Arguments heard in challenge to state salmon management


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A federal judge heard oral argument May 27 in the lawsuit over whether Cook Inlet salmon fisheries should be in a federal management plan.

Alaska has managed its own salmon since statehood, and the plaintiffs United Cook Inlet Drift Association and Cook Inlet Fishermen’s Fund who brought the lawsuit forward in February 2013 are not questioning that structure.

However, the groups want federal oversight of state salmon management — and argue that is what Congress intended in its regulations of fish in federal waters.

The National Marine Fisheries Service removed Cook Inlet salmon from the federal fishery management plan, or FMP, after the North Pacific Fishery Management Council unanimously voted in December 2011 to officially delegate that authority to the Alaska Department of Fish and Game.

Cook Inlet, Prince William Sound and Alaska Peninsula salmon fisheries were removed from the federal FMP, leaving only Southeast salmon still under federal jurisdiction because of the Pacific Salmon Treaty with Canada.

The council manages most fisheries in federal waters from three to 200 miles offshore shore under the authority of the Magnuson-Stevens Act. The council action to delegate salmon management to the State of Alaska in 2011 made official what had been the policy since the act passed in 1976, but was required under revisions to the law that passed in 2006.

The final rule implementing that change was published in the Federal Register in December 2012 and became effective Jan. 22, 2013, prompting the lawsuit filed by UCIDA a month later.

During oral argument in Alaska U.S. District Court in Anchorage, Judge Timothy Burgess asked both sides to answer several questions about deference to federal management in certain situations, whether the Magnuson-Stevens Act precludes referring management to the state, and past situations where fish in federal waters have been managed exclusively by the state.

Coby Howell, who represented the federal defendants, said the Cook Inlet tanner crab fishery is also managed solely by the state, after having been removed from the federal crab FMP. Other crab fisheries in the Bering Sea and Bristol Bay are managed jointly between the state and federal regulators under the FMP.

The parties also discussed the 2012 salmon fishery disaster in Cook Inlet.

The plaintiffs contend that disaster was not properly accounted for in the final rule that removed Cook Inlet from the federal management plan.

“These are the kinds of problems that we need the council and the National Marine Fisheries Service to be weighing in on,” said Jason Morgan, counsel for UCIDA and CIFF.

But Howell said the disaster came after the NMFS action, and it was not up for a change after the disaster occurred. Furthermore, he noted that the fishery disaster was an economic one — and the plaintiffs likely benefitted, because setnetters were shut down, affording the drift fleet additional harvest opportunity.

The State of Alaska is also participating in the suit as an intervenor on the side of the federal defendants, and state Department of Law attorney Lance Nelson said that another issue raised in the lawsuit — the potential for harvest in certain federal waters where the Cook Inlet groups say a loophole allows vessels to fish unregulated by the state — has not occurred and likely will not.

Nelson also said that the state has the resources to manage the fishery, while the federal government does not.

Plaintiffs attorney Morgan said the fishing groups are not looking for day-to-day federal management, just oversight.

Both sides will now wait for Burgess to issue a decision.

Molly Dischner can be reached at molly.dischner@alaskajournal.com.

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