A quiet Friday on the dipnet beaches of the Kenai River/Craig Medred photo

KENAI – Friday found the beaches at the mouth of Alaska’s most fought-over river woefully short of dipnetters willing to help stop the possible “over-escapement” of sockeye salmon so feared by the commercial fishermen of Cook Inlet.

Meanwhile, the commercial fishermen themselves, or at least their official representatives, were meeting with a state court judge to demand a reversal of an Alaska Department of Fish and Game’s decision to close setnet fisheries to protect a struggling run of Chinook salmon.

Carl Bauman, the attorney representing them, wanted a temporary restraining order (TRO) imposed on Commissioner of Fish and Game Doug Vincent Lang because he has, according to Bauman’s court filings, “violated so many points of applicable federal and state laws (constitutional, statutory, regulatory, and case law)” that there is a need for “TRO and injunctive
relief to the Court to stop the continuing harm.”

Bauman’s went on to list all the bad things Vincent-Lang has done, the most interesting of them being the suggestion that Vincent-Lang and the state Board of Fisheries have violated the interstate commerce clause of the U.S. Constitution by allowing the dipnet fishery to help provide food security for ordinary Alaskans.

“Does the Board have the authority to establish a new and expanding fishery for Alaska-resident-only, personal-use (dipnetting) that is at odds with Alaska Statute 16.43, CFEC, which has decimated the interstate commerce and the commercial fishery that CFEC was established to protect,” Bauman’s TRO filing asked.

All this acronym-laced gobbledegook will here need some unpacking for the average reader.

The CFEC is the Alaska Commercial Fisheries Entry Commission created by the Legislature in 1973 to impose limits on the number of permits to be issued for commercial fishing in various Alaska fisheries.

Permits were subsequently awarded to then-fishermen based on their length of experience. The permits became the property of the fishermen, and they were allowed to buy and sell them at will.

Since then, there has been a lot of buying and selling, and few of the permits today are owned by the fishermen originally given them.

Much of the intent behind this permitting idea was to protect parts of rural Alaska where commercial fishing provided the only real economic opportunity, but that didn’t work out so well.

Most of the driftnet permits for sockeye salmon fishing in Bristol Bay, by far the largest and most valuable salmon fishery in the state, are now owned by people who live elsewhere.

Five years ago, University of Alaska researchers concluded that what limited entry actually did was reduce “permit holdings by rural residents local to their fisheries…by 30 percent.

“(And) some regions like Bristol Bay have lost over 50 percent of their local rural permits.”

Some of the permits left the Bay when people who had been living there decided to move to urban Alaska, where life is easier than in rural Alaska. But many permits were also sold to fishermen from Outside.

Cook Inlet permits, being far less valuable than those in Bristol Bay have, however, stayed predominately local if the residency claims of the permit owners can be believed.

One of the highest profile of Cook Inlet fishermen –  Roland Maw, the one-time director of the United Cook Inlet Drifters Association (UCIDA), the most powerful lobby in the Inlet’s realm of fishery politics – turned out to be faking his Alaska residency, a fact that wasn’t discovered until then Gov. Bill Walker, a good friend of UCIDA, appointed Maw to the Board of Fish where Maw was going to fix they fishery problems in Cook Inlet, which can be defined in one two words:

Fish wars.

Whose salmon?

The complex problem driving the constant battles over Inlet salmon is in its simplicity that the rivers and streams draining into the Inlet don’t produce enough Chinook, sockeye and coho salmon to meet the combined demands of commercial, sport, personal-use and subsistence fishermen.

Upwards of 70 percent of those fish are now caught annually by fewer than 1,000 – sometimes far less than 1,000 – of the 1,300 people who annually fish their permits, according to a CFEC study.  

But even if they were allowed to catch all of the Inlet’s Chinook, sockeye and coho there wouldn’t be enough for them, which takes all this back to the history of the Inlet before the creation of the CFEC.

The commercial fishery of the Inlet was then open to anyone who wanted to obtain a state permit to go commercial fishing. The Legislature’s first efforts to change that ran head-on into a conflict with the Alaska state Constitution.

