Appeal of setnet ban initiative to be heard Tuesday in Anchorage

ANCHORAGE — Oral argument in the Alaska Fisheries Conservation Alliance appeal of Lt. Gov. Mead Treadwell’s decision to reject a proposed ballot initiative to ban setnetting will be held in Anchorage April 22.

The alliance, or AFCA, wants to ask voters to ban setnets in urban parts of the state. If it passed, the initiative would eliminate setnetters in Cook Inlet.

Treadwell denied the initiative petition in January based on a Department of Law opinion that found it was a prohibited appropriation of state resources.

AFCA, however, has said that the effort is conservation-focused, and the voters have the right to make such a decision. The group filed an appeal of Treadwell’s decision in Alaska Superior Court Jan. 22.

The AFCA has said that banning setnets would help protect king salmon, which can be caught incidentally in setnets. While the ban would apply to urban areas of the state, it effectively targets Cook Inlet setnetters as the primary user group affected. Those fishers primarily harvest sockeye salmon, but also catch some kings in their nets. 

Both parties have agreed that there likely will not be a dispute over facts in the case or any need for discovery, which are necessary steps before a judge can make a summary judgment ruling.

AFCA and the state Department of Law have submitted their motions for summary judgment, opposition briefs and reply briefs in the suit. The newly-formed Resources for All Alaskans also submitted an amicus brief in the lawsuit, and asked to participate in the hearing as well. As of April 15, Judge Catherine Easter had not ruled on whether or not she would allow them to do so.

The legal question in the case is whether the ballot measure would be an unconstitutional appropriation by initiative, and much of the discussion in the two sides’ briefs revolves around the definition of appropriation.

Treadwell’s decision that the appropriation was inappropriate was based on a state Department of Law opinion that referenced a 1996 Alaska Supreme Court decision, Pullen vs. Ulmer, which maintained that salmon are assets that cannot be appropriated by initiative, and that preferential treatment of certain fisheries may constitute a prohibited appropriation.

The AFCA appeal argued that the initiative would not establish preferences among user groups and “retains for the Legislature and the Board of Fisheries full discretion as to how to allocate fish resources among competing users.”

RFAA has supported the state’s position. The group claims commercial fishers from throughout the state as members, although it is a Cook Inlet-based group, and members have said they are concerned about any precedent that could allow such fishery decisions to be made via ballot initiatives. 

Essentially, the state has asserted that by allowing voters to ban setnetters, in-river users would wind up with more fish, making it an allocation to that group. AFCA, however, counters that because the appropriation does not specifically give those fish to sport or personal use fishers, they remain available for the commercial sector as a whole.

Alaska Assistant Attorney General Elizabeth Bakalar and Senior Assistant Attorney General Michael Mitchell wrote on behalf of the state, however, that the Board of Fisheries has recognized the Cook Inlet setnet fishery as a separate fishery from the drift net fishery, and salmon are allocated specifically among the groups.

AFCA also asserts that just because the ban on setnets would change the current harvest structure, it does not mean the fish are actually being reallocated.

AFCA and the state’s Department of Law will each have the opportunity to testify at the lawsuit.

The April 22 hearing is scheduled for 3:30 p.m., and expected to take about an hour, according to the schedule discussed in February. It will be held at the Nesbett Courthouse in downtown Anchorage.

According to the timeline discussed in February, a decision will likely not be made at the hearing, but would come in a ruling later this spring.

AFCA lawyer Robert Misulich said in February that the planned timeline would meet AFCA’s desire to have the case heard at the state Superior and Supreme courts this year, so that the alliance could still collect signatures in 2015 and get the ban on the ballot in 2016.

It’s likely a final decision will come from the Alaska Supreme Court, as either the state or the AFCA can appeal the Superior Court’s decision to that body.

Molly Dischner is a reporter for the Alaska Journal of Commerce.