The Alaska Fisheries Conservation Alliance will appeal the state’s decision to reject its proposed ballot initiative that would ban setnetters in Cook Inlet.

In November, AFCA submitted signatures asking for voters to consider banning setnetting in the urban, nonsubsistence, areas of the state — such as the Anchorage area, much of the Kenai Peninsula, Valdez and Juneau. 

It would eliminate Cook Inlet setnetters and not have an immediate affect on anyone else, although fishermen in other communities would lose the right to setnet if Alaska’s Board of Fisheries and Board of Game removed a region’s rural, subsistence, designation in the future.

Lt. Gov. Mead Treadwell announced Jan. 6 that the proposed ban on setnetting did not meet legal standards to appear on a ballot.

Treadwell used an Alaska Department of Law opinion, that the initiative was a prohibited appropriation of state assets, in striking it down.

AFCA announced the decision to appeal Jan. 22 during a press conference in Anchorage, and maintained that the initiative was about conservation, not appropriation.

AFCA Executive Director Clark Penney said the appeal had been filed that morning in Alaska Superior Court.

AFCA will seek expedited consideration so that a decision is made in the next few months, said Matt Singer, legal counsel for the group.

Either party could choose to appeal the Superior Court’s decision to the Alaska Supreme Court, Singer said, so it is likely the decision will be made by that body. AFCA was targeting the August 2016 primary ballot for the initiative; that could still happen if the decision is overturned, and enough signatures are gathered.

Singer said the legal opinion on which the state’s decision was based was incorrect, and could set a dangerous legal precedent.

“They’re wrong on the law,” Singer said.

Instead, Singer said that voters have a constitutional right to go to the ballot box, with very few limits on what they can do, although appropriations are one of the prohibited initiatives.

Eliminating setnetters in Cook Inlet would likely result in increased catch for in-river sport fishermen, personal use fishermen, and for the fleet of drift boats targeting sockeye.

That state’s legal opinion was based largely on a 1996 Alaska Supreme Court decision in Pullen v. 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. After it was initially certified, the state Supreme Court ruled that was an unconstitutional appropriation, and the initiative was not allowed on the ballot.

But Singer said that AFCA initiative did not address that appropriation issue. It eliminated a gear type, and left it to the Board of Fisheries to determine what happens to the resulting abundance.

AFCA board member Bill MacKay said he got involved in the effort because he believed the group was focused on conservation.

“We expect to win this case,” MacKay said.

That’s not how the state has characterized it.

“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, in the Attorney General and Department of Law opinion on the case.

When asked why the group would advocate for shutting down both sport and commercial catches of kings, if the goal was king salmon conservation, AFCA President Joe Connors said sport fishermen don’t oppose restrictions, and have accepted them in recent years.

However, “a lot” of king salmon are caught by the setnet fleet, he said.

“I think the numbers (of fish caught by each group) were significantly different,” he said.

According to the Alaska Department of Fish and Game, in 2013 an estimated 2,256 late-run Kenai River king salmon were harvested in the Upper Subdistrict setnet fishery. In-river harvest and mortality, according to ADFG, was 1,620 late-run kings in 2013.

AFCA founder Bob Penney said that the state more closely regulates sport fishermen.

“They know what’s taking place in the river,” Penney said.

Later, Penney and Connors also responded to a question about other protections, such as preventing fishing on spawning grounds.

Connors said the Board of Fisheries has taken “drastic” action to reduce sport catches in the last 20 years.

Members, however, would not specifically say whether the Board of Fisheries has been deficient in limiting setnetters or protecting kings, instead they referred to the idea that voters have the right to weigh in on conservation needs regardless of what the board does.

Cook Inlet setnetters participated in the press conference or teleconference, and asked why the organization was trying to take away their jobs and livelihood.

MacKay said the loss of jobs was a legitimate concern, and one of the reasons residents of the state would have a long time to discuss the initiative before voting on it if it were cleared for the 2016 ballot.

When asked about mitigating the impacts to fishermen, AFCA members said they thought that was something for the state to discuss.

MacKay said it wasn’t appropriate for AFCA to weigh-in on whether or not conversion to a cleaner gear type, such as fish traps, would work.

Penney also said that he supported commercial fishing around the state, and recognized its importance in providing jobs and food for Alaskans, however, he referenced setnets as having the “highest bycatch” of any fishing in state waters, making it a gear type that was not appropriate when king salmon were dwindling in numbers.

Bycatch, however, is not the correct term. Setnetters target sockeye salmon, but have a legal right to retain and sell all five species of Pacific salmon, including king salmon.

And, while setnetters catch more kings than the drift boats fishing in Cook Inlet, they do not have the highest catch of kings in the state.

Earlier in January, Alaska’s Board of Fisheries approved a new regulation for seiners in Kodiak’s Alitak District that requires them to toss kings larger than 28 inches back when they are caught incidentally before July 6. That came after the seiners in the area caught 29,921 kings in 2013 while mostly targeting sockeyes and pinks.

Other fisheries groups have opposed the initiative, including the Alaska Salmon Alliance, Kenai Area Fisherman’s Coalition, the United Cook Inlet Drift Association, the Kenai Peninsula Fishermen’s Association, and the United Fishermen of Alaska. The City of Kenai and the Kenai Peninsula Borough Assembly also officially opposed the initiative.

Alaska Salmon Alliance’s Executive Director Arni Thomson said he was disappointed in the decision to appeal.

“We agree with the attorney general’s well reasoned legal advice not to certify the Set Netter Ban because it is unconstitutional, and it’s shameful to see a special interest group now force innocent Alaskans to fight for their jobs in court. If passed, the Set Netter Ban will instantly destroy the jobs of more than 500 Alaskan families,” Thomson wrote in a statement provided after the appeal was announced.

Dwight Kramer, from the Kenai Area Fishermen’s Coalition, agreed.

“KAFC is very disappointed that AFCA has taken this course of action,” Kramer wrote in an email. “This initiative process crosses a line in our community when you are proposing to end the livelihoods of some of our neighbors and friends. It also makes it much more difficult to foster the level of cooperation and respect that is necessary to bring the various user groups together to resolve our fishery issues. Law suit or no law suit, this is still all about greed for an allocation advantage and a transfer of wealth for one commercial entity (guided sport) at the expense of another.”

In Treadwell’s announcement about the decision not to certify the initiative, he suggested that all the users work together on solutions to the declining king numbers, and use the Board of Fisheries process.

Shortly after the Jan. 22 press conference, most user groups attended a Cook Inlet Fisheries panel luncheon at the Kenai Visitor Center.

The Alaska Salmon Alliance, Kenai Area Fishermen’s Coalition, Kenai River Sportfishing Association, Kenai Peninsula Fisherman’s Association, City of Kenai and Kenai River Professional Guide Association were all represented.

AFCA was invited to participate, but chose not to attend.

“We were all here,” Connors said, of the group at the Anchorage press conference.

Connors said there was no specific reason for the conflicting timing, and that AFCA’s filing and announcement had been delayed already.

Molly Dischner is a reporter for the Alaska Journal of Commerce. She can be reached at molly.dischner@alaskajournal.com.