The authors of that document were clear about who should own the resource of the state, and it wasn’t any single user group.

“Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use,” they wrote in Article 8.

Article 8 for years prevented the Alaska Legislature, where commercial fishing interests have long punched way above their size, from creating a limited entry system.

But in 1972, Alaska voters approved an amendment to the Constitution that said this:

“No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State. This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the state.”

When Bauman now cites the Commerce Clause of the U.S. Constitution, he is basically arguing that this amendment changed everything and that the prevention of “economic distress among fishermen” should afterward have take precedence over all else when managing Inlet slamon.

Whether that is what Alaska voters were thinking when they approved an amendment the first line of which says “no exclusive right or special privilege of fishery shall be created or authorized” is impossible to know.

From Bauman’s perspective, however, it all seems clear.

The state has overlooked the promise of economic security written into limited entry and “the CIFF (Cook Inlet Fishermen’s Fund) members have…been financially harmed by intentional, arbitrary, capricious, and negligent actions under AS 09.45.250 by the Commissioner, the ADF&G, and the Board, including continuing the illegal Alaska-resident-only UCI PU (Upper Cook Inlet, peronal-use) salmon fishery, continuing to unfairly and unlawfully allocate UCI salmon to the personal, sport, and sport-guided fishing interests to the detriment of commercial fishermen, and continuing to impose arbitrary, capricious, unlawful, and unjustified gear, set back, and other restrictions on set net fishermen as well as arbitrary restrictions on the drift net fishermen.”

Unfortunately, he overlooks the reality that even if commercial fishermen got all the Chinook, sockeye and coho, that wouldn’t prevent “economic distress” because the CFEC didn’t do its job very well back in 1973.

The newly formed agency bowed to political pressure from the region and issued about 10 percent of all salmon fishing permits to fishermen in Cook Inlet, which now annually produces only 2 percent of the state salmon harvest, and most of that made up of pink salmon from Lower Cook Inlet in demand by no one other than the commercial purse seiners who profit off the low-value fish.

The 10-year-average harvest of higher valley Chinook, sockeye and coho in the Upper Cook Inlet is 3.2 million salmon worth $5.2 million, according to the Alaska Department of Fish and Game. That amounts to about $2,462 per permit holder. 

If the personal-use dipnet fishery and the sport harvest in the Kenai River were eliminated and the fish came back in average numbers, the commercial catch could likely be boosted to 4.2 million salmon worth $6.8 million based on 2020 prices. This amounts to $5,230 per permit holder.

And if the personal-us dipnet fishery and the sport harvest were eliminated and escapements – the number of salmon getting past commercial fishermen and into the rivers and streams to spawn – were reduced to what commercial fishermen think the appropriate number, one might be able to add another half-million fish to this number.

So let’ssay Fish and Game could get the commercial catch up to 5 million per year on average, a better than 50 percent increase over the 10-year average. One would then be looking at a value of about $8.1 million based on 2020 salmon prices.

That’s a big number, but divided between 1,300 permit holders, it works out to a little $6,231 per fishermen.

Anyone trying to live the year on that income is going to be in for a great deal of “economic distress.”

Inherent conflict

Salmon management, versus salmon harvest, fortunately isn’t about economic distress and shouldn’t be.

Salmon management is about conservation to ensure there are salmon around forever and, in Alaska’s case, to meet another state Constitutional mandate.

This one says “the legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the state, including land and waters, for the maximum benefit of the people.”

The conservation responsibility was given to Fish and Game managers, and it is the reason the commercial setnet fishery has been closed. The minimum goal for Chinook spawners in the Kenai River hasn’t been met for three years running; the return is lagging again this year; and managers have decided they can’t have Chinook, the big “kings” as Alaskans call, them getting killed in setnets whether the number dead is 100 or 1,000.

The setnetters claim the former number for big kings. The real number is unknown. There is no monitoring of setnet harvests, and it would be easy for setnetters to toss a dead king salmon back into the Inlet rather than report it as harvested.

To the setnetters, of course, the “maximum benefit” to the state is to allow them to catch more sockeye and forget about those Chinook.

