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State says proposed setnet initiative won't be on ballot

Ruling finds proposal to be allocative

Posted: January 6, 2014 - 10:21pm  |  Updated: January 7, 2014 - 11:40am
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Setnetters in the Kasilof Section of the East Side Setnet Fishery push a boat into shore June 27, 2013. On Monday, Lt. Gov. Mead Treadwell rejected a proposed initiative that would have banned the use of setnets in Cook Inlet.  Photo by Rashah McChesney/Peninsula Clarion
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. On Monday, Lt. Gov. Mead Treadwell rejected a proposed initiative that would have banned the use of setnets in Cook Inlet.

An initiative proposing a ban on setnets in certain parts of the state was rejected Monday as a “prohibited appropriation” under the advice of Alaska’s Department of Law.

Lt. Gov. Mead Treadwell announced Monday afternoon that the proposed initiative would not appear on the ballot.

The Department of Law issued a 12-page opinion Jan. 3 that determined that having voters consider the ban would be an appropriation, which cannot be addressed in a ballot initiative.

That was based largely on a 1996 Alaska Supreme Court decision in Pullen vs. Ulmer that maintained that salmon are assets that cannot be appropriated by initiative, and that preferential treatment of certain fisheries may constitute a prohibited appropriation.

In the Pullen case, a ballot initiative would have allocated a preferential portion of salmon to subsistence, personal use and sport fisheries, and limited them to about 5 percent of the projected statewide harvest. The state’s supreme court ruled that was an unconstitutional appropriation, and the question was not allowed on the ballot.

A ban would largely have affected Cook Inlet setnetters, although the text of the ordinance sought to prohibit setnetting across the state in areas that do not have rural designations — in addition to the Upper Cook Inlet that would include Valdez and Juneau, where no setnetting occurs. Setnetting would have remained in other communities, including Kodiak, unless the rural designation was removed.

The Cook Inlet-specific nature of the case helped make it a allocative issue, according to the legal opinion.

“Prohibiting shore gill nets and set nets in nonsubsistence areas effectuates an actual, measureable allocation of Chinook salmon from the East Side Set Net commercial salmon fishery in Cook Inlet to the Kenai River in-river sport fishery and to the Kenai and Kasilof personal use fisheries,” wrote Assistant Attorney General Elizabeth Bakalar on behalf of Attorney General Michael Geraghty.

The Alaska Fisheries Conservation Alliance proposed the initiative in November, and was targeting the August 2016 ballot.

The conservation alliance was founded by those with financial and recreational interests in sportfishing, including Bob Penney, who has previously stated his desire to reverse the current allocations between commercial and sport fishing in Cook Inlet. Penney is the founder of the Kenai River Sportfishing Association. His grandson, Clark Penney, serves as AFCA’s executive director.

“This decision is puzzling,” wrote Clark Penney in the group’s response. “I want to thank the Lt. Governor, the Alaska Division of Elections and the Alaska Department of Law for doing their due diligence, however I struggle to see the logic or the legality of this decision.”

The organization has 30 days to ask for judicial review, according to the state.

In a Monday statement, AFCA indicated that it would was reviewing the state’s legal opinion, and would consider a legal challenge to the state’s decision.

“One of the ideas being discussed is a legal challenge, another is a modified initiative,” wrote AFCA founder Joe Connors in an emailed response to questions. “Be sure of one thing, this is not over, that is for sure.”

The Alaska Salmon Alliance quickly praised the decision.

“We are elated by Lieutenant Governor Treadwell’s decision to not certify this job-killing measure,” said Arni Thomson, executive director of the Alaska Salmon Alliance. “Though it was highly unlikely to ever pass, the Set Netter Ban would have instantly destroyed the jobs of more than 500 Alaska families who set net to make a living. We are happy to see it dead on arrival.”

The salmon alliance, the United Cook Inlet Drift Association, the Kenai Peninsula Fishermen’s Association,

Kenai Area Fisherman’s Coalition, the city of Kenai and the Kenai Peninsula Borough Assembly had all officially opposed the initiative.

The fishing groups had characterized it as allocative, which the State agreed with.

