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Fishermen, state argue their cases in lawsuit

Judge to rule Thursday

Posted: July 31, 2013 - 10:15pm  |  Updated: August 1, 2013 - 8:24am

Did the Alaska Department of Fish and Game exceed the scope of its authority while trying to balance competing fishery needs in Cook Inlet this summer?

That’s the question Judge Andrew Guidi said he is trying to answer as he makes a decision on a preliminary injunction regarding salmon management in Cook Inlet.

Guidi said that was the broad question after hearing closing arguments Wednesday in the lawsuit brought forward by the Cook Inlet Fishermen’s Fund, or CIFF.

This summer, Kenai River king salmon runs have been poor, while Kasilof River sockeye have been strong. That meant managers had to try to conserve kings while harvesting sockeyes. In both cases, ADFG is trying to ensure that the final escapement is within a goal range.

CIFF has asked for a preliminary injunction requiring the Alaska Department of Fish and Game to follow certain aspects of the management plans approved by the Board of Fisheries.

Guidi is expected to make a decision by this morning.

During the evidentiary hearing Tuesday, and closing arguments Wednesday, as well as in written documents from both sides, Guidi has heard many details of fisheries management and operations in Cook Inlet from both sides.

The new Kenai King Conservation Alliance also participated in the case as an intervener on the state’s behalf, adding to Fish and Game’s closing arguments.

Initially, CIFF wanted certain additional fishing time, which is allowed in the management plan during strong sockeye runs, for setnetters. Now, because East Side setnetters are shut down entirely for king conservation, as are sport fishermen, the group just wants stricter adherence to the management plans.

In Cook Inlet, Fish and Game is tasked with managing several fisheries and runs, and complying with sometimes conflicting management plans.

That can lead to difficult management decisions, all parties have acknowledged.

But while Fish and Game maintains that it has done its best to follow management plans and meet the escapement goals for several salmon stocks, CIFF says that East Side setnetters were harmed by the management decisions.

For instance, CIFF has said that use of the Kasilof River Special Harvest Area was out of line, because the management plan calls for using it after the certain extra hours have been used, and closed hours reduced.

Fishermen don’t prefer the area and setnetters generally can’t move their gear to even utilize it, witness and CIFF president Doug Blossom told the court.

But Fish and Game said that the area is a necessary tool to try and harvest sockeyes, while avoiding Kenai kings. Generally, Kenai kings are not caught in the harvest area at as high of rates as they are in other parts of Cook Inlet.

CIFF has also portrayed Fish and Game’s effort to meet the Kenai River late-run king salmon escapement goal as management at the expense of the Kasilof River sockeyes, which exceeded their escapement goal range.

Escapements outside of their ranges, whether high or low, have a lower probability of producing maximum yields in the future, Fish and Game’s Robert Clark confirmed while on the witness stand during evidentiary hearing.

However, a return below the escapement range, such as the Kenai king return is currently poised to come in at, can make it more difficult to return to optimal returns, Clark said.

“The risks are different,” he explained.

The two sides also disagree about how strictly the Board of Fisheries has intended for Fish and Game to follow its plans.

CIFF lawyers said that the Board of Fisheries considered some of the actions taken this summer in proposed changes to the management plan at the March 2013 meeting, and rejected them, meaning Fish and Game should not use those techniques.

During the evidentiary hearing Tuesday, Lance Nelson, senior assistant attorney general representing the state, said that the board didn’t mean to tie the department’s hands. Instead, the board acknowledged that Fish and Game had those options, and didn’t prescribe a certain path for it to take.

The word may, for instance, was meant to indicate that Fish and Game could take an action — not that it had to, Nelson said.

In his closing argument, CIFF lawyer Matt Mead outlined six points that illustrated the fishermen’s belief that Fish and Game caused irreparable harm by going outside the management plan.

Guidi was largely silent during the questioning of witnesses Tuesday, but during the Wednesday closing arguments, he interjected with questions of his own on several occasions.

At the conclusion of that session, he outlined the broad question he was trying to answer.

He noted that the constitution has to be at the heart of salmon management.

“The overall context of the case is that we’re dealing with a public resource,” he said. And, he said, he didn’t envy the decisions Fish and Game has to make in balancing different users and different salmon runs.

“There are tradeoffs,” Guidi said.

 

Molly Dischner can be reached at molly.dischner@alaskajournal.com.

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