Setnet ban ruled unconstitutional
The Alaska Supreme Court overturned a lower court ruling on Thursday, declaring a ballot initiative to ban setnets in certain areas of the state unconstitutional.
Calling the initiative a “give-away program” that was designed to appeal to the self-interests of non-commercial fishermen, the court issued an opinion on Thursday that put an end to a lengthy legal process that began in late 2013.
Lt. Gov. Byron Mallott certified the ballot initiative after the initiative’s sponsor, the Alaska Fisheries Conservation Alliance, submitted 43,000 signatures in support of the measure, 36,000 of which were declared valid by the Division of Elections.
The initiative would have almost exclusively impacted the Kenai Peninsula, where 735 setnet permits are registered alongside a large guided angler industry. Alaska residents hold more than 80 percent of the permits.
After the initiative was filed, then-Lt. Gov. Mead Treadwell rejected it in January 2014 as an allocative measure, which is prohibited by the Alaska Constitution.
AFCA appealed and won a reversal in Superior Court that allowed it to begin collecting signatures.
"I'm still shaking," said Resources for All Alaskans President Jim Butler. Resources for all Alaskans, or RFAA, is a relatively new group formed to combat the setnet ban. It weighed in on the argument in March 2014 supporting the state's assertion that the initiative was a prohibited appropriation of state resources.
At the time, Butler said the idea of banning setnetting at the ballot box was bad policy.
"The proposal to ban setnetters is particularly destructive because it doesn't address the real reasons for declining king salmon populations and would instantly destroy 500 small Alaska family businesses and hundreds of other jobs," Butler said at the time.
The Alaska Fisheries Conservation Alliance released a statement saying its members were disappointed by the decision and referring to the signatures of more than 43,000 registered voters who signed to have the ban put on the ballot.
"We are disappointed with the court's decision to deny voters an opportunity to weigh in on the method and means for harvesting," said AFCA president Joe Connors in the written statement.
Founding member Bob Penney is also quoted in the statement, he said he is "deeply disappointed because the Kenai Kings are the real loser here and it now seems their species will continue to decline. Maybe it’s time the federal government looked into this issue."
According to the court, commercial setnetters are a distinct user group who would be unfairly stripped of a public resource allocation — their part of the millions of salmon that return to Alaska each year — to another party’s benefit.
Most of the members of AFCA are sportfishermen who would ostensibly see more salmon inriver where the commercial nets to be removed from the water; one board member, Joe Connors, is a former setnetter.
Banning setnets, the court wrote in a Dec. 31 ruling, that the initiative would essentially devote salmon to a specific user group on the Kenai Peninsula, to the exclusion of another.
“We concluded that the initiative in question was a give-away program because it was ‘designed to appeal to the self-interests of sport, personal, and subsistence fishers, in that those groups were specifically targeted to receive state assets in the circumstance of harvestable shortages,” the court wrote.
The court also concluded that the ballot initiative would have narrowed the Legislature’s and Board of Fisheries’ ability to make allocations.
“If (the initiative) were enacted, then neither the Legislature or the Board would be able to allocate any salmon stock to this significant, existing user group.”
AFCA’s attorney, Matt Singer, had argued that Alaska has a history of making resource-related ballot initiative decisions, such as aerial wolf hunting and bear baiting. The Supreme Court said the argument is invalid, as the user groups for salmon are more clearly defined.
“Under the Limited Entry Act and its implementing regulations, commercial set netters must obtain gear-specific setnet permits, which are limited in number, hold significant value, and may be bought and sold,” the court wrote. “This makes commercial setnetters a far more cohesive, recognizable, and permanent group than individuals who hunt wolves using same-day aerial techniques and snares, or who hunt bears using baiting or feeding methods.”
DJ Summers can be reached at [email protected]