As Bauman sees it in his court filings, “the entire season catch of large Kenai kings by those setnetters is less than 100, which is hardly noteworthy given the inaccurate ADF&G sonar program.”

Meanwhile, the bigger issue of “maximum benefit of the people” has never been seriously discussed by Alaska fishery regulators and is, in the 49th state, limited almost solely to discussions of the regulation of the oil industry, wherein there have regular battles over taxes, which fund a lot of public-sector jobs but can discourage private investment in oil development leading to a decrease in private-sector jobs.

Some have over the years suggested a similar, economic’s based management policy for salmon management that would determine where salmon provide the greatest value – be that in commercial, sport or personal-use fisheries – but the idea has gone nowhere.

Neither the Alaska Legislature; the Board of Fisheries, to which the Legislature delegated fishery management oversight; nor the Department of Fish and Game, to which the Board delegates much authority, has shown any real interest in trying to determine how to set salmon harvest for the “maximum benefit of the people”

And all the interest groups have differing views on who to define “maximum benefit.”

To the commercial fishermen, the maximum benefit is in the commercial harvest, though few Alaskans are commercial fishermen and most of the jobs provided by the fishery got to temporary workers who come for the summer and quickly leave.

To those who fish for sport, the maximum benefit is in the cultural experience and the tourism business, the latter having been shown to produce far more valuable per pound from a salmon than commercial fishing given that tourists are willing to pay ridiculous amounts of money on flights, food and lodging to come catch a few salmon in Alaska.

And to personal-use dipnetters and subsistence fishermen (the former having been subsistence fishermen before the state made them personal-use dipnetters to get rid of the harvest “priority” subsistence users enjoy over everyone else), the maximum benefit is in food security.

State fishery managers have, to their credit, largely ignored most of this fighting over “fair shares” for decades and, at the end of the day, stuck to the view that conservation comes first, and that has spawned the big problem staring setnetters in the face for decades.

Bycatch, bycatch, bycatch

They would be fishing today if they could catch sockeye without catching kings, but they can’t.

They might be fishing today if they’d at least made a good faith effort to show that they could catch sockeye while only rarely killing a king, but they haven’t done that either.

This is the bycatch problem. And for years, setnetters insisted it didn’t even exist.

Here was one of their journalistic mouthpieces writing in the Alaska Journal of Commerce only nine years ago:

“Legal, historic harvest is not bycatch….bycatch like the trawl PSC (prohibited species catch) is not to be caught or sold. This is obviously not the case for setnetters, who have caught and sold kings for a century from the beaches of Cook Inlet.”

There was at one time good money in selling those fish. In the good old days of Cook Inlet Chinook, the Kenai produced returns that peaked at just shy of 100,000 kings in 2005, according to Fish and Game records.

Commercial fishermen that year caught, killed and sold almost 28,000 of the big, late-run Kenai kings, according to Fish and Game records. That is a harvest more than twice the size of the total return of kings last year or the year before that or the year before that.

When kings were booming like this, commercial fishermen had a good case for ignoring their bycatch problem and arguing they were entitled to a share of the harvest. The case became weaker and weaker as Chinook numbers declined, but commercial fishermen continued to argue they were entitled to their king salmon bycatch.

This is the reason the Board of Fisheries never simply made it illegal for them to sell kings as federal officials did in the trawl fisheries. Some setnetters did years ago see the bigger bycatch problem on the horizon.

But when a few of them suggested some ideas for how to minimize setnet bycatch of Chinook, they were ostracized, and when the state ordered setnetters to use shallower nets that kings could swim under while sockeye in the upper water column continued to be caught, setnetters objected to that, too.

Bauman now goes to great lengths to argue that the net depth “restriction is arbitrary and punitive in nature against the ESSN (East Side Set Net) set gillnet fishermen. No other commercial fishery in Alaska is subjected to such a restriction.”

All of this, he argues, happened only because the Kenai River Sportfishing Association funded a study that produced “a flawed report by…Canadians” indicating that shallower nets might well decrease Chinook bycatch by allowing kings to slip under the “curtains of death” sport-fishing interests have accused setnetters of hanging in the Inlet. 

