DJ Summers and Rashah McChesney

Supreme Court rules setnet ban unconstitutional

The Alaska Supreme Court overturned a lower court ruling on Dec. 31, 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 that put an end to a lengthy legal process that began in late 2013. Lt. Gov. Byron Mallott certified the ballot initiative last August 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 in November 2013, 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. “I very much appreciate the court’s effort to very methodically and step-by-step analyze the constitutional issues as well as the vision of the framers of the Alaska Constitution to get to their decision.” RFAA 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.” When reached by phone Jan. 2, Bob Penney said he was on vacation and had no comment on the decision. AFCA Executive Director Clark Penney, Bob Penney’s grandson, said the group is looking into the Endangered Species Act as another avenue to protect salmon caught by set nets. Clark Penney said the group’s focus was not just on Kenai River king salmon, but on protecting fish species that are targeted by ineffective means. “We see set nets as the least effective for taking their target fisheries,” Clark Penney said. Under the Endangered Species Act, a species can be listed as “endangered” or “threatened” when, according to the U.S. Fish and Wildlife Service, “it is determined to be endangered or threatened by destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; other natural or manmade factors affecting its survival.” Unlike Pacific Northwest salmon stocks that do have ESA protection, the late run of Kenai River king salmon has never failed to meet its minimum escapement goal. The court’s case 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; two board members, Connors and Derek Leichliter, are former set net fishermen. Banning setnets, the court wrote in its Dec. 31 ruling, 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.” Much of AFCA’s legal justification for the ballot’s constitutionality rested on prior ballot initiatives that banned hunting or fishing methods and means. The court said the prior initiatives were either not equivalent to the setnet ban, or that their passage alone didn’t make them constitutionally sound. AFCA attorney Matt Singer had argued Alaska has a history of making resource-related ballot initiatives, 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.” Singer had also argued that Alaska voters banned fish traps by voter initiative, which he said established both gear type restrictions and the resource as fair game for ballots. Indeed, voters did outlaw fish traps by ballot initiative in 1959. The Alaska constitution, however, had not been accepted at this point. “Ordinance 3 was approved before the Alaska Constitution went into effect and was thus not governed by the constitutional prohibition against appropriating by initiative,” the court wrote. Even subsequent resource initiatives are not equivalent to the setnet ban, the court ruled. Singer had cited several cases as evidence of the ban’s constitutionality. Two of these ballots, however, were held before salmon had been ruled a “public asset,” and therefore forbidden under the Alaska constitution’s ballot measure provision. Aftermath Several of the fishermen who weighed in on the Supreme Court decision said they are weary of Cook Inlet’s “Fish Wars.” But each blamed fishermen from opposing user groups for igniting tension between user groups. “I think there are many people in the sport fishery, the guided industry, the commercial salmon harvester and even the personal use fishery who want to collaborate and find a way to make things work in this complicated fishery,” Butler, a longtime Cook Inlet setnetter, said. “There are others who see that as a risk, because if we can collaborate and get along — their particular opportunity might not develop the way they want it to be. I think this (threat of a ban was) inherently a divisive approach at solving a complex problem.” Butler said Resources for All Alaskans and the commercial fishing community didn’t want a fish war. “We’ve existed in this community for 100 years. The concept of a fish war is new and it’s because of increasing demand and we need to talk about that because there are plenty of fish for everybody. We just need to cooperate and not put people out of business to accomplish that goal because there’s no need to,” he said. Connors, who is the President of the AFCA board as well as a fishing charter and lodge owner on the Kenai River, said he saw inflexibility and an unwillingness to change from many commercial set net fishermen in Cook Inlet. “Sooner or later people just have to kind of come to the realization that they can’t fish the same way they did 50 years ago,” Connors said. “I know when I commercially fished, I used to catch Dolly Vardens — the sea run ones — and keep pounds of them in my freezer on the boat. So there’s just a lot going on out there and it’s not good and it’s not conservation-minded. So unless the attitude of, ‘We should kill, kill, kill as much as we can, as quick as we can, changes ... the fight will keep going.’” Butler said he believed the people who spearheaded the effort to ban set nets in certain areas of the state would continue their fight. “I am under no illusion that the people who have promoted this (ban) are done by any stretch of the imagination. I just don’t see that,” Butler said. “It’s no news to anybody that there’s a few influential people who see this (ban) as a very important part of their life’s mission or their view of the world.” Despite his frustration with the set-net fishery, Connors said he saw promising changes being made by commercial set net fishermen in the Cook Inlet. He referenced large operations — like Gary Hollier’s family sites where more than 20 nets are typically in the water, or Greg Johnson’s family sites where 18 nets are typically fished. Both families cut nets on some or all of their sites to shorter depths in 2013 in an effort to reduce harvest of king salmon. Connors also spoke highly of Brent Johnson, who owns another large family operation in Clam Gulch, and Brent Johnson’s “selective