Alaska Supreme Court to consider setnet ban initiative later this year

The Alaska Fisheries Conservation Alliance filed its final brief with the Alaska Supreme Court on March 5 to allow a ballot initiative that would ban commercial setnet harvest in five non-rural areas around Anchorage, the Kenai Peninsula, Valdez and Juneau. If allowed, the initiative could be on the Alaska Primary Election Ballot as early as August 2016.

Following receipt of the brief, the Alaska Supreme Court will receive a reply from the State of Alaska. A final decision will be made following oral arguments expected later this year.

“Typically the court hears arguments a few months after the briefing,” said Matt Singer, who is representing the alliance, or AFCA. “I would expect it in summer or early fall.”

The initiative would ban Upper Cook Inlet setnetters who target sockeye salmon for commercial harvest. Their permits also allow to them to harvest other salmon species, including kings, that swim into the nets.

AFCA is largely comprised of sport fishing stakeholders and one of the members of its board of directors is Bob Penney, the founder of the Kenai River Sportfishing Association.

Eliminating setnetters in Cook Inlet would likely result in increased catch for in-river sport fishermen, personal use fishermen and for the fleet of commercial drift boats targeting sockeye.

The ballot’s authors deny that their initiative is anti-commercial.

“I want to be very clear that AFCA supports commercial fishing as a whole,” said AFCA board member Derek Leichliter in a written statement. “We simply want to see one devastating means of take thrown out for the sake of conservation.”

AFCA president and Soldotna lodge owner Joe Connors, who refers to setnets as “walls of death,” says the organization has only conservation of the resource in mind, as setnets are a non-selective gear type in a time of crashing chinook salmon stocks.

“It has nothing to do with allocation,” Connors said in a telephone interview. “There’s not a single word about giving anybody anything in our proposal. It’s about not killing salmon.”

Connors said AFCA’s non-allocative stance should be evident considering the group’s opposition to the Ninilchik Traditional Council’s allowance by the Federal Subsistence Board for a subsistence gillnet on portions of the Kenai River. AFCA recently filed a request for reconsideration on the Kenai gillnet measure, and Connors believes the state’s own rationale supports a commercial setnet closure.

 “When the state was interviewed about it, and the federal people were, and they both said things that support our initiative,” said Connors. “They said that setnets are indiscriminate, they target anything, and fish caught in those nets will probably not survive. We couldn’t have bought that kind of support for a press release.”

To qualify for the ballot, initiative sponsors must gather signatures of qualified voters equal in number to 10 percent of those who voted in the preceding general election and are residents of at least three-fourths of the House districts and who, in each of the house districts, are equal in number to at least 7 percent of those who voted in the preceding general election in the House district. AFCA has chipped away at the 30,000 or so signatures it needs during legal proceedings.

The brief is the latest in a drawn-out legal battle regarding the legality of the initiative.

AFCA filed the original ballot initiative petition in November 2013 seeking to ask voters whether to ban setnets in urban parts of the state.

Former Lt. Gov. Mead Treadwell struck down the initiative in January 2014, based on a state Department of Law opinion asserting that it would be a prohibited appropriation of resources, which are not allowed for ballot initiatives.

Commercial fishing group Resources for All Alaskans, or RFAA, filed an amicus brief supporting Treadwell’s position that the initiative represented an appropriation of state resources, a prohibited measure under the state constitution, and also argued that it would be an effort to enact local or special legislation by ballot initiative.

Anchorage Superior Court Judge Catherine Easter overturned Treadwell’s decision not to certify the proposed ballot initiative in a July 23, 2014, ruling and ordered the lieutenant governor to certify the initiative and allow proponents to continue the process toward getting the question on the 2016 ballot.

 “(The initiative) does not result in a give-away program or usurp legislative control over the salmon allocation process,” Easter wrote.

The State of Alaska challenged Easter’s ruling, citing Pullen vs. Ullmer, a 1996 Alaska Supreme Court decision that ruled salmon were public resource and therefore exempt from allocation by legislative action of any kind, including ballot initiatives.

“The State plans on appealing the Alaska Superior Court’s decision in the set-net ban initiative case (Alaska Fisheries Conservation Alliance v. State) once the final judgment is filed,” Mills wrote in an emailed statement in August 2014. “Alaska’s Constitution requires sustainable and responsible allocation of our fisheries for the benefit of all Alaskans. The Alaska Constitution also prohibits use of the initiative process for appropriations, including appropriations of our resources.

“We believe the Superior Court erred in finding that the proposed ban on set-netting does not amount to an appropriation and look forward to presenting our arguments before the Alaska Supreme Court.

Singer argues that Alaska’s history has examples of ballot initiative usage aimed at fish and wildlife conservation, notably the banning of fish traps upon Alaska’s entry into statehood and the banning of wolf snares, as well as an initiative to ban aerial wolf hunting.

He advocates public’s right to weigh in on fish and wildlife management using the ballot initiative process should be interpreted broadly, with the appropriations limitation interpreted narrowly.

DJ Summers can be reached at daniel.summers@alaskajournal.com

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