Cook Inlet’s commercial fishermen argued in the state’s highest court this week that the Dunleavy administration’s fisheries policy is deliberately destroying their livelihood in favor of sport fishermen. And their lawyers claim the Alaska-resident personal use fisheries run afoul of the U.S. Constitution.
Kenai attorney Carl Bauman told Alaska Supreme Court justices that the state managers have mismanaged the commercial fishery for years to get more fish in the Kenai and Kasilof rivers. He says these limits on commercial fishermen have flown in the face of the greater good.
“We’re here, in this court, because this court is the court of last resort to save – if you will – commercial fishing in Cook Inlet," Bauman said.
Wednesday’s hearingwas the latest in a multi-year legal battle between a regional advocacy group representing Cook Inlet commercial fishermen and state agencies.
In 2019, the Cook Inlet Fishermen’s Fund sued both the state Department of Fish & Game and the Board of Fisheries, alleging restrictions they had placed on the commercial fleet were unscientific and arbitrary. It took issue with restrictions on drift and set netters the state says were meant to conserve king salmon.
The Kenai Superior Court granted summary judgement to the state and said the board and department had the discretion to write and enforce their own rules. The Cook Inlet Fishermen’s Fund later appealed the decision.
Assistant Attorney General Aaron Peterson said Wednesday the state's policies may have been unpopular among commercial fishermen but they weren’t illegal.
He said the state took the actions it did in 2019 – and every year – to conserve critically low king salmon stocks.
"When the large late-run king salmon are below the sustainable escapement goal, the board requires the department to manage to conserve those fish for the reason that’s established in our constitution," he said.
Peterson also said the nonprofit couldn’t point to one specific regulation that was illegal or arbitrary, the legal standard for overturning a rule.
Bauman said the fishermen didn’t take issue with any one policy in particular.
“But it’s the totality of the regulations, and the underlying goals that the department has been, well, frankly highly successful in achieving – mainly, putting the commercial fishermen out of business," he said.
The fishermen say the lower court should fix parts of the salmon management plans that are not in compliance with federal standards outlined in the Magnuson-Stevens Act. And they want the lower court to investigate whether restrictions Fish and Game placed on their fishery in 2019 were legal, since they suspect they were made with bias against commercial fishermen.
“We’re hoping to get the management plans restructured to manage the fisheries in accordance to the federal and state laws and constitutions," said David Martin, a member of the Cook Inlet Fishermen’s Fund and president of the United Cook Inlet Drift Association.
Fishermen also allege the state’s dipnet fishery is unconstitutional, since it excludes non-residents from participating.
They say that exclusion of non-residents runs contrary to the Commerce Clause of the U.S. Constitution and cannot be justified on the basis of conservation or subsistence use. In turn, the Cook Inlet Fishermen's Fund asks the state to award its members damages for the lost harvest opportunity.
The state said Wednesday that claim and others are not valid to be up for litigation, since they were submitted in an amended complaint that the lower court rejected.
This is not the first time the Cook Inlet Fishermen's Fund has sued state fisheries managers.
The lawsuit is separate from two other ongoing lawsuits from Cook Inlet fishermen against the federal government. That’s over the decision to close a large swath of Upper Cook Inlet to commercial salmon fishing. The Cook Inlet Fishermen’s Fund is part of that lawsuit as well.
