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Judge voids new salmon regs for Inlet

Posted: July 26, 2011 - 7:29am  |  Updated: July 26, 2011 - 8:04am

An Alaska Superior Court judge tossed out emergency revisions to Upper Cook Inlet salmon regulations July 13 and reignited a battle sports fishing groups thought they'd won at the Board of Fisheries meeting in March.

Combined with a huge and potentially historic surge of sockeye flooding the Inlet, sports fishing groups are now concerned that years of effort to protect Northern District salmon stocks and Kenai and Kasilof river kings will be undone by liberalized commercial fishing effort targeting reds to prevent over-escapement.

With the sockeye running strong and the Cook Inlet harvest already halfway to the forecast of 6.4 million as of July 18, the Superior Court ruling saved the Alaska Department of Fish and Game from what would have been a difficult decision to use its authority to allow expanded commercial fishing and thereby go outside the management plan approved by the board at an emergency meeting June 30.

After the emergency revisions were declared invalid, DFG was not forced to choose between corridors along the Kenai and Kasilof rivers or the much larger Area 1 encompassing most of Upper Cook Inlet.

Fish fights and legal battles over salmon are nothing new in Cook Inlet. The latest started over two words, and not the kind that might be exchanged between a drifter and a dipnetter.

The placement of the words "or both" in regulations issued April 21 by DFG had the effect of undoing restrictions on the commercial drift fleet approved by the board in March.

That led the Board of Fisheries to call a meeting June 30 to respond to an emergency petition filed June 13 by Kenai River Sportfishing Association and the Mat-Su Blue Ribbon Sportsmen's Committee. At the meeting, the board declared an emergency by a 4-3 vote and adopted corrected regulations that reinstated the drift fleet restrictions.

According to DFG regulations, an emergency is "an unforeseen, unexpected event" that threatens a fish resource. The board found the regulatory errors to be such an event, and that the effect would threaten the several Northern District salmon listed as stocks of concern.

United Cook Inlet Drift Association, Copper River Seafoods and several fishermen filed a motion July 8 seeking an injunction against the revised regulations and arguing that the situation did not qualify as an emergency under statute.

Superior Court Judge Andrew Guidi agreed with UCIDA and Copper River Seafoods that the board's finding of an emergency was improper because errors in regulatory language are not "unforeseen or unexpected" and such emergency findings are intended to be "rare."

Guidi declared the revised regulations invalid, restored the rules codified April 21 and granted the request for a restraining order and injunction.

What happened

As proposed in March, during one of the two weekly openers between July 15 and July 31, the drift fleet would have been, "restricted to either or both the expanded Kenai and expanded Kasilof sections of the Upper Subdistrict or Drift Gillnet Area 1."

As codified April 21, the regulations written by DFG stated the fleet would be restricted to, "either the expanded Kenai and expanded Kasilof sections of the Upper Subdistrict or Drift Area 1, or both."

Rather than "or both" applying to the expanded Kenai and Kasilof sections individually, "or both" now applied to the expanded sections as a single unit and Area 1. This meant both the expanded corridors and Area 1 could be fished during the Monday and Thursday periods, the opposite of board intent that both areas would be available only once per week.

Area 1 encompasses more than half of Upper Cook Inlet, stretching from just south of the Kasilof River to Anchor Point. Sport fishing groups have argued - and a majority of the board agreed in March - that pulling the drift fleet out of Area 1 during one of the two periods per week would allow more salmon to reach the Northern District.

The board also agreed with the sportfishing groups that the regulations issued April 21 erroneously included the use of the expanded corridors during the second of two drift openers July 14.

The revised language approved June 30 would have restricted the drift fleet to the original, narrower corridors. The expanded Kenai River corridor extends farther into Area 2 (the northern section of the Central District), which was closed to drift fishing by the board in March to protect the stocks of concern.

The trade-off for this loss of Area 1 and Area 2 was to be the larger areas around the Kenai and Kasilof that could be fished six days a week if needed between July 15 and July 31.

What's next

The first projected run call by DFG for the Kenai River was scheduled to be announced July 22. If the run is projected to be greater than 4.6 million, all regulations governing commercial fishing periods no longer apply and DFG may allow as much effort as it deems necessary to harvest the run and prevent over-escapement.

Escapement goals are designed to allow enough fish to reach the spawning grounds to provide for a sustained yield while not allowing too many and reducing the survival rate. For the Kenai, the escapement goal is between 700,000 and 1.4 million sockeye.

With the way the run has been materializing, the sport and personal use fisheries are likely to be liberalized once the goal of 700,000 is projected to be met. That will allow increased bag limits for anglers from three to six per day and opening the personal use dipnet fishery to 24 hours per day.

The primary goal of the Cook Inlet fishery management plan is to reach the escapement goal for the Kenai, and the run size combined with the judge's ruling is creating a "perfect storm" with potentially negative effects according to Kenai River Sportfishing Association Executive Director Ricky Gease.

Intensified effort in the Central District will lead to more interception of Northern District bound salmon stocks, and at a run greater than 4.6 million a setnet closure for Tuesdays will be opened and lead to more commercial catch of Kenai and Kasilof king salmon.

In March, sport fishing interests successfully persuaded a majority of the board that over-escapement concerns should be balanced against goals for allowing more Northern District stocks to pass through the Inlet and getting more king and silver salmon into the rivers for anglers. The Tuesday setnet closure was approved at the March meeting for that reason.

Gease, while disappointed in the Superior Court ruling, said his group feels its arguments against emphasizing escapement goals are "vindicated" by the large return of sockeye to the Kenai in 2011.

Escapement for the Kenai from 2004 to 2006 far exceeded the upper limit all three years with 1.67 million, 1.64 million and 1.87 million, respectively, reaching the spawning grounds. Stock from those brood years are now returning en masse to the Inlet after some predictions that over-escapement would kill the salmon runs.

Revisiting regulations

The state did not immediately appeal the injunction, but is likely to contest the ruling to protect the ability of the board to take emergency action. Whether such an appeal is successful, the board is going to have to take another shot at revising the regulations in October.

Emergency regulations are in effect for 120 days, so even if an appeal was successful the board would need another action to fix the regulations for the 2012 season. The board was taking written comment on the emergency revisions for its workgroup meeting in Anchorage in October, and it's unclear at this point whether those comments can be considered now that the emergency regulations have been declared invalid.

If the Superior Court ruling is upheld by the Alaska Supreme Court on appeal, the board will need to add an agenda item to one of its upcoming meetings to resolve the issue, with public notice and opportunity to take comment. Either the board will generate a motion to take it up or a member of the public may petition to add it to a future agenda.

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.

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