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Superior Court hears arguments over proposed commercial setnet fishing ban

Suzanna Caldwell

A group looking to ban commercial setnet fishing in urban Alaska took its challenge to state Superior Court Tuesday, hoping a judge will overturn a decision by the lieutenant governor to not let a voter initiative head to the ballot.

Matt Singer, representing the Alaska Fisheries Conservation Alliance, argued that the state's refusal to allow the initiative to go to voters was fundamentally flawed because Alaska voters have long made decisions related to protecting fish and game. The state disagrees, saying the initiative is unconstitutional because it involves resource allocation, a matter reserved solely to legislative bodies. It also contends that the initiative would wipe out an entire fishery, and that just asking people to switch gear is more complicated than it may appear.

"The measure may conserve, but it confers greater access to a majority group by wiping out a minority group," Assistant Attorney General Libby Bakalar argued on behalf of the state before Superior Court Judge Catherine Easter.

But Singer said the initiative does not involve allocation, merely a restriction on gear with conservation in mind. He called setnetting an "antiquated and outdated way of fishing that is indiscriminate in how it gets fish." Alaskans have taken other issues related to harvesting resources to the ballot before -- including wolf snares, bear baiting and two efforts to limit aerial wolf hunting. Singer sees no reason why banning setnets shouldn't fall into the category.

"That's why we think the decision is erroneous and sets a bad precedent," he said in a post hearing press conference.

While the proposed initiative is targeted at urban areas -- which includes the Matanuska Susitna Borough, Ketchikan, Juneau, Valdez, Fairbanks and most areas around Anchorage -- the true fight lies on the Kenai Peninsula, home to 55,000 people, where fishing is the economic lifeblood of the region.

Each year commercial, sport and personal-use fishers descend on the Kenai River to scoop up millions of sockeye salmon that move from Cook Inlet into the river. Among those sockeye are a few precious Kenai king salmon. Once known for their size and abundance, kings have been on a steady decline in recent years. Last year, only 17,000 fish swam past the Kenai River sonar -- down from 26,000 in 2012. While that met the river's escapement goals -- or the number of fish state biologists believe must return to the river in order for the fishery to survive -- it was just barely above the low end of the escapement goal range. Only 19,700 fish are expected to return to the river this year -- not much above the minimum escapement goal of 15,000 fish.

With poor fishing in recent years and a bleak outlook for 2014, managers have tried to figure out how to best conserve the fish, placing burdens on in-river users and the commercial fleet. In 2012, setnetters were barred from fishing for most of the season and faced harsh restrictions a year later. The in-river sport fishing users are already seeing conversation measures for this summer. Fishing for early-run kings was preemptively canceled by the Alaska Department of Fish and Game, citing the low early run forecast.

The argument of who should share the burden of conservation has long been argued. Jerry McCune, president of commercial fishing group United Fishermen of Alaska and board member of Resources for All Alaskans, the interest group that opposes the ballot initiative, disagrees with the opposition's argument. He contends initiative would wipe out an entire fishery, transfering the resource to other groups. That makes it an allocation issue, he said. 

He also worries about the implications of the initiative passing. Would it set a precedent allowing someone to come back and ban oil drilling in the same region or potentially ban sport fishing all together?

"It would be totally out of control," McCune said.

Singer doesn't think that would happen, and noted in his argument at a later press conference that the initiative doesn't intend to wipe out commercial fishing. Other methods of commercial fishing might be more appropriate to target fish in the region, like commercial dip netting or beach seining.

But he said regulations always create "winners and losers," people who will like it and those who will not. He said the aerial wolf hunters were upset over new regulations, but found a way to continue hunting.

"Certainly, this group is sensitive to setnetters and their legitimate concerns," Singer said. "But that doesn't mean we use an irresponsible method of fishing that causes all kind of bycatch, especially when there's a species at risk."

Judge Easter said she would issue her summary judgment within 60 days. If she overrules the state's decision, the initiative supporters hope to collect enough signatures to have the measure on the ballot in August 2016.