Court case is final hope for Cook Inlet driftnet fishermen facing federal restrictions

Editor’s note: This is the third and final story exploring the Cook Inlet commercial salmon fishery. You can read part 1 here and part 2 here.

A late-season bumper run of sockeye salmon has pushed the Kenai River to its highest escapement in more than a decade.

Unfortunately for the commercial fishermen in Upper Cook Inlet, they have had to watch many of them go by.

Over the course of the season, Alaska Department of Fish and Game biologists upgraded the estimate for the run’s escapement multiple times, upping the in-river bag limits for the sport fishery and opening some additional time for the drift gillnet fleet.

With the setnet fleet out of the water after July 20 because of poor king salmon returns to the Kenai, controlling sockeye escapements to the Kenai and Kasilof fell on the drift fleet and on the in-river dipnet and sport fisheries. Both rivers are ending their seasons significantly greater than the upper end of their escapement goals.

Fish and Game is projecting a final escapement in the Kasilof of 519,000 sockeye compared to the top end of the escapement goal of 320,000; the sustainable escapement goal for the Kenai River has a top end of 1.3 million and ADFG is projecting an in-river run of about 2.4 million sockeye.

Unless something changes, the drift fleet is likely to lose a major chunk of their fishing area at the end of this year, too.

The National Marine Fisheries Service is currently working its way through the regulations review process for a new fishery management plan amendment that will close the federal waters of Cook Inlet to salmon fishing. That section, known as the Exclusive Economic Zone or EEZ, covers the section of Cook Inlet that’s three nautical miles and farther offshore; drifters typically harvest half or more of their salmon from there during the season.

“For most of the fleet, the EEZ is the preferred area for fishing,” said Erik Huebsch, a drifter and vice president of the United Cook Inlet Drift Association. “Without access to the EEZ, the drift fleet cannot harvest enough salmon to meet expenses and cannot afford to operate.

“Without the drift fleet harvest, the seafood processing companies cannot afford to operate and will close their businesses. This is not speculation; this is exactly what has already been happening in the Cook Inlet salmon fishery.”

NMFS opened public comment on the proposed regulations through July 5 this year. If the regulations are finalized and approved by the Secretary of Commerce, the EEZ could be closed by Dec. 31.

[No longer making a living in Cook Inlet, young commercial fishermen head to Bristol Bay]

The closure

The fight over federal management of salmon in Cook Inlet goes back to 2012 and, some might argue, back to statehood itself.

One of the reasons Alaskans voted to pursue statehood in 1959 was to gain more localized control over fisheries management, wresting control away from the out-of-state processing companies and federal government.

Alaska has primary management control over fisheries in state freshwater and in marine waters out to three nautical miles offshore. After that, the federal government assumes primary management through the National Marine Fisheries Service.

The North Pacific Fishery Management Council develops fishery management plans, or FMP, for the fisheries in Alaska and the West Coast for the federal government, and historically has delegated or shared some of that management with the state.

Yukon River and Southeast salmon management, for example, are managed under federal authority of a treaty with Canada; Bering Sea crab fisheries are also jointly managed by the state and federal governments.

In Cook Inlet, that historic but informal delegation of authority to the state included the management of salmon fisheries. In 2012, the council made that formal by excluding the federal waters of Cook Inlet from its FMP through an amendment that permanently delegated management to the state.

The United Cook Inlet Drift Association, or UCIDA, sued and won at the 9th Circuit Court of Appeals in 2016, arguing that the federal government had to manage federal waters to comply with the Magnuson-Stevens Fishery Conservation and Management Act.

The council again took up the debate in response to the court order, and in December 2020 voted to support an option for a new amendment that will include Cook Inlet into the Western area salmon FMP and will close the EEZ to commercial salmon fishing.

NFMS approved the amendment on Aug. 12, according to a letter from Alaska Region administrator James Balsiger.

The controversy

UCIDA argues that the adoption of the new amendment to close the EEZ is illegal because of the State of Alaska’s actions. During the December 2020 meeting, Fish and Game Deputy Commissioner Rachel Baker told the council that the state would refused to accept delegation of authority with oversight from NMFS.

