ANCHORAGE — A federal judge heard oral argument yesterday in the lawsuit regarding whether or not Cook Inlet should be in a federal salmon management plan.
Alaska has managed its own salmon since statehood, and neither party is questioning that. But the United Cook Inlet Drift Association and Cook Inlet Fishermen’s Fund, who brought the lawsuit forward in February 2013, want federal oversight of salmon management — and believes that is what congress has intended in its regulations of fish in federal waters.
The National Marine Fisheries Service, however, specifically excluded Cook Inlet salmon from the federal fishery management plan, or FMP, via Amendment 12.
In December 2011, the North Pacific Fishery Management Council unanimously voted to officially have Alaska Department of Fish and Game manage Cook Inlet, Prince William Sound and Alaska Peninsula salmon fisheries, and note that in the federal fishery management plan, or FMP.
The council manages most fisheries in federal waters, or from three to 200 miles from shore, largely under the authority of the Magnuson-Stevens Act.
The salmon FMP for federal waters offshore from Alaska was then revised to reflect that change in jurisdiction. The FMP is required by the Magnuson-Stevens Act.
The final rule implementing that change was published in the federal register in December 2012, effective Jan. 22.
That’s the decision the Cook Inlet commercial fishing organizations are challenging.
The federal defendants have said they have the authority to make the change.
During oral argument in U.S. District Court in Anchorage, Judge Timothy Burgess asked both sides to answer several questions about deference to federal management in certain situations, whether the Magnuson-Stevens Act precludes referring management to the state, and past situations where fish in federal waters have been managed exclusively by the state.
Coby Howell, who represented the federal defendants, said the Cook Inlet tanner crab fishery is also managed solely by the state, after having been removed from the federal crab FMP. Other crab fisheries are managed jointly, and in the FMP.
The parties also discussed the 2012 salmon fishery disaster in Cook Inlet.
The plaintiffs contend that because disaster was not properly accounted for in the final rule that removed Cook Inlet from the federal management plan.
“These are the kinds of problems that we need the council and the National Marine Fisheries Service to be weighing in on,” said Jason Morgan, counsel for UCIDA and CIFF.
But Howell said the timing of the disaster was such that the decision was made beforehand, and it was not up for a change after the disaster occurred. Furthermore, he noted that the fishery disaster was an economic one — and the plantiffs likely benefitted, because setnetters were shut down, affording the drift fleet additional harvest opportunity.
The State of Alaska is also participating in the suit as an intervenor on the side of the federal defendants, and state Department of Lawyer attorney Lance Nelson said that another issue raised in the lawsuit, the potential for harvest in a certain area where the Cook Inlet groups say a loophole allows vessels to fish unregulated, has not yet occurred and likely will not.
Nelson also said that the state has the resources to manage the fishery, while the federal government does not.
Morgan also noted that the fishing groups are not looking for day-to-day federal management, just oversight.
Burgess said at the end of the hearing that he’ll issue a written decision in the case.
Molly Dischner can be reached at molly.dischner@alaskajournal.com.
