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Thread: Experimental gear in a limited entry fishery

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    Default Experimental gear in a limited entry fishery

    Not trying to rehash some discussions but I found out some new information that I thought I would share. This comes from the local Commercial Fisheries biologist who got it from the Directors and CFEC.

    So the Commissioner gives a permit for fishing a new gear type as a test in a limited entry fishery. It works so then a proposal goes to the BOF. They must decide how the gear fishes and how it interacts with the existing limited entry fishery. But here is the qualifier. According to CFEC it is an open entry fishery meaning if the BOF creates it anyone can participate. The limited entry permit holders still have their limited entry card for say drifting or set nets but they do not just get to apply limited entry to the new gear. So all Alaskans can participate and must be treated equal under the law. Thus in these situations the BOF has been very reluctant to do this.
    Anyway, I thought this was interesting enough to post. Again this came from local staff who have been getting all types of questions from commercial fisherman.

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    Okay, I'll byte.

    The answer may lie in what is meant by "It works....." (second paragraph, second sentence). Does the new gear resolve a long standing management issue? Does it resolve old conflicts between competing users? Does it create a new fishery where none existed before? What does the new gear actually do? That would begin to address the question of where and how the new gear would be deployed. That might then narrow the scope of who might actually be interested in using the gear. But if lots of folks want to use it, I say lettum. The restrictions should be on the catch and the date/time/location of where the gear can be deployed, not necessarily on who can deploy it.

    I recognize that any new fishery will likely result in unintended consequences, such as too many folks in too small an area. The BoF does not want to create a monster it can't control (The PU dipnet fishery comes to mind). But, as we've discussed on this BB many times before, the solution is a restrictive bag limit. But any new gear/fishery ought to be structured with multiple layers of regulatory restrictions, as difficult as that might be to swallow.

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    Cohoangler, I think you missed my point so maybe I was not clear enough. Work was just used to say that it caught fish and was deployed in a manner that met some objective (reducing chinook harvest for example). But my main point was that some people think that a new gear can just replace an existing limited entry gear and the limited entry program applies. That is not correct. So if gear A is used in place of limited entry gear B then it is open to anyone who wants to do it. No limited entry. Very interesting legal question if that was to happen.

    Just trying to point out some of the issues when a Director just gives someone a permit to try something without everyone knowing how it will be implemented. People are spending money thinking they can replace their set nets with some new gear and be limited to just set net permit holders. That does not appear to be the case according to ADF&G local staff.

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    Thanks for the clarification. Got it. However, in doing so, the answer is also clear.

    You're saying "limited entry" is based on gear type (nothing new there). So, if someone deploys different gear (with ADF&G approval), limited entry does not apply to that gear, even if that same someone has a limited entry permit for a different gear type. So, in effect, entry for the new gear type is unlimited (i.e., any Alaska resident). Therefore BoF is reluctant to approve the new gear type, given the potential for wide spread use they can't control. Can't blame them. But, again, any new fishery or gear type approved should also be accompanied by sufficient, enforceable regulatory controls, particularly if limited entry can't be one of them.

    But nothing is ever that simple, even in Alaska.

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    Quote Originally Posted by Cohoangler View Post
    Thanks for the clarification. Got it. However, in doing so, the answer is also clear.

    You're saying "limited entry" is based on gear type (nothing new there). So, if someone deploys different gear (with ADF&G approval), limited entry does not apply to that gear, even if that same someone has a limited entry permit for a different gear type. So, in effect, entry for the new gear type is unlimited (i.e., any Alaska resident). Therefore BoF is reluctant to approve the new gear type, given the potential for wide spread use they can't control. Can't blame them. But, again, any new fishery or gear type approved should also be accompanied by sufficient, enforceable regulatory controls, particularly if limited entry can't be one of them.

    But nothing is ever that simple, even in Alaska.
    This is what makes things complicated in Alaska. The BOF cannot create a limited entry fishery. The CFEC does that after study and setting criteria for an application for a permit.

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    Quote Originally Posted by Nerka View Post
    This is what makes things complicated in Alaska. The BOF cannot create a limited entry fishery. The CFEC does that after study and setting criteria for an application for a permit.
    Making change slower and harder to implement. Arguably a good thing - especially in fisheries which have proven sustainable for many decades.