In a November 2020 email obtained by UCIDA and submitted to the court, Fish and Game Commissioner Doug Vincent-Lang told Ben Stevens, former chief of staff to Gov. Mike Dunleavy, that UCIDA and others were “lobbying hard” to require annual federal review of state management of Cook Inlet fisheries to ensure compliance with federal laws.

“John [Moller, former commercial fisheries adviser to Dunleavy] and I feel that opening our management to federal and outsider influence is the wrong choice, especially that it could potentially create a domino effect that would spread to other salmon fisheries across Alaska,” Vincent-Lang wrote.

“It would shift the allocation fight into federal bodies which will lead to calls for sport and personal use representation on the Council and take time away for state issues of priority at the council.”

UCIDA argues that this was in bad faith and undermined everything the stakeholders and NMFS had been trying to work on for several years.

Among multiple briefs filed Aug. 20, Huebsch wrote in a declaration filed with the 9th Circuit Court on that the members of the Cook Inlet salmon FMP committee, which included stakeholders and NMFS representatives, worked on three options to integrate federal management into the Cook Inlet salmon fishery.

“The Salmon Committee has significant interaction with NMFS and Council staff,” Huebsch wrote. “The Salmon Committee was never informed that the state would not accept a delegated program, or that Alternative 2 was infeasible. Had I been so informed, I would not have spent further time on Alternative 2, and instead would have worked on developing Alternative 3, which involves federal management of the fishery.”

UCIDA argues that the state had been planning to refuse delegation of authority long before the meeting in December 2020 and did not disclose it publicly, tying the hands of the council on the preferred alternative of most of the stakeholders, which would have been delegated authority with federal oversight.

The state argues that UCIDA’s requests — which involve federal oversight of salmon fisheries that reaches up into spawning beds and includes management of salmon escapement — are an overreach and undermine the state’s ability to manage its resources.

Several other emails submitted by UCIDA to the court show correspondence between NOAA and Fish and Game about the state’s preference for Alternative 4 to close the EEZ and between Baker and council member Andy Mezirow when Mezirow asked for “rationale points” about why he supported the state’s position.

Both are dated before the Dec. 7, 2020, council meeting.

A Dec. 3, 2020, email from Baker to Vincent-Lang relayed the input from NOAA General Counsel that the “the main outstanding issue is the need to identify conservation benefits that outweigh costs of closing the EEZ to commercial fishing participants.”

The consequences

The closure is likely to result in the loss of most fishing opportunity for the drift fleet. Many say they won’t be able to afford the startup costs of fishing in the Inlet without the promise of the harvest in the EEZ, and the rest say that it may not be worth it because the processors may not be there to buy the fish even if they do.

In the 2020 season, the average drifter in Cook Inlet made about $7,102, according to the Commercial Fisheries Entry Commission. That was the worst year in recent memory; a decade ago, in 2011, the average gross earnings were $65,753.

“I fish the lower part of Cook Inlet, specifically the EEZ area set to be managed by closing these waters,” wrote Robert Wolfe, a drifter in Lower Cook Inlet. “If this action goes forward my business will have to shut down due to the distance I would have to travel to Where (???) [sic] the State of Alaska chooses where we will fish. At this point we in Cook Inlet have no idea how future fishery will be conducted next year.”

There are currently two major processors with operations in Cook Inlet: Pacific Star Seafoods and Copper River Seafoods. Huebsch notes in his filing with the court that the loss of potentially 50 percent of the drift harvest is certain to affect their ability to make a profit in Cook Inlet for the season.

The 2021 season highlights the effect of the management regime, he said, with the drifters restricted to the expanded corridors away from the federal waters and the setnetters closed.

“This situation is untenable; processors are going bankrupt and commercial fishers face insolvency, all the while the state plugs the rivers with harvestable surplus salmon and NMFS and the Council do nothing,” he wrote.

The City of Kenai and state Rep. Sarah Vance, R-Homer, both submitted comments on NOAA’s proposed rulemaking change this summer opposing the adoption of the closure.

UCIDA is asking for the court to block the amendment or any other that would close the EEZ, order NMFS to prepare an FMP that addresses “the entire Cook Inlet salmon fishery, including state waters,” appoint a special master to oversee the proceedings and to award the organization all its legal fees.