State Supreme Court hears setnet ban arguments

  • Wednesday, August 26, 2015 10:41pm
  • News

In a matter of months, the Alaska Supreme Court will decide if Alaskans can legally ban an entire group of fishermen by ballot initiative. At the heart of the court’s decision is a definition: what makes an allocation?

On Wednesday, the Alaska Supreme Court presided over an unusually packed house to hear arguments from the Alaska Fisheries Conservation Alliance and the State of Alaska on whether to allow a ballot initiative to ban setnets in urban areas to be allowed in the 2016 election cycle. The court has no deadline for a decision.

Lt. Gov. Byron Mallott certified the ballot initiative after the Alaska Fisheries Conservation Alliance submitted 43,000 signatures in support of the measure. The initiative would almost exclusively impact the Kenai Peninsula, where 735 setnet permits are registered alongside a large guided angler industry. More than 80 percent of the permits are held by Alaska residents.

After the initiative was filed in late 2013, then-Lt. Gov. Mead Treadwell rejected it in January 2014 as an allocative measure, which is prohibited by the Alaska Constitution.

AFCA appealed and won a reversal in Superior Court that allowed it to begin collecting signatures.

The State of Alaska is appealing the lower court decision, calling the initiative an unconstitutional de facto reallocation of salmon from one user group of fishermen to another, if not an explicit one, while AFCA argues the constitutional definition of allocation should be applied literally according to a particular legal precedent.

In Pullen v. Ulmer, the Alaska Supreme Court ruled in 1996 that salmon are a state asset and cannot be allocated by ballot initiative, which is prohibited under the state constitution.

The initiative strikes the state and setnetters as purely allocative in nature. Banning setnets would allow more chinook salmon, prized sport fish, into the Kenai River, which could then be harvested by other groups including the guided anglers and sportfishermen. The sockeye salmon targeted by the setnetters would also end up harvested by the drift fleet.

Allocations of salmon are the exclusive domain of the Alaska Board of Fisheries and the Legislature, under the Alaska Constitution. The State of Alaska said that the banning of an entire gear class is too broad not to be a hindrance to the resource’s management.

“The state uses the setnet fishery as one of its management tools,” said Assistant Attorney General Joanne Grace. “Eliminating the setnet fishery directly interferes with the Board of Fisheries’ allocation among user groups. To the extent there is a public trust, the initiative can upset that as well.”

William Falsey, an attorney representing Resources for All Alaskans, which filed an amicus brief agreeing with the State of Alaska, called the ban “arbitrary and irrational.”

Justice Daniel Winfree asked Falsey whether or not an argument could be made that the increased pressure on the Kenai River creates a special circumstance for creating harvest method ballot.

“I question whether gear types matter is even relevant in this case,” said Falsey.

AFCA argues that the initiative isn’t allocative, as it only limits an “outdated and indiscriminate” method and means of fishing, and doesn’t assign the leftovers to any other group.

AFCA attorney Matt Singer of the Anchorage firm Holland and Knight argued the ballot initiative is constitutionally sound, as it makes no specific allocation to one group from another.

The initiative struck down in Pullen v. Ullmer clearly demanded a reservation of five percent of salmon for personal and sportfishing users. Singer argued the AFCA ballot makes no such exact distribution of resource, and therefore doesn’t meet the Pullen criteria for an allocation.

Sportfishermen would have access to the greater amounts of king salmon in the Kenai River as a result, but that doesn’t necessarily make it an allocation.

“Most initiatives appeal to the self-interest of some voters,” said Singer. “The mere appeal of the initiative is not the concern. The concern is does the initiative effect a giveaway? This one does not. It’s apples and oranges to compare this initiative to the one in Pullen.”

Winfree, however, seemed uncomfortable with the precedent of outlawing an entire gear type.

“Under the way you’ve interpreted the test,” said Winfree, “couldn’t you ban fish wheels, dipnets, all other gear types but fishing poles and say it’s not an allocation?”

Singer answered that the line would have to be drawn somewhere, and that the argument shouldn’t be taken to the extreme.

Justices also seemed reluctant to toss aside a substantial user base of the permitting system under the Commercial Fisheries Entry Commission, which establishes limited entry into Alaska fisheries. With lines already drawn for escapement goals and numbers of licenses, the remaining fish from a setnet ban would have to spill over somewhere.

“It took over 30 years to adjudicate all those fisheries,” said Justice Peter Maassen. “How can you argue that the elimination of one of those designated fisheries is not an allocation?”

Singer responded by saying limiting one particular method and means of resource harvest is not an allocation.

“Is that really true from a practical matter, though?” asked Maassen.

Singer argued Alaskans have a history of limiting the methods and means of natural resource harvest, including outlawing aerial wolf hunting and bear baiting. Not to uphold the Superior Court’s ruling, he said, would be a step away from Alaska’s history.

History, said Winfree, “might change the spirit of the discussion, but it doesn’t change the legal analysis.”

“This is about how we structure democracy,” said Singer. “Our constitution gives the voters the constitutional right to submit legislation for consideration. My client has the right to submit the question for voter consideration. Unless an initiative is clearly over the line, it should be up to the voters to decide.”

Singer argued the court’s only decision should be whether or not the setnet ban amounts to an allocative decision.

“It’s not up to this court to decide if this is good policy or bad policy,” said Singer. “We’re here only to decide if it meets the subject requirements for the Alaska Constitution.”

The State of Alaska, however, argued that removing resources from one user group is a violation of constitutional intent to keep resource management in the hands of the legislators who oversee it.

“The courts have decided that even if an initiative draws resources away from one group, it is an allocation,” said Grace. “It’s not true that it’s a democratic right to vote on means and methods. That’s never been true. The court’s analysis should be on whether the initiative would affect legislators’ ability to manage resources.”

DJ Summers can be reached at

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