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Small Alaska charters sue big government over halibut

Aaron Jansen illustration

Largely abandoned by state tourism and small-business interests, a group of skippers who run small halibut charter boats in Alaska went into a federal court in Washington, D.C., Monday to try to stop the U.S. government from running them out of business.

Four Alaska charter companies and Charter Operators of Alaska challenged as arbitrary and capricious a new federal regulation to limit the number of charter boats in Alaska. The new rule is expected to put 327 fishing operations out of business. A motion for a preliminary injunction against the rule seeks to prohibit the U.S. Department of Commerce from enforcing the regulation until the courts can rule on its legality.

The National Oceanic and Atmospheric Administration's Fisheries Service earlier this year imposed a charter halibut permit program designed to shut down about a third of the halibut charters that fished state waters last year. The NOAA program is designed to limit competition between the charter operators, whose clients catch about 10 percent of Alaska's halibut, and commercial interests that catch more than 80 percent.

Charter operators' spokesman Jack Roskind said a decision was made to file suit in the nation's capital because of the feeling on the part of the charter businesses that the whole fisheries management system in Alaska is stacked against them. The reaction among state political leaders to the chaos in the charter business has largely been a big "so what."

"They (all) told us they're not going to help us in any way," said Roskin. "That's why we filed in D.C. There's too much commercial interest in Anchorage and Juneau."

The charter operators contend the new NOAA regulations ignore the federal "Halibut Act" and fail to meet Magnuson-Stevens Act requirements for the review of economic impacts in federal fisheries off Alaska's coast. The suit also questions whether the new halibut rules abide by Magnuson-Stevens Act requirements for fair and equitable access to fishing opportunities. The NOAA plan, the suit says, is "not fair and equitable to all halibut fishermen."

The Halibut Act is a federal law that ties the U.S. government to international management of halibut stocks that migrate around the North Pacific Ocean. It dictates that all halibut harvests be "reasonably allocated to promote conservation." But in the latest case the attorneys for the charter operators argue, no consideration whatsoever was given to conservation.

The NOAA plan, the suit alleges, "only seeks economic consolidation of the charter industry." The new rules, the suit says, are "based solely on economic allocation and not conservation."

"We are reviewing the suit,'' said Alaska Region NOAA spokeswoman Julie Speegle in Juneau. She did not know when the review would be complete and added that NOAA doesn't usually comment on lawsuits anyway.

Charter Operators of Alaska has for months been publicly protesting the new restrictions as little more than a halibut grab by powerful commercial fishing interests, but the organization has had little luck in gaining much in-state support.

The two-thirds of charter halibut operators gaining NOAA permits are largely supportive of the new program because of potential financial rewards. Along with limiting competition for clients, the program hands out permits that could be very valuable. Once charter businesses get permits, they are free to traffic in them.

Some are already being offered for sale, along with charter boats, at prices in excess of $300,000, despite lingering questions about the legality of the new permit plan. The NOAA plan is the first foray by the federal government into limited-entry for sport-fishing-related businesses.

The plan, like other federal programs for limiting participation in fisheries off the Alaska coast, is largely modeled on the state limited-entry program for commercial salmon fishing. That now decades-old program made salmon permits in the 49th state sometimes worth hundreds of thousands of dollars. The program has been a gold mine for commercial fishermen looking to retire or cash-out of business for other reasons.

Commercial fishing interests in Alaska have argued that there is no reason sport fishing businesses in the state shouldn't be brought under a similar limited-entry system, although consumer advocates point out that artificial, government-ordered restrictions on competition between charters will inevitably drive up the price of a charter for the average angler.

Despite this probability, Roskind,said his organization has found little traction in trying to rally opposition in Alaska to the new federal rules. Roskind is president of the charter group and runs a business out of the small port of Whittier about 50 miles southeast of Anchorage.

