it excludes non-residents from participating — which they said runs contrary to the Commerce Clause of the U.S. Constitution. The Supreme Court rejected that claim in its opinion, as well.
It’s the second court defeat for the Cook Inlet Fishermen’s Fund this month. The Kenai Superior Court also rejected a request from the nonprofit to immediately reopen their fishery through a temporary restraining order in response to this year’s fishery closure.
In the Aug. 1 decision, Kenai Superior Court Judge Jason Gist wrote the set-netters face significant financial harm as a result of the state’s plan.
“Defendants do not contest this,” he wrote. “Defendants assert, however, that they are obligated to manage all of the fisheries, including sockeye and king salmon, and that potential harm to the king fishery without such restrictions may result in a complete depletion of the fishery altogether.”
He said the low king forecast weighed in favor of denying a temporary restraining order, and said it was within Fish and Game’s purview to limit the harvest of one fishery to protect another. Set-netters point to the repeated overescapement of Kenai River sockeye as a consequence of the king plan.
Fishermen have taken their complaints outside the court, too.
At a meeting in Soldotna earlier this month, they asked Alaska Fish and Game Commissioner Doug Vincent-Lang to use his authority to partially reopen their fishery.
But repeatedly, Vincent-Lang told the fishermen those decisions are up to the Board of Fish.
"The issues we are all talking about around this table have been debated at length by the board," he said. "I got clear guidance. If you want that guidance changed — go to the board."
Fishermen were hopeful earlier this year that an out-of-cycle proposal to the Board of Fish could loosen restrictions on their fleet this summer ahead of the next board meeting in 2024. That proposal failed in a close vote.