Alaska News

Court sides with Cook Inlet salmon drifters, reopening contested area

Management of Cook Inlet is again in question after a district court judge threw out the rule that would have closed the Inlet’s federal waters to commercial salmon fishing.

The summary judgment, released Tuesday, sides with the plaintiffs from the United Cook Inlet Drift Association, a trade association representing the approximately 500 drift gillnet permit holders in Cook Inlet. UCIDA sued the National Marine Fisheries Service last year after the North Pacific Fishery Management Council, the body that manages fisheries in federal waters, moved to approve a rule that would close federal waters of Cook Inlet to all commercial salmon fishing.

Judge Joshua Kindred granted UCIDA’s request to vacate the rule closing the waters, saying the rule that the Fisheries Service had established was arbitrary, capricious and based in politics. Part of the reason for this was that in Cook Inlet, unlike elsewhere, the closure only applied to the commercial salmon fishery, not to the recreational one.

“While the State is certainly a stakeholder and should have input into the rulemaking, and federal agencies and State governments must work together to effectuate management of salmon stocks, it appears here that the State had an overriding interest in which alternative was selected,” the judgment states. “Furthermore, the record clearly establishes that (the rule chosen) was crafted as a thinly veiled attempt to ensure an absence of federal management, which conflicts with the Ninth Circuit’s holding in (UCIDA’s previous case.)”

This is not the first time UCIDA has been to court over this issue. It began more than a decade ago, when the North Pacific Fishery Management Council passed an amendment to its management plan that entirely delegated management of the Cook Inlet salmon fishery to the state. UCIDA, which disagreed with aspects of state management, sued and said that move was illegal; in 2016, a panel of federal judges agreed.

[Earlier coverage: Commercial fishermen outraged by state proposal to close much of Cook Inlet]

The rule went back before the council in 2017, which took nearly three years to come up with a new analysis and set of potential options for management. The fishermen and state and federal representatives worked together on a committee throughout to come up with options. However, during the council discussion, state of Alaska representatives said publicly for the first time that they wouldn’t agree to any kind of delegated management. The council instead opted in December 2020 to close the fishery area entirely.

The federal waters are economically important to the fishery. Depending on the year, about half of the value of the salmon catch for the drift fleet would come out of the federal waters, which would have been off-limits under the rule.

Erik Huebsch, the vice president of UCIDA, said he wasn’t surprised by the ruling but was pleased by its thoroughness.

“This was a very thorough ruling, and I thought that was important and I was really glad to see it,” he said.

However, what it means for the management of the fishery isn’t entirely clear. Huebsch says he didn’t think it pushes them back to square one — after all, affected groups and government representatives did nearly three years of work on options for management — but it does have to go back to the council now.

Representatives for the Alaska Department of Fish and Game couldn’t be reached for comment on the case. On Wednesday, Fish and Game announced an opening for the Upper Cook Inlet drift fishery on Thursday — including in federal waters — known as the exclusive economic zone, or EEZ.

“Please check with the appropriate federal agency regarding the Exclusive Economic Zone (EEZ) decision,” the announcement says.

A representative for the National Marine Fisheries Service said the agency would not comment.

Huebsch said UCIDA doesn’t want to see entirely federal management in the fishery, but the organization has argued for a long time that the state has been managing the fishery politically, in favor of the sport fishery. He said this new ruling helps confirm that UCIDA is in the right about the fishery’s management.

“The court has ruled once again that UCIDA’s position on salmon management here in Cook Inlet is legitimate and what the NPFMC and the state of Alaska has been doing is illegal,” he said. “The court has proven us right again, and this is even a stronger ruling than the last one.”

Though the summary judgment vacates the rule closing Cook Inlet’s federal waters, the judge denied part of UCIDA’s allegations related to the National Environmental Policy Act. UCIDA argued that the rule violated NEPA because the federal government failed to complete an environmental impact statement, but the judge said the group failed to establish why that was necessary.

The case was actually two consolidated into one: A second group of fishermen brought their own case against the Fisheries Service last year on the same topic, but making a different legal argument. The second case argued that the rule was illegal because of the standing of the North Pacific Fishery Management Council members under the constitution. The judge dismissed the second case, saying the plaintiffs did not have standing to make the argument.

Upper Cook Inlet’s salmon season is just kicking off, with sockeye beginning to arrive in the Kasilof River. As of Thursday, between the northern district setnetters and the drift fleet, only 14,943 salmon had been harvested, 13,418 of which were sockeye. Fish and Game hasn’t started counting the sockeye on the Kenai River yet, but the Kasilof River counts are ticking up, with 36,291 sockeye having passed the sonar as of Wednesday, according to Fish and Game.

Reach Elizabeth Earl at elizabethearl@gmail.com.

Correction: A previous version of this story misnamed NEPA, or the National Environmental Policy Act.

Elizabeth Earl for Alaska Journal of Commerce

Elizabeth Earl is a freelance reporter based on the Kenai Peninsula. Reach her at elizabethearl@gmail.com.

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