"Even Ron Peck with the Alaska Tourism Industry Association sent us a letter saying, 'We can't help you,'" Roskind said. "Senators (Mark) Begich (D) and (Lisa) Murkowksi (R) have been no help whatsoever. (Rep.) Don Young at least did get some feedback from NOAA that at least helped us. They stated that the cutback in the halibut charter is not a conservation issue, but to manage the charter fleet."

The North Pacific Fisheries Management Council -- an organization dominated by large commercial fishing interests in Alaska and Seattle -- has been the driving force behind the idea of regulating the charter fleet to minimize its catch. In 2009, the last year for which comparative figures are available, the charter fishery in Cook Inlet and the northern Gulf of Alaska -- what fisheries managers called Area 3A -- caught about 2.73 million pounds of halibut. The commercial fishery in the same area caught 21.7 million pounds. There is less disparity in Southeast, where the commercial catch in 2009 was about 5 million pounds versus a charter catch of 1.1 million.

No matter the catches in either the sport of commercial fisheries, both sides inevitably want more of what is a limited pie. Commercial fishermen say they have been robbed of halibut by charter fisheries allowed to grow uncapped by a limited on the number of boats. Charter skippers say commercial fishermen get too big a share of the catch already.

The commercially dominated council has often tried to mask these allocation disputes as a conservation issue, especially in the Panhandle where the catch by charters has been growing even as the allowable catch for halibut has been pushed downward because of natural fluctuations in halibut stocks. With halibut in decline, commercial fishermen have argued they are the ones about to be forced out of business if charter catches aren't capped for "conservation" reasons. The only alternative to maintain conservation is, of course to shift the allocation of the allowable catch of halibut from commercial to sport fisheries.

Both sides have valid arguments. The commercial catch limit for the area this year is only 2.33 million pounds, down a whopping 47 percent from last year when the catch was down about 600,000 pounds from 2009. Meanwhile, the guideline harvest level for the Southeast charter fishery for the summer is a fraction of the commercial catch at 788,000 pounds with a problem bigger than just poundage.

To keep the catch at or below the guidelines, the federal fisheries service -- along with putting a bunch of charters out of business this year with its new limited-entry plan -- has imposed onerous catch restrictions.

Charter anglers in Southeast Alaska are now limited to only one halibut per day, and it must be under 37 inches long. Many charter businesses have expressed doubt they can survive in light of that rule. A 37-inch halibut is estimated to weight 25 pounds or less. The charter operators say it was hard to attract business last year when the daily bag limit was cut to one fish, and it will be even harder with a daily bag limit of one fish and a requirement anything bigger than 25 pounds be released.

Many skippers of small charter businesses said it almost seems like there is a government plot to drive them under. And Roskind seemed a little baffled as to why state officials and business leaders seem unable to recognize the economic fallout associated with what is happening.

Alaska Gov. Sean Parnell, a loud and vocal critic of federal intervention in the management of nearly all other resources in the 49th state, has been strangely quiet on the issue of management of the halibut fishery. But he hasn't been alone in that regard. Roskind said not even many local officials are willing to speak up.

"We've been to the chamber meetings and to the city council meetings asking for help," Roskind said. "I even asked the state chamber to help and nothing."

Either they just don't understand that a lot of the money associated with the commercial halibut fishery goes south, whereas that invested in charter businesses -- which tend to be small mom-and-pop operations -- stays local and rolls over, he said, or they just don't care. People who come to Alaska to fish halibut help fill the hotel room that fund bed taxes in Anchorage and elsewhere, Roskind said, and they spend money in communities dependent on local sales taxes, and generally spread cash around the state as they go on sightseeing journeys between Alaska airports and halibut ports.

This is not big business, charter operators admit, but it is locally important to many of the state's smaller coastal communities. Unfortunately, some charter operators said, the city fathers in many of those places appear reluctant to speak up because of connections to powerful commercial fishing interests or existing charters looking to make money off the new federal rules.

Contact Craig Medred at craig(at)alaskadispatch.com.

Editor's note: To download .pdf files of key court documents filed on behalf of plaintiffs in the lawsuit reported above, go to the Charter Operators Association's main webpage.