Federal council forced back into Cook Inlet salmon fray
The North Pacific Fishery Management Council will open up a process next week that will likely take years to redesign the Cook Inlet salmon fishery management plan.
A federal appeals court decided last fall that the council, which oversees all federal fisheries management in the North Pacific between 3 and 200 nautical miles offshore — known as the United States Exclusive Economic Zone — has to craft a management plan for the salmon fishery.
The council decided in 2011 to hand over several of Alaska’s salmon fisheries to state managers by removing them from the existing fishery management plan, and though an Alaska U.S. District judge ruled that it was legal in 2014, a three-judge panel of the 9th Circuit Court of Appeals unanimously reversed the decision this past September.
The North Pacific Fishery Management Council is tentatively scheduled to hear the first discussion paper prepared by the National Marine Fisheries Service on what the plan could look like and how they should proceed during the council’s meeting April 6 in Anchorage.
The federal rulemaking process can take multiple years, so the council will have to reach a working plan to allow the fisheries to operate for the 2017 season before moving forward with a finalized fishery management plan.
How did we get here?
The disagreement over the salmon FMP traces its roots as far back as 2007, when the Magnuson-Stevens Fishery Conservation and Management Act, also known as the MSA, was amended to include a number of criteria for managing fisheries.
The North Pacific Fishery Management Council began reviewing its various fishery management plans that year to bring them into compliance, but left the Cook Inlet salmon plan until 2011, a year before the 2012 deadline set out in the reauthorized MSA.
In 2011, the council voted to remove the Cook Inlet, Prince William Sound and Alaska Peninsula-area salmon fisheries from the federal FMP, deferring to state management.
The main thrust of the updates was to bring the plans into compliance with the act’s national standards for sustainable fisheries, including accountability measures to prevent overfishing. When the council voted 11-0 to remove the fisheries from the FMP, it determined that the state was meeting those standards.
A Cook Inlet commercial fishing group, the United Cook Inlet Drift Association, disagreed with that. The group argued that the state’s management, which is based on escapement goals, leads to large unharvested surpluses and overescapement into freshwater systems in Cook Inlet, which is not consistent with sustainable fisheries and national standards.
The group sued in January 2013, challenging the amendment to the salmon FMP, known as Amendment 12.
Though Alaska U.S. District Court Judge Timothy Burgess initially rejected the suit, UCIDA appealed to the 9th Circuit Court, where a panel of three federal judges ruled in favor of the group and sent the case back to Burgess with the instruction that the council can delegate management authority to the state, but the state has to manage within the criteria of a federal plan.
“The panel held that the National Marine Fisheries Service cannot exempt a fishery under its authority that required conservation and management from and FMP because the agency is content with state management,” the decision states. “The (Magnuson-Stevens Act) requires a regional fishery management council to create an FMP for each fishery under its authority that requires conservation and management.”
What does the plan have to include?
The Magnuson-Stevens Act sets out 10 criteria for sustainable fisheries management, as follows:
1. Management for optimum yield from each fishery while preventing overfishing
2. Management based on best scientific information available
3. Management for each individual stock of fish throughout its range
4. Non-discriminatory allocation among U.S. commercial fishermen
6. Consideration of variations and contingencies in fisheries, fishery resources and catches
7. Minimize costs and avoid unnecessary duplication
8. Consider the importance of fisheries to communities and, to the extent practicable, provide for sustained participation in communities and minimize adverse economic impacts to them
9. Minimize bycatch and minimize mortality of bycatch
10. Promote human safety at sea
The council has to amend the salmon FMP to include the three areas exempted by Amendment 12 and manage them to meet the criteria.
According to a discussion paper released in preparation for the council’s meeting, the first step is to develop alternatives for managing the three areas, followed by options to address the criteria not currently set out in the FMP. The discussion paper suggests forming a committee to deal with developing options.
“If the council decides to delegate specific management measures to the State to use existing State salmon management to the extent possible the Council would need to identify those management functions that would be delegated and how the delegation would operate,” the discussion paper states.
The court case isn’t entirely over yet. The State of Alaska, which intervened against UCIDA’s on the side of the National Marine Fisheries Service, filed an appeal with the U.S. Supreme Court on Feb. 27 to hear the case. In the petition, the state wrote that the National Marine Fisheries Service agrees the three areas would be worse off managed under a federal plan.
“The Ninth Circuit held that the Magnuson Stevens Act forecloses (escapement goal-based management) and requires that the fisheries be managed under an FMP with annual catch limits,” the petition states. “NMFS agrees that managing the fisheries with catch limits increases the risk of over- and under-harvesting salmon. Whether salmon are over or under-harvested, the result is the same: fewer salmon in years to come.”
The Supreme Court hasn’t decided whether to hear the case yet. In any case, the council is moving forward with the process as if the 9th Circuit’s decision is the last word, said Jim Armstrong, plan coordinator with the North Pacific Fishery Management Council.
“Since that’s kind of up the air, we’re dealing with the circuit court finding as final, and as such, we need to amend the FMP,” he said.
UCIDA initially requested that the U.S. District Court of Alaska vacate Amendment 12 and reinstate the old FMP, but the group does support escapement goal-based management versus annual catch limits. In its comments submitted to the council for the upcoming meeting, the group requests that the council form a committee to help develop options for a salmon FMP and include UCIDA members in the process.
The group wants the fishery to managed as a unit throughout salmon species’ ranges, according to its comments.
“To be clear, this does not mean that the Council is required to take over the State’s job or preempt state fishery management,” the comments state. “Rather it means that the Council, through the FMP, has to set the standards for this fishery based on the requirements of the MSA and its 10 national standards. Whether the State is ultimately willing to voluntarily meet those standards is a separate question, as is the potential need for preemption if the state does not meet those standards.”
Implications for the other salmon fisheries?
Though UCIDA was the group the brought the lawsuit, it wasn’t the only salmon fishery affected by Amendment 12. The move also removed the salmon fisheries in Prince William Sound and the Alaska Peninsula from the FMP.
The fishermen in the Alaska Peninsula area aren’t too happy about being pulled into the lawsuit, said Steve Brown, the president of the Concerned Area M Fishermen, which represents commercial fishermen who fish in the Alaska Peninsula management area.
“Out there, we don’t have any of the issues that the Cook Inlet guys have been complaining about,” he said. “That’s not an issue for us. We feel like we’re kind of getting dragged into this and we’re getting up to speed.”
The Alaska Peninsula fishermen don’t have an axe to grind with state management — in general, they’ve been pretty happy with it, Brown said. With the future of the plan thrown into question, however, the Alaska Peninsula fishermen will have to jump into the North Pacific Fishery Management Council process, he said.
That means travel costs, attorney’s fees and time investment into reading through the lawsuit and discussion paperwork, he said.
They’re also concerned about the potential for the implementation of annual catch limits, which are a regular management tools in other federal fisheries. To meet the Magnuson-Stevens Act criterion of preventing overfishing, the FMP has to determine standards for annual catch limits, a less flexible system than the escapement goal system, according to NMFS’ discussion paper.
The Concerned Area M Fishermen plan to advocate for a plan that keeps management as close to what exists now as possible, Brown said.
Annual catch limits and having to incorporate standards from the Endangered Species Act, which are involved in other West Coast fisheries, would make the fishery more complex, he said.
“In some respects, (the annual catch limits) provision is trying to pound a square peg into a round hole,” Brown said. “It doesn’t really match up with the life history of salmon. That’s going to be a really tough issue to deal with, when the council starts looking at catch limits and how that concept would apply to salmon fisheries.”
Reach Elizabeth Earl at [email protected].