AD Main Menu

Upset sockeye setnetters sue Alaska for not offering 'extra' openings

State of Alaska photo

Commercial fishermen who lost millions of dollars when the state of Alaska shut them down to protect weak runs of Kenai River king salmon last year are mad as hell, and they're not going to take it anymore.

Though the fishermen in question -- setnetters who work the Cook Inlet beaches near the mouth of the Kenai -- have this year been allowed to fish two traditional openings per week, the Cook Inlet Fishermen's Fund is going to court insisting that is not enough.

A 19-page lawsuit filed against the Alaska Department of Fish and Game argues the agency has violated a Board of Fisheries-approved plan that should give setnetters an extra 51 hours of fishing time via "emergency orders." EOs, as they are commonly called, are issued when massive schools of red salmon start to move along Inlet beaches.

More than 4 million of the fish were projected to return to the Kenai this year. The setnetters say they are again losing money by not being allowed to catch their fair share of those fish. The state says the reason the setnetters haven't been allowed more fishing time is that the reds are mixed in with king salmon, and the late-run of Kenai kings is again weak.

The early run bordered on a disaster despite the fact it wasn't fished. Only about 2,000 of the big fish returned, far less than half of the optimum escapement goal of 5,300 to 9,000 kings. Fisheries biologists talk about spawners in terms of the number of fish escaping to spawn, hence the term "escapement."

"We're cautiously optimistic about the late run" reaching the minimum goal, state fisheries scientist Bob Clark said Wednesday, but only if the run is carefully managed. This is the idea the Fishermen's Fund objects to.

"It is important to note that the (Kenai) Management Plan states that the Department shall close all three fisheries (commercial, sport and personal-use dipnet) if the projected run is below 17,800 kings," the suit says. "It may not restrict (the sport fishery) to catch and release. It may not close the fishery to drift or set gillnet fishermen. Its only options are to leave the fishery open or close the entire fishery."

Two setnetters say they lost half a million last year

Attorney Matt Mead said that is what his clients wants the state to do even if it could mean setnetters would again be sitting on the beach, along with everyone else, losing millions of dollars. Two setnetters who filed affidavits to support the Fishermen Fund lawsuit say that between them they lost $500,000 to $600,000 when the fishery was closed last year.

About 450 permit holders work beaches on the east side of Cook Inlet with setnets. Some of them were given the permits by the state when Alaska imposed limited entry in the commercial fishery 40 years ago. Others have over the years since 1973 bought permits from those originally given them. Under the Alaska limited entry system, the permits became the property of the fishermen.

They contend the state is diminishing the value of that property by failing to let them fish.

"One CIFF set gillnet permit holder estimates a loss of $20,000 for each missed day of fishing," the lawsuit says. That's down from the $30,000 per day loss the Cook Inlet Fishermen's Fund cited in an earlier letter to Commissioner of Fish and Game Cora Campbell demanding an immediate opening of the emergency fishing periods.

Having failed to get Campbell to even respond to that demand, Mead said his clients plan to go into court as soon as they can to get a judge to order Fish and Game to let them fish. The setnetters appear to be gambling that if Fish and Game is told to follow the management plan -- as the Fishermen's Fund interprets it -- the agency will balk at closing the extremely popular dipnet fishery and the valuable king-salmon sport fishery and instead opt to give setnetters extra openings -- even if that imposes some threat to king-salmon stocks.

As it stands now, the dipnet fishery is killing few, if any, kings. If a dipnetter accidentally catches one, he or she is required to immediately let it go unharmed. Some of those fish might possibly die, but no one knows how many. Meanwhile, most of the Kenai is closed to sport fishing, except for a small stretch of the lower river that remains open to fishing for kings with a single, unbaited hook lure. The restriction is expected to limit the sport catch to a few hundred fish.

