Judge rules for ADFG in lawsuit over 2013 Cook Inlet salmon management

  • By Molly Dischner
  • Thursday, June 5, 2014 8:36pm
  • News

ANCHORAGE — A state judge ruled in favor of the Alaska Department of Fish and Game in the lawsuit regarding the 2013 Cook Inlet salmon fisheries.

The Cook Inlet Fisherman’s Fund, or CIFF, sued the Alaska Department of Fish and Game in July 2013, asserting that fisheries managers did not follow Cook Inlet salmon management plans appropriately that year and caused harm to commercial fishermen.

After hearing oral argument May 29, Judge Andrew Guidi granted the state’s motion for summary judgment June 2. He wrote in his final decision that there was no evidence that ADFG had “exceeded its authority in executing the emergency plan promulgated by the Alaska Board of Fisheries. Specifically, the Fund has failed to articulate any concrete way in which the Department overstepped its management authority other than the claim — already rejected on motion for preliminary injunction — that the Fund’s fishermen were entitled to 51 hours of extra fishing time by law.”

ADFG asked for summary judgment in December, which was the focus of oral argument May 29.

The state asked the judge to uphold Fish and Game’s interpretation of the management plans in its motion for summary judgment; CIFF opposed that.

CIFF President John McCombs said the ruling came as a disappointment.

“I just don’t think the Department of Fish and Game did their job when it came to managing the fishery,” he said.

McCombs said he would have to talk to the CIFF board about the group’s next steps.

CIFF could file a motion for reconsideration, but the grounds for doing so are limited.

The fisherman’s fund had asked the judge to at least allow the process to continue to discovery before making a decision.

Last summer, CIFF asked for a preliminary injunction requiring Fish and Game to follow certain aspects of the Cook Inlet salmon management plans, and both sides argued the case in Anchorage Superior Court.

Guidi ruled that the injunction was not necessary, in part because a remedy was available if he later determined that managers had erred, and in part because he would simply be substituting the court’s judgment for managers if he ruled in favor of changing their practices. Guidi referenced that decision in his order supporting ADFG’s motion for summary judgment.

ADFG is responsible for day-to-day management of Cook Inlet salmon fisheries, while the board approves the overarching management plans and makes allocative decisions for the fishery.

In recent years, the department has been tasked with conserving Kenai River king salmon, which have had particularly low returns, while allowing opportunities to harvest Kenai River sockeyes, which are plentiful.

CIFF had said that the eastside setnet fleet was harmed when ADFG limited fishing time to conserve king salmon. The setnetters primarily target sockeyes, but also catch kings.

CIFF, along with the United Cook Inlet Drift Association, has also challenged the federal decision that formally removed Cook Inlet from the federal salmon fishery management plan, eliminating the potential for federal oversight. That lawsuit is currently working its way through federal district court in Anchorage; oral argument was heard May 26, and a decision is pending.

Guidi’s June 2 decision indicated that he thought there was enough information to make a decision. At the end of the May 29 hearing, he said that the two sides had a pretty good go at each other in court last summer when he considered the injunction. The May hearing was largely focused on whether or not there were remaining issues of fact to be considered.

Alaska Assistant Attorney General Mike Mitchell said that it was up to CIFF to prove that the state erred in its management last summer, and had not done so.

“The evidence shows that the department did not throw the plans out the window,” Mitchell said during oral argument.

Mitchell said that during testimony last summer, there was no discussion of missing facts, or the need for more information about the management that was occurring.

Bruce Weyhrauch, who represented CIFF, reiterated that organization’s position that ADFG strayed from the management plans and made allocative decisions without the authority to do so, calling the 2013 decisions “willful mismanagement.”

Weyhrauch has asked that CIFF be able to go through discovery and get further information about how 2013 management decisions were made before the judge decides whether or not ADFG was in the right.

Guidi asked why CIFF thought there was enough evidence last summer, but no longer did, and Weyhrauch responded that the injunction had a different standard than summary judgment.

The two sides also discussed this winter’s Board of Fisheries Upper Cook Inlet meeting, which occurred during two weeks in January and February.

Mitchell said that CIFF had not gone to the board with its complaints over how ADFG managed in 2013, although the board would be the correct way to address the issue, he said. He also noted that the board made significant changes to the management plans this year.

McCombs, however, did submit numerous proposals to the Board of Fisheries seeking management plan changes, and the CIFF members who attended the hearing all attended the BOF meeting as well, citing 2013 management in their public testimony and discussions with board members.

Weyhrauch said that ADFG’s comment in its reply brief that the board would have dismissed it if CIFF had raised the issue at the meeting did not paint a picture of the board that was open to the public or impartial.

 

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

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