The DOL opinion states: “Were this type of initiative permissible, voters could continue to reallocate stocks to any fishery simply by eliminating specific gear or particular means and methods of catching fish — for example, the next initiative might propose to eliminate purse seining, trawling, dipnetting, or catch-and-release sport fishing in particular areas to increase harvest opportunity for other types of users. This would ‘prevent ... real regulation and careful administration’ of Alaska’s salmon stocks, contrary to the purpose of the prohibition on initiative by appropriation.”

In a statement responding to the decision, AFCA’s Board Chair Bill McKay disagreed with the legal interpretation of the initiative.

“I am extremely disappointed in this decision,” McKay wrote. “This initiative is clearly statewide and seeks no authority to regulate or allocate fisheries management in our state. We should be out gathering signatures today, not looking at lawsuits.”

The end of the initiative, however, doesn’t mean the issue is resolved.

“On this initiative we received input from the sponsor, supporters, and opponents, all of which we shared with the attorney general’s office,” Treadwell wrote in the state’s press release about the decision. “We have urged the parties to work together with the Board of Fish to address concerns about setnets and fisheries allocations.”

In addition to a legal challenge or altered initiative, AFCA could take the matter to the Legislature or Board of Fisheries.

“Going forward, we will evaluate all options for halting the indiscriminate bycatch of Alaska king salmon,” Connors wrote in response to a question about whether or not the organization will lobby the Legislature for consideration of similar legislation.

The group will also discuss taking the matter to the fish board, Connors wrote.


Molly Dischner can be reached at

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Avik66 01/07/14 - 09:06 am
A Greedy Joe Connors

Connors just doesn't get it. He's still trying to make a case that set netters catching King salmon is a "bycatch". Nothing could be further from the truth as the department of law noted. A commercial permit holder is allowed via their permit to catch "salmon" inculding King salmon. Show me any evidence you have that the ESSN is anymore responsible for the downturn in King numbers than the in-river sport fishery.

Connors is a lodge owner and guide service and he is only trying to line his own pockets by a re-allocation of the King salmon resources. It's greed greed greed. He should be ran out of town as he, Penney and KRSA are embarassments to sport fisherman everywhere.

pengy 01/07/14 - 11:14 am
If money is to be made there

If money is to be made there will be greed. That goes for all user groups.

cormit 01/07/14 - 12:18 pm

Definitely not a good day for Connors/Penny AFCA. This "all or nothing" group may have exhausted whatever political clout they thought they had, and the way forward may now be a little tougher for them. Here's some things that may have gone wrong.

The effort to establish set net caught kings as by-catch probably isn't working all that well. For set-netters .... kings are part of the catch .... not by-catch.

With the in-river king salmon harvest approximately the same as the entire east side set-net harvest, the same number of kings could just as easily be saved by eliminating kenai river guides.

The effort to call east side set-netters indiscriminate king killers is also not working out so well. The fact remains that the "indiscriminate" taking of kings by set-netters is spread across all age and size classes, where the in-river harvest targets the "once abundant" but "now mostly disappearing" largest of the species.

This "all or nothing" group convinced the legislature to reject the confirmation of Board of Fish member Vince Webster ..... for reasons that ended up not existing. This made the legislature look bad, and didn't exactly please the governor either.

Filing the petition for the initiative to ban set-netting ... with the BOF proceedings only a few weeks away may backfire as well. This maneuver implied a lack of confidence in the BOF process and is insulting to those sitting board members committed to finding balanced solutions to salmon allocation.

This group will now show up at the BOF hearings and expect all those disrespected parties to treat them as though they are fair and reasonable participants in the process. Good luck with that one. Your list of friends is much shorter now. I guess you reap what you sow.

KenaiKardinal88 01/09/14 - 03:29 pm
Commie Fishers Win - Average Alaskan Loses

95% of greedy commercial fishers give the other 5% a bad name.

Salmon is NOT a shared resource. The commies own the political process and bully everyone else.

Only when the commies destroy the resource completely will they stop. Read Cod Wars, this has happened before.

Raoulduke 01/10/14 - 05:55 am

KK-88 Would you explain your term "Commie Fisher". You have used the term on numerous occasion's. I would like to know your meaning of the term.Then maybe I would be able to follow your comments with better understanding.

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