Instead of embracing shallower nets as a possible solution, or coming up with a better idea to offer as an alternative, setnetters fought it and arrived at the point where they are today:

On the beach, prevented from fishing because of bycatch, and once again in court spending more money on lawyers than they are making in the fishery.

They did, however, win a public relations battle this week when they managed to get Alaska public media to gaslight the Kenai River sport fishery, which was closed to fishing for kings back on July 17.

“Due to restrictions linked to the sport fishery, the east-side set-net fishery in Cook Inlet closes when king salmon abundance on the Kenai River is low,” public station KDLL reported from Kenai.

The closure is not due to restrictions linked to the sport fishery. It is due to a lack of king salmon, which have failed to meet their minimum spawning goal for three years running and are in danger of not meeting the goal again this year.

The latest projection from the Alaska Department of Fish and Game is that with both the sport and commercial fisheries for kings shut down the number of spawners will be “approximately 14,239 large fish.”

The minimum goal is 15,000. It was not met last year when only 11,832 kings were counted passing the sonar counter on the river. 

Or the year before that when the count was even smaller at 11,499, or the year before that, when the count was 11,868.

And 2019, the last year when the minimum goal was met, wasn’t exactly anything to write home about. The count that year was 1`6,957 – well above the minimum goal but still little more than half of the upper goal of 30,000. 

Here it must be noted that there are no indications the setnetters are responsible for this decline. Chinook are generally struggling from Kodiak Island east and south all the way to Oregon.

Those Canadian researchers have documented a 65 percent, coastwide decline in Chinook productivity in recent decades from the northern tip of the Alaska Panhandle south to Oregon.

Returns north of the Panhandle look to be struggling just as much, but the Canadians said they lacked enough data to make a definitive, scientific conclusion in areas further north.

The consensus of fisheries scientists is that poor ocean survival is at the heart of the problem, but what is driving that is undecided.

An over-abundance of pink salmon, which compete with Chinook for food, has been implicated as one possibility. Predation by marine mammals or sharks has been suggested as another.

University of Alaska Fairbanks researchers have reported salmon sharks appear to be taking a big bite out of Chinook grazing on Bering Sea pastures.

Most of the kings there are believed to be from the Yukon and Kuskokwim rivers of Alaska and from Russia, but some Chinook from points far to the south do range into the Bering Sea.

Coded, wire-tagged Chinook from the Columbia River of Washington and Oregon, the Snake River of Wyoming and Idaho, and the Upper Willamette River of Oregon have shown up regularly in trawl bycatch in the Bering Sea, according to researchers with the National Oceanic and Atmospheric Administration (NOAA).

Some have tried the blame the coastwide decline in Chinook on trawl bycatch in the Bering Sea and the Gulf of Alaska, but the evidence to support that idea is weak.

Last year, NOAA reported a total bycatch of 32,480 Chinook in the Bering Sea and Gulf of Alaska trawl fisheries. Given that these Chinook come from dozens and dozens of rivers and tend to young fish that might not survive to spawn, federal scientists concluded the impact on any one river is tiny.

When residents of Western Alaska panicky about crashing Chinook populations in that part of the state in January petitioned NOAA to eliminate king salmon bycatch and cap chum salmon bycatch in the pollock trawl fishery, they were turned down.

“The best available scientific information indicates that those failures have resulted from broad changes to the marine and freshwater environment,” an agency statement said. “Chinook salmon bycatch in the Bering Sea pollock fishery comprises less than 3 percent and chum salmon bycatch comprises less than 1 percent of the returns to Western Alaska river systems.”

The pollock trawl fishery was reported to have caught 13,783 Chinook in 2021 while hauling in about 3.5 billion pounds of pollock. At an average weight of about 1.5 pounds this amounts to about 2.3 billion pollock, putting the ratio of kings to pollock at one of the former for every 9,188 of the former.

According to Fish and Game data, the east-side setnet fishery this year caught 135,842 sockeye and 306 Chinook before it was shut down for a ratio of 444 sockeye per king.

The data would, at this time, appear to indicate the fishery has a bycatch problem more 20 times the size of the one in the Bering Sea. And the setnetters want to continue to ignore it.

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