Setnet ban initiative OK’d, state considers appeal


Devin Every, Travis Every and Damien Redder pick fish from a setnet July 9 in Kenai. A proposed ballot initiative to ban setnets in Cook Inlet and other urban areas of the state was approved by an Alaska Superior Court judge July 23, reversing a decision by Lt. Gov. Mead Treadwell to reject the measure in January.

Photo/Peninsula Clarion/Rashah McChesney

Voters could be asked to decide whether to ban setnets in certain parts of Alaska under a court decision issued July 23.

The Alaska Fisheries Conservation Alliance, or AFCA, filed a ballot initiative petition last November seeking to ask voters whether to ban setnets in urban parts of the state, which would primarily impact Upper Cook Inlet setnetters.

Anchorage Superior Court Judge Catherine Easter overturned Lt. Gov. Mead Treadwell’s decision to reject the proposed ballot initiative, and ordered the lieutenant governor to certify the initiative and allow proponents to continue the process of gathering signatures to get the question on the 2016 ballot.

Treadwell struck down the initiative in January based on a state Department of Law opinion asserting that it would be a prohibited resource appropriation not allowed under the Alaska Constitution.

AFCA appealed, and during oral argument its attorney Matt Singer said that the organization believed the initiative is not an appropriation, and that the public’s right to weigh in on fish and wildlife management using the ballot initiative process should be interpreted broadly, with the appropriations limitation interpreted narrowly.

Easter agreed with AFCA that the initiative was not a prohibited appropriation.

“(The initiative) does not result in a give-away program or usurp legislative control over the salmon allocation process,” Easter wrote.

Easter’s opinion generally agreed with the points made by AFCA, and Singer noted that the question was a fairly narrow constitutional question.

“We’re quite pleased with the judge’s decision,” Singer said. “We think it’s a correct decision and consistent with a long history in Alaska law of voters participating in the proper management of fish and game.”

Now, AFCA must collect about 30,000 signatures before the question can appear on the ballot. The Alaska Division of Elections prepares the signature packets, and once they are ready, the organization will have one year to collect the signatures.

“My client is eager to get its petition booklets and get going collecting signatures and to start a debate and dialogue about the use of setnets in urban areas in Alaska,” Singer said.

Easter’s decision may also still be appealed to the state Supreme Court.

State Assistant Attorney General Libby Bakalar wrote in a July 29 email that the decision whether to appeal was under review by the solicitor general and the attorney general. A decision was likely late that week, or early the week after, she wrote.

Jim Butler, a Cook Inlet setnetter and president of Resources For All Alaskans, or RFAA, said July 24 that his organization was encouraging the attorney general to take the issue to the state Supreme Court.

“We’re obviously very disappointed in the court’s decision, and certainly believe that the court erred with its legal conclusion,” Butler said.

The state’s argument relied, in part, on a prior case — Pullen vs. Ulmer — in which the court said an initiative giving preferential treatment to one user group was a prohibited appropriation.

Singer said that from AFCA’s perspective, Easter applied the case law regarding appropriations correctly.

“We think she got to the right result,” he said.

Easter wrote in her order that the two cases were substantially different, and that comparing the two was like comparing apples and oranges.

She wrote that the proposed ballot initiative “would not target a particular group to receive salmon or result in voters voting themselves salmon,” and that the setnet sector is not a separate entity, it is just part of the overall commercial fishery.

Upper Cook Inlet setnetters target sockeye salmon for commercial harvest. Their permits also allow to them to catch and sell other salmon species, including kings, that swim into the nets.

Eliminating setnetters in Cook Inlet would likely result in increased catch for in-river sport fishermen, personal use fishermen, and for the fleet of commercial drift boats targeting sockeye.

Butler said that the contention that the setnet industry isn’t a unique element of commercial fisheries is a misunderstanding of fisheries regulation and management.

In an amicus brief filed with the court, RFAA also asserted that because the legislation primarily targeted one region, it could be considered to enact local or special legislation, which cannot be done by a ballot initiative.

Easter said in a footnote that neither party in the case made that argument and that the initiative does not enact local or special legislation because it is of general, statewide applicability.

RFAA has also raised concerns about the statewide impacts of the initiative, but on a precedent basis, not regarding the specifics of the proposed ban.

Jerry McCune, a commercial fisherman from Cordova and RFAA founder, said there are also concerns about what the ruling will mean for fisheries management throughout the state if the initiative is allowed on a ballot.

“It’s not just about the setnetters; it’s bigger than that. It’s about the whole state, I feel,” McCune said.

McCune said the initiative could also lead to management of other resources by initiative, such as mining and or oil and gas.

Eventually, if passed, the ban could also be felt in other parts of the state.

The initiative specifically bans setnets in the areas defined by the Alaska Department of Fish and Game as nonsubsistence areas.

Last October, the joint Board of Fisheries and Board of Game considered designating Bethel and Kodiak — regions where setnetting occurs — as nonsubsistence areas. Those efforts failed, but could come up again in the future.

McCune and Butler said RFAA is still trying to decide how it will proceed when signature gathering begins, but that the organization will likely get involved in educating the public about setnets.

However, putting effort into that, instead of other issues facing the commercial fishing industry faces, would be a frustrating use of resources, Butler said.

“It takes people off task,” he said. “It’s a big negative drain.”

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