Credit:  Anchorage Daily News

Dunleavy Administration Enters Court Fight Alongside Feds to Keep Cook Inlet Fishing Grounds Closed

Copyright © 2022 Anchorage Daily News

By Elwood Brehmer
January 12, 2022

A judge granted the state’s motion to join the National Marine Fisheries Service as a defendant in a lawsuit filed attempting to reopen federal waters of central Cook Inlet to salmon fishing.

Alaska Gov. Mike Dunleavy’s administration will be fighting in court to keep much of Cook Inlet closed to commercial salmon fishing after a federal judge approved the state’s request to intervene in a lawsuit over the fishery.

U.S. District Court of Alaska Judge Josh Kindred granted the state’s motion Jan. 6 to join the National Marine Fisheries Service as a defendant in suits filed last fall by the United Cook Inlet Drift Association and individual fishermen in an attempt to force the agency to reopen the federal waters of central Cook Inlet to salmon fishing this coming season.

Often referred to as the EEZ — an abbreviation for its formal name, the exclusive, economic zone — the area currently closed by federal regulations this year covers all of the waters beyond 3 miles offshore in central Cook Inlet. Fishing would still be allowed in state waters up to the 3-mile line.

Intervening in the consolidated lawsuits also puts the state in the odd legal circumstance of arguing alongside the federal government in court to prevent what Dunleavy administration officials insist would be a gross example of federal overreach.

State attorneys wrote in their intervening motion that if UCIDA were to win their suit, “Alaska would face the prospect of NMFS being forced by judicial order to manage fisheries in Alaska’s sovereign waters, and without the preemption procedure required by the (Magnuson-Stevens Act).”

At issue is not just what boundaries will be placed on the Inlet fleet, but likely the fate of the otherwise viable, productive fishery, according to UCIDA President David Martin.

“If the EEZ is closed, basically commercial fishing in Cook Inlet is going to be put out of business,” Martin said.

The offshore area extending north from roughly Anchor Point accounts for roughly 20% of the total Cook Inlet salmon harvest and nearly half of the drift gillnet fleet’s catch, according to a North Pacific Fishery Management Council analysis of the fishery.

The council voted in December 2020 to close the Cook Inlet EEZ to commercial salmon fishing after state officials would not agree to the terms of co-management of the Inlet’s salmon runs or federal oversight presented to them — an attempt to comply with a 9th Circuit Court of Appeals ruling in a prior lawsuit by UCIDA.

Commercial fishing in the EEZ remained open last year as the council went through the process to finalize the rule, which happened in November.

The 2015 ruling directed the council to draft a fishery management plan for Cook Inlet salmon that covered the entire range of the highly transient species. A prior plan delegated management authority over the EEZ to the state, which spurred UCIDA’s first lawsuit.

Salmon management has largely been deferred to the state, in part because the species is managed by escapement goals in the rivers, which are in state jurisdiction.

Fish and Game manages salmon returns to a variety of rivers and oversees subsistence, sport, commercial, and personal use fisheries throughout the basin. That’s gotten more complicated over the past few decades as the populations of Anchorage, the Kenai Peninsula, and the Mat-Su have grown, personal-use fisheries have been established, and sport fisheries have become major economic drivers for tourism.

Fish and Game officials told the council in 2020 that closing the EEZ might lead to a decline in the drift fleet’s harvest, but the variable nature of salmon fishing made it difficult to quantify the likely impacts.

Martin questioned whether the two processors still operating on the Kenai Peninsula would open if the EEZ remains closed this year.

“It’s the state systematically putting the Cook Inlet commercial fisheries out of business,” he said.

A spokesman for Dunleavy said the administration couldn’t comment on the situation while the lawsuit is pending.

Agreeing to close off a large portion of the drift fleet’s fishing grounds is the latest, and likely the most dramatic, step taken by state regulators under Dunleavy to squeeze commercial fishing in the Inlet, Martin said, whether it’s the drifters or east side setnetters. Both groups primarily target sockeye bound for the Kenai and Kasilof rivers.

The Kenai River Sportfishing Association was the only group to support the original proposal to shut down commercial fishing in the EEZ when it was before the council.

KRSA founder Bob Penney donated more than $350,000 to a political group that supported Dunleavy’s 2018 campaign for governor. Penney’s grandson, Clark Penney, was also issued a since canceled no-bid contract to work on projects for the state’s development bank in the months after Dunleavy took office.

The Board of Fisheries also took several steps at its 2020 Upper Cook Inlet meeting to increase in-river objectives for salmon runs on the Inlet’s major river systems and limit the likelihood for commercial fishermen to catch king and coho salmon, citing the need to conserve some stocks and the desire to increase sport fishing opportunities for others.

The drift fleet was down to about 250 permits last year, down from a historic peak of nearly 570 participants, according to Martin.

Fish and Game Deputy Commissioner Rachel Baker, the state’s representative on the council, acknowledged the situation has put the state in somewhat of an odd position but insisted department officials were faced with two bad options. The challenges of Cook Inlet salmon management were further exemplified by the fact that it took the council nearly six years — right up to its deadline — to reach a decision, she said.

The structure of NMFS oversight for management delegated to the state would have interfered with the way the state manages salmon fisheries to the point that “it just wouldn’t work,” Baker said. “We just couldn’t live by those requirements, frankly.”

The other alternatives dictated to the state created inefficient and duplicative management structures led by NMFS, an agency with no salmon management experience, according to Baker.

“The court didn’t mandate how the council or the National Marine Fisheries Service or the state would manage the Cook Inlet EEZ, all the court order said was that the council’s fishery management plan for salmon had to somehow include the Cook Inlet EEZ,” she said.

Baker also stressed that state officials understand the importance of commercial salmon fishing to the Kenai Peninsula’s economy and way of life. More than 75% of Cook Inlet permit holders are area residents based on state permit data, one of the highest rates of local participation among the state’s major salmon fisheries.

“I don’t think any of us are glad we ended up here,” she said. “It was just a series of very unfortunate events.”

Martin said the drifters just want the state to follow the law.

“The Magnuson-Stevens Act has the 10 national standards on how fish are supposed to be managed. We would like the state to manage it but under the legal guidelines of Magnuson and other applicable laws,” said Martin. “They said they don’t want to do it.”

Judge Kindred also agreed to an expedited hearing schedule on Jan. 6 in an attempt to resolve the case before the late June start to the Cook Inlet sockeye season, but not on quite as quick of a timeline as the fishing group requested.

Kindred scheduled oral arguments in the case for April 15, with a decision following “as soon as practicable, but not later than June 20, 2022,” the scheduling order states.

UCIDA had requested the April 15 hearing date but also asked for a ruling deadline of May 15.