harvest modules,” which are designed as a type of fish wheel that, in theory, allows Johnson to keep fish alive long enough for him to release those he did not intend to target. Connors said he is encouraged by those efforts to change the way set net fishermen target salmon. Many fishermen said they hoped a more fruitful dialogue between user groups could happen now that the threat of a ban had been lifted. Snug Harbor Seafoods Co-owner Paul Dale, president of the Alaska Salmon Alliance — a fisheries trade organization representing seafood processors and commercial fishermen on the Kenai Peninsula — said it had been difficult to have constructive conversations with users who wanted to abolish his way of life. “Who wants to negotiate when someone is holding a gun to your head? It really stymied dialogue between commercial and sportfishing,” Dale said. Connors said negotiations between the two groups had been difficult long before the initiative process began. “Now it’s gone, it’s gone. Now it’s not looming,” he said. “But that was out of frustration. We were totally frustrated in a sense because of what we were seeing. We were seeing incredible killing of king salmon. (Set netters would say), ‘Well, we’re allowed to kill all of those,’ and yes you are, but it’s not your money fish. Why not develop an incredibly efficient sockeye fishery and do everything you can not to kill the other fish? I think there will still be fish wars because what I’m thinking now is that (the decision) will only cause (set netters) to become more aggressive because they just won.” Despite their misgivings, Connors, Dale and Butler all said they hoped more normal dialogue could resume among competing user groups in the Cook Inlet. “We are so fortunate and so blessed to have this tremendous resource, the notion of a war is appalling if you think about it,” Butler said. DJ Summers can be reached at [email protected] Rashah McChesney can be reached at [email protected]

Subsistence board approves gillnetting on Kenai, Kasilof

Editor’s note: This story has been updated from the version published Jan. 22 to include Rep. Les Gara’s comments to the Federal Subsistence Board and information about how to submit public comment. It has also been modified to reflect that both state and federal advisors were concerned with the negative biological impact of adding gillnet fisheries to the Kasilof and Kenai rivers. Anglers on the most heavily used river in the state will be joined by another group of fishermen this year after the Federal Subsistence Board, on Thursday voted to allow subsistence gillnetting on the Kenai River. The board also voted to allow the gear type on the Kasilof River as well after receiving proposals from the Ninilchik Tribal Council asking for a community set gillnet fishery for subsistence users. While the new fisheries will be primarily targeting sockeye salmon, subsistence users are allowed 4,000 per year in the Cook Inlet, the potential to harvest other species of fish was an ongoing sticking point in the discussion. Alaska Department of Fish and Game biologists were concerned about resident species such as Dolly Varden and rainbow trout and the beleaguered king salmon runs. While the Ninilchik Tribal Council argued that the gillnets will catch far fewer king salmon than sport and commercial users do, biologists said they were concerned that the new fishery is ill-prepared and potentially harmful to conservation efforts on struggling species. The Federal Subsistence Board operates as part of the U.S. Department of the Interior to control federal subsistence. It is made up of the regional directors of the U.S. Fish and Wildlife Service, National Park Service, Bureau of Land Management, Bureau of Indian Affairs, the U.S. Forest Service, and there are three public members appointed by the Secretaries of the Interior and Agriculture: two represent rural subsistence users and one is the Federal Subsistence Board chairman. Both state and federal advisors voiced conservation concerns, arguing that gillnets are not appropriate for either river in light of stock declines. Regional Fisheries Management Coordinator for Southcentral Cook Inlet, Matt Miller, said the conflict between the Federal Subsistence Board’s single mandate and the myriad conservation and management tasks of state and federal resource management bodies frustrates and confuses the process. “It’s a non-selective gear type in an era of conservation. If you don’t say no to gillnets on the Kenai, what will you say no to?” While the board made time and area amendments to the Kasilof River proposal — including a requirement that any community set gillnet fishery would need a operational plan before it hit the water — no caveats were added to Kenai River proposal. Kenai River The Federal Subsistence Board voted 4-3 to allow gillnetting on the Kenai River with the Bureau of Land of Land Management, U.S. Fish and Wildlife Service and the Forest Service opposing the move. The Ninilchik subsistence community will be able to operate one 10 fathom, or 60-foot long, net to take salmon. Users would not be allowed to obstruct more than half of the river’s width with stationary fishing gear and, if other subsistence stationary gear is in the water the gillnet would be set at least 200 feet away. One permit for the Ninilchik subsistence community would be made available. However, board members said managers would also have to consider proposals from the subsistence communities in Cooper Landing and Moose Pass — meaning that up to three nets could potentially be used in the river. The permits would be awarded by the federal fishery manager and the Kenai National Wildlife refuge manager. Fishing will be allowed from June 15-Aug. 15 on the Kenai River unless it is closed or otherwise restricted by federal action and salmon taken in the gillnet fishery would be included in the dipnet, and rod and reel fishery annual harvest limits for the Kenai River. Subsistence fishing areas on the Kenai River include the Russian River Falls, Kenai River Mile 48 — just south of Skilak Lake — and Moose Range Meadows. Fish and Game Sportfishing Area Management Biologist Robert Begich said he was concerned about the new