No love lost

The possibility of catching one of those fish is what keeps alive Kenai guide businesses, which attract anglers from across the country and around the world. The guide businesses, in turn, support a sizable segment of the Kenai tourism economy, but the setnetters are of the opinion that if they can't fish extra periods, the guides shouldn't be fishing at all.

There is no love lost between the two groups.

Dan Coffey, a former member of the regulation-setting Alaska Board of Fisheries and an Anchorage attorney who has represented sport-fishing groups, said Tuesday he can't understand why setnetters want to risk catching more king salmon when the fish are already in trouble. Coffey said he expects sport fishing interests to intervene in the lawsuit to try to save the fish. Coffey paints the commercial fishermen as greedy.

The setnetters insist they are as conservation minded as any other Alaska fishermen, but the suit does provide sport and personal-use fishermen some ammunition with which to argue otherwise.

"I estimate my losses from the 2012 closure to be approximately $300,000 to $400,000," fisherman Mark Decker says in an affidavit attached to the suit. "My permit site abuts the drift gillnet fishery near the Kasilof River. On Saturday, July 13, 2013, I watched as drift gillnet boats fished directly next to my set gillnet buoy....The Commissioner (of Fish and Game) prevented set gillnet permit holders from fishing out of a fear for king salmon, but drift gillnet fishery, using the same nets I use, fished within inches of my site."

Fish and Game biologists say they made heavy use of the drift fleet to intercept Kenai red salmon only because the drifters catch significantly fewer kings than setnetters in the process. Decker, as it turns out, is really Mark Ducker, a man who has been vocal about what he sees as problems with a state sonar that counts fish swimming up the Kenai River.

In Ducker's view, the problem isn't a lack of fish but a sonar that fails to count all the fish. He produced his own report on the subject last fall, titled "What Caused the King Disaster in 2012 in UCI – ADF&G – and Their Perfect Storm of Incompetent Actions."

Mead said Ducker was accidentally misidentified and a corrected affidavit has been filed.

"It was all done in a very hurried fashion," said the attorney, who notes he and colleagues have been rushing to get the suit before a judge before the fisheries close in August. The suit reiterates Ducker's claims that a Kenai sonar undercounts king salmon.

"Beginning the week of July 8, Alaska Department of Fish and Game biologists told CIFF members that the DIDSON sonar counters were under-counting king salmon at a rate of 100 to 400 percent below what the actual numbers were," the suit says. "In other words, the fish weir was confirming that there were between two and four times more fish in-river than what the department's counters were indicating."

That's not quite accurate. The U.S. Fish and Wildlife Service did this year operate weirs on the Killey and Funny rivers -- the Kenai's two major king-salmon spawning tributaries. And those weirs did count slightly more fish than the sonar. But no one is clear yet on what that means.

'Really small fish' 

"We haven't determined that there is an undercount," Clark said, noting the agency is still gathering data on the size of the fish passing through the weirs among other things. "We are seeing a lot of really small, 1-1 fish ... More than you normally see."

The sonar is set up to count big, mature fish that come back heavy with eggs and ready to spawn after years in the ocean. The 1-1 fish -- one year in fresh water, one year in the ocean -- are small and lack reproductive capability, making them largely meaningless in terms of spawner counts.

Clark admitted the sonar isn't perfect. After four years in use, the state is still trying to sort it out. But, he added, it is at the moment the best tool biologists have for trying to access king runs in what is a very difficult time. King returns have been weak over much of the state for years, although some fisheries showed improvement this year.

"The Commissioner," their suit alleges, "has decided to once again ignore the Plan and unilaterally manage the fishery under her own terms. As in 2012, this practice is again resulting in millions of lost dollars to CIFF's permit holders. CIFF members have only fished a total of 28 extra hours this season....

"In the case at hand, CIFF individual set gillnet holders are suffering financial losses for each hour the Department unnecessarily and inappropriately keeps the fishermen from fishing in violation of the management plan."

Mead said he is trying to get the case before a judge as quick as possible to get that fixed.

Contact Craig Medred at craig(at)alaskadispatch.com