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Judge rejects request to override ADFG management

Posted: August 6, 2013 - 7:39pm  |  Updated: August 7, 2013 - 7:51am
Photo by Rashah McChesney/Peninsula Clarion   Setnetters in the Kasilof Section of the East Side Setnet Fishery push a boat into shore June 27, 2013.  A judge recently denied a motion of a preliminary injunction in a lawsuit over Cook Inlet commercial salmon management that would have required the Alaska Department of Fish and Game to change it's management.
Photo by Rashah McChesney/Peninsula Clarion Setnetters in the Kasilof Section of the East Side Setnet Fishery push a boat into shore June 27, 2013. A judge recently denied a motion of a preliminary injunction in a lawsuit over Cook Inlet commercial salmon management that would have required the Alaska Department of Fish and Game to change it's management.

An Anchorage judge denied a motion for preliminary injunction in the lawsuit over Cook Inlet salmon management Aug. 1.

Judge Andrew Guidi ruled Aug. 1 that the Alaska Department of Fish and Game is not required to change its management, for now.

The Cook Inlet Fisherman’s Fund, or CIFF, filed a complaint against Fish and Game, asserting that managers have not followed management plans appropriately this summer, and asked for a preliminary injunction requiring them to follow certain aspects of the plan.

The Kenai King Conservation Alliance also participated in the lawsuit, as an intervenor on behalf of ADFG.

CIFF’s primary contention is the fishing time setnetters have received.

In his ruling, Guidi wrote that the motion did not meet the criteria for a preliminary injunction, and that CIFF had not proven that it would suffer irreparable harms if Fish and Game, or ADFG, was allowed to continue its current practices.

“The Fish and Game actions the Fund complains of do not appear to be inconsistent with Board of Fisheries regulations or (statutory) authority, or otherwise unlawful,” Guidi wrote in his order.

Now, the future of the case is uncertain.

Leslie Need, a lawyer for CIFF, said Aug. 1 that the lawyers would talk to CIFF and decide how to proceed.

CIFF had already filed an amended complaint regarding the fisheries management issues, and could chose to purse that following the regular court process, which includes the pretrial process, and potentially a trial and resolution.

The pretrial process would likely include an opportunity for ADFG to respond to the amended complaint, discovery and other components.

CIFF President Doug Blossom, who testified as a witness during a July 31 evidentiary hearing, said he wanted to pursue the lawsuit.

“I think it went quite well,” Blossom said. “The judge said for us to carry on and go after them.”

Despite not receiving the preliminary injunction, Adolf Zeman, another lawyer for CIFF, said it was a difficult case and he respected the judge’s opinion.

To issue a preliminary injunction, the judge would have had to substitute his own judgment for ADFG’s, Zeman said. The process had barely scratched the surface in terms of relevant information, and that would be difficult.

Additionally, injunctive relief requires a lot of scrutiny, Zeman said.

The standards for a preliminary injunction are especially high when the defendant, in this case ADFG and the resources it manages, could be harmed by the injunction.

Guidi noted that king salmon could be harmed if ADFG was required to change its management strategies.

And, Guidi wrote, setnetters’ economic losses could be mitigated at the end of the lawsuit, if they prevail in future litigation, meaning that the harm to them is not irreparable, which is one of the standards for a preliminary injunction.

The CIFF complaint revolves around fishing opportunity provided to setnetters, and ADFG’s actions to manage Cook Inlet fisheries for various escapement goals.

ADFG manages several sectors and gear types in the marine and freshwaters of Cook Inlet and the central Kenai Peninsula. Sport, personal use and educational fishery participants, as well as setnetters and the drift fleet, harvest primarily sockeye salmon, as well as king and coho salmon.

The Board of Fisheries has passed several management plans that address Kenai River late-run kings, Kasilof River sockeyes, and Kenai River sockeyes.

CIFF wanted the court to require ADFG to follow the plans, but the two sides disagree about how strictly the Board of Fisheries has intended for the plans to be followed, and ADFG managers said in testimony that they contain a clause that allows the department to go outside the plans if that is necessary to meet the escapement goals.

CIFF set forth that because the Board of Fisheries considered, but did not adopt, additional management measures at its March 2013 meeting, it didn’t want those tools used.

But ADFG managers said that when the board made that decision, it noted that ADFG already could use some of the tools being considered, and didn’t want to make management more restrictive than it already was.

In his order, Guidi said an injunction requiring compliance would have no effective purpose, and providing additional fishing time would be unreasonable given changes in the fishery since the lawsuit was filed.

When the lawsuit was filed in mid-July, setnetters targeting sockeyes were receiving their regularly scheduled fishing periods, and some additional fishing time but not the maximum allowed in management plans. By the time the evidentiary hearing occurred July 30, East Side setnetters were shut down until further notice to avoid catching any more king salmon.

That, CIFF has asserted, is a move that clearly puts preference on the Kenai River late-run king salmon escapement goal ahead of other escapement goals, such as Kasilof River sockeyes, which came in strong and have likely exceeded the goal.

ADFG biologists and managers said during the evidentiary hearing that while there is a risk of lower returns in future years when escapements come in outside of the goal, either above or below, runs that are below a goal are more problematic.

“The risks are different,” said ADFG’s Robert Clark.

During closing arguments July 31, KKAC lawyer Sherman Ernouf said his client wants to see more protections for Kenai kings, and supported ADFG’s precautionary management. In fact, KKAC would have liked to see closures sooner, Ernouf said.

“What is undeniable is that 3,000 fish have been killed in setnets,” Ernouf said.

The setnet fleet targets sockeyes, but catches kings in their nets as well.

As part of the king conservation efforts, sport fishermen were prohibited from catching kings, and participants in the personal use and educational fisheries were required to release any kings unharmed. The sport harvest of kings in 2013 is estimated at about 1,300 before the closure.

The drift fleet has been allowed to keep fishing, and setnetters at other Cook Inlet sites have also continued their regular fishing periods, but haven’t had as much extra time as they’d like.

Blossom said CIFF would like to see ADFG consider king releases for setnetters, too.

CIFF has argued that the setnetters it represents have a historical claim to fishing, and the way ADFG has approached the closures has exceeded its statutory authority to manage the fisheries and reallocated fishing opportunity to other users.

“There’s management plans for everything, and they didn’t follow any of them,” Blossom said.

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