As the deadline to certify an initiative to ban setnetting nears, fishing groups are filing legal opinions with the state opposing the measure.
The Kenai Area Fisherman’s Coalition and the Kenai Peninsula Fishermen’s Association have each sent a letter to the state offering a legal opinion on the ban. The Alaska Salmon Alliance also plans to weigh in.
The Kenai Area Fisherman’s Coalition, or KAFC, is a group representing private, unguided anglers. Kenai Peninsula Fishermen’s Association, or KPFA, largely represents Cook Inlet setnetters in addition to some drifters and seiners. The Alaska Salmon Alliance, or ASA, is a coalition of commercial fishermen and processors.
In November, the Alaska Fisheries Conservation Alliance, or AFCA, filed a petition to ask voters to consider banning setnets in certain “urban,” non-subsistence parts of the state. The initiative talks about urban areas statewide, but for now it would essentially ban setnetting in Cook Inlet.
Lt. Gov. Mead Treadwell is required to issue a decision on the initiative by Jan. 6.
KAFC’s Dwight Kramer sent a letter to Treadwell Dec. 7 on behalf of what he describes as a “Joe Fishermen” organization offering the opinion that the initiative is both misleading and inaccurate.
Kramer also wrote that the “initiative threatens our working relationships with commercial users necessary to navigate and compromise on resource allocations and sustainable fishery issues.”
Dec. 18, the KPFA board of directors jumped into the fray with its own letter to Treadwell pointing to certain legal issues with the initiative.
“While we realize that dishonesty and misinformation may not be enough to bar your legal approval of this petition, we insist that your office reject this petition based on its direct conflict with our state’s Constitution, Statutes, and prior legal precedence set by our courts,” the directors wrote.
KAFC is a Kenai-based nonprofit that weighs in on local fishery issues. The group is comprised of private sport fishermen, and has not taken the anti-commercial outlook represented by the AFCA, which is backed by Kenai River Sportfishing Association founder Bob Penney.
The KAFC letter to Treadwell counters many of the claims made by the Alaska Fisheries Conservation Alliance in the initiative.
The letter notes that six items in the initiative are factually incorrect, and asserts that two more are misleading.
Specifically, the letter points to several issues with how the initiative portrays setnetting, as well as concerns with the use of the initiative to make an allocative decision.
“We oppose this motion on both moral and legal grounds,” wrote Kramer. “This initiative, without sound justification, has further divided our community and threatens our areas economic diversity.”
Penney, a longtime advocate for sport fishing who helped found AFCA and has previously indicated that he would like to curtail commercial fishing in favor of recreational interests in Cook Inlet, referred questions about the KAFC letter to the group’s public relations firm, Northwest Strategies.
In a statement provided in response to questions about Kramer’s letter, AFCA President Joe Connors did not specifically answer a question about whether or not his group would provide its own legal opinion, but maintained that the group believes the initiative is proper.
“AFCA respects the Kenai Area Fisherman’s (Coalition’s) right to provide information to the Lt. Governor,” Connors wrote Dec. 17. “However, we are confident that our initiative application meets all the legal requirements necessary to have it placed on the ballot in 2016. We have the utmost confidence the Lt. Governor and the Division of Elections are doing their due diligence and will come to a fair and legal decision before the January 6, 2014 deadline.”
Both of the Kenai groups opposing the initiative have questioned the use of a ballot measure to make what they say is an allocative decision.
“Alaska’s fisheries resources are a state asset and therefore cannot be allocated by ballot initiative,” wrote KPFA, the commercial fishing group. “Alaska’s Constitution and State Statutes also prohibit ballot initiatives from enacting local or special legislation. The fact that this petition targets one specific geographic area of the state makes it undoubtedly local legislation.”
In the KAFC letter, Kramer suggested that the AFCA members have a financial interest in sportfishing on the Kenai, and are seeking an allocation, not conservation.
Previously, Connors has said he would be willing to accept in-river closures as well as the setnet ban to protect king salmon, but his group has not proposed any such measures.
Connors affirmed, however, that AFCA still believes the initiative is about conservation, not allocation.
“The initiative to ban set nets in urban or non-subsistence areas of Alaska is about conservation, period,” Connors wrote. “It places no limitation whatsoever on the discretion of the Alaska Legislature or the Alaska Board of Fisheries to allocate fish among competing users. Allocation continues to be the domain of those two governing bodies.”
He also cited a historical precedent for eliminating a gear type by vote.
“Historically, Alaska’s very first ballot initiative, on the same ballot as the statehood referendum, was an initiative on whether or not to ban an outdated and harmful method for taking fish — namely, fish traps,” Connors wrote. “This effort is but the latest in a long string of initiatives where Alaskans have exercised their rights to protect fish and wildlife by regulating improper methods and means for harvest.”
The opposition letters addressed that contention in the initiative.
Kramer wrote that it is factually incorrect to refer to setnetting as an “antiquated method of harvesting fish that indiscriminately kills or injures large numbers of non-targeted species,” noting that a commercial setnetting license is issued for all salmon species, not just one.
His letter also questions two sections that assert that the nets are unsustainable and have a high mortality, and asserts that removing the gear type will not enhance conservation efforts.
In its letter, KPFA agreed: “There is no evidence that Cook Inlet Setnets have contributed to current low abundance of King Salmon. In fact, this user group is an essential tool used by the Alaska Department of Fish and Game to maintain proper Salmon escapement goals in our streams and rivers — a principle element in sustained yield management of Alaska’s fisheries assets.”
With less than three weeks until Treadwell’s decision is due, the state is likely to receive additional opinions on the initiative.
Alaska Salmon Alliance Executive Director Arni Thomson said his organization would also provide the state with a review of the initiative.
“Alaska Salmon Alliance is very concerned about the legal issues involved,” Thomson said. “We are going to respond, and we are conducting a legal analysis.”
Thomson said his group applauded Kramer’s letter to the state.
Additional groups jumping into the fray on initiatives is not without precedent.
The state does not specifically track letters that offer a legal opinion on initiatives and referendums, unless a formal complaint is filed with the Alaska Public Offices Commission, or APOC.
The commission, however, does track groups that formally participate in an initiative campaign, either for or against.
APOC’s Tom Lucas said that in the case of the voter referendum on oil tax changes, four total groups have filed with the commission to participate: the original proponent, an additional supporter, and two groups that oppose it.
The conservation alliance that has proposed the ban also announced Dec. 18 that Clark Penney, grandson of founder Bob Penney, is its new executive director and former Alaska Airlines executive Bill MacKay was named to the board of directors.
Molly Dischner can be reached at firstname.lastname@example.org.