Setnet initiative struck down

The proposed ban on setnets was struck down Monday afternoon as a “prohibited appropriation” under the advice of Alaska’s Department of Law.

Lt. Gov. Mead Treadwell announced this afternoon that the proposed ban on setnetters would not appear on the ballot.

 According to a statement from the Division of Elections, the Department of Law issued a 12-page opinion that determined that having voters consider the ban would be an appropriation, which cannot be addressed in a ballot initiative.

That was based largely on a 1996 Alaska Supreme Court decision in Pullen vs. Ulmer that maintained that salmon are assets that cannot be appropriated by initiative, and that preferential treatment of certain fisheries may constitute a prohibited appropriation, according to the press release.

A ban would largely have affected Cook Inlet setnetters, although the text of the ordinance sought to prohibit setnetting across the state in areas that do not have rural designations — in addition to the Upper Cook Inlet, that would mean Valdez and Juneau, where no setnetting occurs. Setnetting would have remained in other communities, including Kodiak, unless the rural designation was removed.

The Alaska Fisheries Conservation Alliance, or AFCA, proposed the initiative in November, and was targeting the August 2016 ballot.

The conservation alliance was founded by those with financial and recreational interests in sportfishing, including Bob Penney, who has previously stated his desire to reverse the current allocations between commercial and sport fishing in Cook Inlet. Penney is the founder of the Kenai River Sportfishing Association.

In a Jan. 6 statement, AFCA indicated that it would consider a legal challenge to the state’s decision.

The organization has 30 days to ask for judicial review, according to the state.

“This decision is puzzling,” wrote AFCA Executive Director Clark Penney in the group's response. “I want to thank the Lt. Governor, the Alaska Division of Elections and the Alaska Department of Law for doing their due diligence, however I struggle to see the logic or the legality of this decision.”

The Alaska Salmon Alliance quickly praised the decision.

“We are elated by Lieutenant Governor Treadwell’s decision to not certify this job-killing measure,” said Arni Thomson, executive director of the Alaska Salmon Alliance. “Though it was highly unlikely to ever pass, the Set Netter Ban would have instantly destroyed the jobs of more than 500 Alaska families who set net to make a living. We are happy to see it dead on arrival.”

The salmon alliance, the United Cook Inlet Drift Association, the Kenai Peninsula Fishermen’s Association, the city of Kenai and the Kenai Peninsula Borough Assembly had all officially opposed the initative.

The fishing groups had characterized it as allocative, which the State agreed with.

“Were this type of initiative permissible, voters could continue to reallocate stocks to any fishery simply by eliminating specific gear or particular means and methods of catching fish – for example, the next initiative might propose to eliminate purse seining, trawling, dipnetting, or catch-and-release sport fishing in particular areas to increase harvest opportunity for other types of users. This would ‘prevent ... real regulation and careful administration’ of Alaska’s salmon stocks, contrary to the purpose of the prohibition on initiative by appropriation.”

In a statement responding to the decision, AFCA’s Board Chair Bill McKay disagreed with the legal interpretation of the initiative.

“I am extremely disappointed in this decision," McKay wrote. "This initiative is clearly statewide and seeks no authority to regulate or allocate fisheries management in our state. We should be out gathering signatures today, not looking at lawsuits.”

11/12/2016 - 11:24am