The United Cook Inlet Drift Association, the North Pacific Fisheries Management Council, the National Marine Fisheries Service and its overlying organization, National Oceanic and Atmospheric Administration are having trouble coming to agreement on a U.S. Supreme Court order to work out a Fisheries Management Plan to regulate salmon fisheries in Upper Cook Inlet.
Last October, the U.S. Supreme Court denied the State of Alaska’s petition to hear a case from the 9th Circuit Court of Appeals seeking to overturn the UCIDA lawsuit that challenged the Council’s decision to confer management of the Upper Cook Inlet salmon fishery to the state.
Because the drift fishery takes place largely outside of the Exclusive Economic Zone, beyond 3 miles from shore and in federal waters, UCIDA successfully argued that the fishery should be managed according to the federal Magnuson-Stevens Act.
The basis for their argument that it requires a federal FMP even in state waters is a clause in MSA requiring sustainable management of a stock “throughout its range,” which the courts and UCIDA interpret as spawning grounds to ocean rearing grounds and back again.
However, counsel for NOAA’s Alaska Section, Lauren Smoker, is arguing that the UCI salmon fishery does not constitute one single fishery.
“At no point in the decision does the Ninth Circuit suggest that the FMP did, or should, include State waters and State water salmon fisheries,” she wrote. “The decision does not describe the ‘fishery’ in question as including State water salmon fisheries managed by the State, or conclude that State water salmon fisheries are under the authority of the Council and NMFS.”
UCIDA board member Dino Southerland begs to differ and says that Smoker’s legal argument is the same one that lost all the way to the U.S. Supreme Court.
“The Council is taking legal advice from the very same team that lost and got their (rear ends) shellacked by UCIDA in the 9th Circuit, and by extension the U.S. Supreme Court not taking up the State of Alaska’s appeal as a co-defendant,” Southerland said.
He maintains that NOAA and the Council are required to produce an FMP.
“We made sure of that legally by winning all the way through the Supreme Court of the United States,” he said.
UCIDA has argued consistently that under state management, too many salmon have been allowed back onto area rivers and streams, causing lost harvest opportunity and impacting long-term sustainable salmon harvests.
While neither side has determined what the next steps might be, it is likely that those steps will include going back to court.
One thing that seems fairly certain is that the Council is required to establish a task force or committee made up of stake-holders to hash out what an FMP will look like.
After pressure from UCIDA, the Council passed a motion to form such a committee to weigh in on the FMP writing process. The scope of that work includes providing recommendations to the Council on specific management measures, bycatch reporting and the social, economic and community impacts of that management, as well as other measures required in the 10 National Standards outlined in the MSA.
Those include using the best available scientific data, managing for optimum yield, and efficiency in harvesting.
What is less certain is who will be allowed to serve on that committee.
A letter from James Balsiger, the Alaska administrator for NMFS, to Council chairman Dan Hull recommended the Council “initiate a determination as to whether the sport fishery for salmon in the West Area (Exclusive Economic Zone) requires conservation and management,” which will probably determine whether sport fishermen can serve on the committee.
However, Southerland said they want it both ways, allowing people with no dog in the fight to serve on the committee.
“There have been lots of applications from people that are not in the (drift) fishery that want to be on this committee,” he said. “According to NOAA’s general counsel, the FMP can only affect waters in the (Exclusive Economic Zone, outside 3 miles); therefore (members of) the committee can only have members who hold stake in the EEZ, which is drift fishermen and processors. There is no sport fishing in the EEZ, no charter fishing, no guided sport, no personal use. So if they continue this, by their own definition they can only put people from the drift fleet and processors on the committee.”
He added that it is still a ruling that UCIDA disagrees with.
Southerland said it could sway their opinion if it was explained that way to other stakeholders in the fishery, but they want it both ways.
“They don’t want to have an FMP that would affect the entire fishery such as habitat, predation, invasive species,” but they want to be on the committee that drafts it, he said.
Cristy Fry can be reached at firstname.lastname@example.org.