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Alaska Supreme Court hears arguments in ongoing Kenai setnet debate

  • Author: Suzanna Caldwell
  • Updated: September 28, 2016
  • Published August 26, 2015

?The state's highest court heard oral arguments Wednesday on whether a proposed ban on commercial setnet fishing in Alaska's urban areas will be put to voters next year and had pointed questions about what the exact effects of such a ban might be.

At issue is whether the ban amounts to an allocation of state resources by popular vote, which is prohibited under the state constitution. Then-Lt. Gov. Mead Treadwell, with a supporting opinion from the state Department of Law, determined that was the case when he initially declined to certify the ballot initiative in 2014.

Backers of the initiative took the issue to court, where an Anchorage Superior Court judge overruled Treadwell's decision. Opponents of the measure appealed.

In early August, the state Division of Elections certified the 43,000 signatures needed to put the measure on the ballot for the 2016 primary election. But first, it must survive Supreme Court scrutiny.

Dozens of supporters filled the Anchorage courtroom Wednesday. Alaska Fisheries Conservation Alliance Executive Director Clark Penney estimated there were 75 supporters in attendance. United Fishermen of Alaska President Jerry McCune suspected there were at least 20 of his own commercial fishing supporters at the hearing. Even Justice Daniel Winfree noted the high turnout in his closing remarks.

"It's a hot issue; it's been going on for over 30 years," Penney said in an interview after the hearing. "People are really passionate about it and that's going to drive up the intensity and the focus."

Supporters of the initiative, led by the Alaska Fisheries Conservation Alliance, contend that the measure is a ban on gear, with a focus on conservation. They argue that setnetting is an outdated catch method that indiscriminately targets salmon. While the measure would ban commercial setnets in all the state's urban areas, it's targeted toward setnetters on the Kenai River who fish primarily for sockeye salmon, but also catch some king salmon in the process.

Setnetters contend they have fished in the region for over a century and that the initiative is the latest in sportfishing interests' attempts to force them out of the industry.

During the arguments, the justices worked to parse out where the line is drawn in terms of what constitutes an allocation of resources. The justices offered multiple comparisons to the attorneys, from hypothetically banning boats on the Kenai to previous court decisions on wolf snares versus traps.

Assistant attorney general Joanne Grace continued to assert the state's position that the initiative would circumvent powers given to the Alaska Board of Fisheries and the Legislature. She argued that a vote to ban the gear would wipe out the entire Cook Inlet setnet fishery and push the fish to other, competing user groups.

Matt Singer, attorney for the Alaska Fisheries Conservation Alliance, argued that the ban isn't an appropriation because the Fish Board and Legislature would still be able to maintain the commercial fishery, using other types of gear.

Opponents suggest that the initiative could create a cascade of bans on other resources if passed. Justice Joel Bolger asked Singer if a similar ban on setnets statewide would be constitutional. Singer told him that it would, though with some conditions.

"If there's a geographic spot where setnets were the only method of harvest and removing nets would mean no fishing by one group, that might be an appropriation," he told the court. "But we don't get anywhere close to that with this."

But in an interview following the hearing, McCune, of United Fishermen of Alaska, disagreed.

"This stretches far and wide," he said after the hearing. "It's not just Cook Inlet."

Grace asked the court to consider the looming ballot measure dates when making their decision. Winfree said the court would consider it while making its ruling in the coming months.

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