fishery, both because of its location and its potential to affect the department’s ability to count and project how many king salmon would make it up the river to spawn. Subsistence users can harvest 1,000 late-run king salmon in the Cook Inlet and the areas where those salmon could be harvested on the Kenai River are upriver from the areas where Fish and Game operates its in-season sonar projects to count and project the final numbers of the struggling fish stock. “We would need their harvest for our projections to be correct,” he said. Last year, managers projected that 16,671 chinook salmon escaped into the river, or about 1,671 fish above the lower end of the river’s escapement goal range. Managers have struggled to meet the king salmon goal on the Kenai River and the fishery has become increasingly restrictive in recent years. In 2014, the Kenai king salmon fishing season began with an unprecedented closure for early-run king salmon, and Fish and Game also used a provision that required anglers to use barbless hooks later in the season — a first in the state. Begich said he was also concerned with the idea of a gillnet being used downstream of Skilak Lake because of the variety of species holding in the area during the June through August time period. “Those fish are all in different stages of pre- and post-spawning and when you put a gillnet in the water up there, you’re going to catch everything,” he said. “It’s a non-selective gear type so you’re going to be catching spawning-colored reds that you’re not going to want to catch, pinks, spawning-colored kings, everything.”  Kasilof River The board voted unanimously in favor of an amended proposal to allow gillnetting on the Kasilof River. The new regulation will allow for one community setnet in the Kasilof River, aimed primarily at plentiful sockeye salmon runs. Last year, Fish and Game counted nearly 440,000 sockeye in the river. The Ninilchik Traditional Council’s proposal adds a 10-fathomgillnet to the existing rod and reel, dipnet and fish wheel subsistence fisheries available on the river. The council argued that the current dipnet, rod and reel, and fish wheel allowances are not sufficient for their subsistence needs. By statute, subsistence is to be given a higher consideration than other fisheries, and the council argued that not allowing the most effective means to fish salmon would break that promise. “Subsistence fishery is supposed to be the number one consideration,” said Executive Director of the Ninilchik Traditional Council Ivan Encelewski. “We’re not going to get a $100,000 seine permit just to satisfy our subsistence needs. We (subsistence users) feel like we get the short end of the stick.” Salmon harvested from the gillnet fishery will be included as part of each household’s 25-per-household limit for sockeye from the Kasilof river. The federal board amended the time and area available to subsistence gillnetters by allowing fishing only in July 1-31. The Kasilof sockeye and king salmon runs stretch from June 16-August 15 while the coho and pink salmon seasons run from June 16 to Oct. 31. The amendments also specified that the permit will be experimental for five years, then the board will review its performance. Before the community net can hit the water, the board also required that it have an operational plan, which would include information like mesh size, allocation and location restrictions. Miller, the Fish and Game regional coordinator, said the addition of the experimental gillnet fishery flies in the face of the opportunities already available to the Ninilchik such as educational fishing permits. The risk to king salmon isn’t worth the gain for the sockeye, he said. Encelewski argued that the millions of sockeyes harvested by the Cook Inlet commercial and sport fisheries are, in practice, prioritized by means of the conservation measures for sinking chinook stocks. “We’re talking 4,000 sockeyes here,” said Encelewski “Conservation gets the priority, not us.” Reaction After the meeting Kenai Peninsula users said they were surprised by the decision. Kenai River Sportfishing Association Executive Director Ricky Gease said he was surprised by the decision because commercial and sport fishermen had worked with the issue of gillnets on the rivers in the past. “I wonder what changed from the finding from 2007 when they said they didn’t want to use gillnets because of the indiscriminate nature and conservation concerns for Dolly Varden, rainbow trout and salmon,” Gease said. Despite the criticism, board members said they had a responsibility to consider the subsistence users in the inlet. Hydaburg mayor Tony Christianson, rural representative for the Federal Subsistence Board, said it was the board’s job to look at more than the potential economic impact a fishery could have. “We only have the one thing to look after, and it’s the interests of the subsistence community,” he said. I’m here to fight for the people. I’m here to look after their needs, and their need is food, not money.” On Jan. 26, Alaska Rep. Les Gara, D-Anchorage, wrote a letter to the Federal Subsistence Board asking for reconsideration. Gara says the measures could harm trout, char, and chinook salmon, as well as pour gasoline on the incendiary nature of peninsula fish allocations. He recommends the board remove chinook entirely from the proposal while still allowing for sockeye harvest. “This decision does not recognize the biology of the Kenai River and the need to protect the rivers prized kings, rainbows and dollies,” said Gara. “It needs to be rewritten so that subsistence sockeye salmon can be taken in a manner that does not harm other fish populations, or diminish the fair access to sockeye fishing by sport, personal use and commercial fishermen.” Requests for reconsideration are open to the public by mail, fax, and email at the Federal Subsistence Board’s website. The January meeting concluded the fisheries regulatory cycle for the year. The board will now focus on wildlife. The next board meetings will be held in June 2015, and January and April 2016. Dates have not yet been set. DJ Summers can be reached at [email protected]
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