    People have the very same frustration with government - that it reacts too slowly, but in fact our government is designed that way. Checks, balances and multiple branches of government help prevent rapid sweeping change by one party, interest group, or passing fad. Judicial legislation, initiatives, & executive actions may have their place, and have arguably made positive changes in the past, but they can lead to some pretty scary changes quickly which have unexpected consequences.

    Interesting that there is AK legislation on the table to eliminate the CFEC and give those powers to ADFG and the BOF. Bad idea I think.

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    I would think an open fishery and new gear doesn't mean much unless you have access. They could make the new fishery available to anyone, but criteria would be a shore site, and/or a limited entry permit. In other words, kind of piggy-back it.

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    Quote Originally Posted by Funstastic View Post
    I would think an open fishery and new gear doesn't mean much unless you have access. They could make the new fishery available to anyone, but criteria would be a shore site, and/or a limited entry permit. In other words, kind of piggy-back it.
    The beaches are open to the public. A shore fishery lease would prohibit access in some areas but a number of shore fishery leases are just for commercial fishing at the net site. So the area between 600 foot separation would be open. Anyway, it is an interesting twist to the whole discussion.

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    Ok, I get the feeling Nerka may be baiting me... I told you that I would give you the last word on this... Take a read through Title 16 of the Alaska Statutes. It's pretty clear that the commish can grant a permit and the CFEC has to approve it for an experimental fishery. Playing "what if" doesn't change the authority given to the commish by the legislature. CFEC must play nice and give the permit. This doesn't create an open fishery, because the only participants must have a commish permit. No commish permit, no fishy. Local staff should assume the commish has the largest law firm in the state reviewing these requests..

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    As for the BOF, all they have to do is to create a reserve on the Eastside of Cook Inlet and allow set gillnet permit holders to utilize seine gear in that area in an effort to protect chinook. This action appears to be within the BOF authority as long as there is not a specific allocation to that gear type/area as the BOF attempted in Grunnert v. State. Not saying it is right or wrong, just what appears to be within the board's authority. No CFEC issues. It wouldn't be much different than an area registration. For example, if chinook numbers are below X, the chinook reserve regulations would kick in and holders of set gillnet permits who wish to fish the East side would be required to use the requisite seine gear and release chinook. I'm sure that any such action would be a minimum of two board cycles out, maybe three, so there would be plenty of time to gather data and have public input.

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    Quote Originally Posted by Seinerman View Post
    As for the BOF, all they have to do is to create a reserve on the Eastside of Cook Inlet and allow set gillnet permit holders to utilize seine gear in that area in an effort to protect chinook. This action appears to be within the BOF authority as long as there is not a specific allocation to that gear type/area as the BOF attempted in Grunnert v. State. Not saying it is right or wrong, just what appears to be within the board's authority. No CFEC issues. It wouldn't be much different than an area registration. For example, if chinook numbers are below X, the chinook reserve regulations would kick in and holders of set gillnet permits who wish to fish the East side would be required to use the requisite seine gear and release chinook. I'm sure that any such action would be a minimum of two board cycles out, maybe three, so there would be plenty of time to gather data and have public input.
    This is the exact question I asked staff and they said no. The fishery cannot be created by exclusive us of the Commissioner permit as it is experimental. Once it goes to a fully operating fishery it is open to all participants not just set net holders. They may be wrong Seinerman but that is what they are telling the public right now. It very much involves CFEC if it is to become a limited entry fishery.

    Not trying to bait you at all. Just thought it was an interesting position being told to the public and points out that there are obvious questions to be asked and answered.

    I did not think this thread would go very far as I posted for information purposes not debate.

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    I didn't mean the baiting comment in a negative way, I figured that you knew I couldn't resist.. The local staff should go up the chain of command and find out what information they should be giving out to the public and what information is better left to the Dept. of Law or the Commish. It is an interesting question, but the issue here is not creating a new limited entry system, it is a modification of an existing gear type in a specific area in order to optimize sockeye harvest while minimizing chinook harvests.

    You are correct in that any modification of the ESSN fishery cannot be done by a Commish permit alone. It would require BOF action as well as CFEC involvement, but the fishery can be modified without making it an open entry fishery if necessary for conservation and management purposes while optimizing the benefit to the state.

    There is a big gap between the experimental permit and "a fully operating fishery" and staff should recognize that there will be a lot of public input and regulatory action needed to fill that gap. Making assumptions about open access and then disseminating misinformation to the public will do nothing but raise unnecessary objections and cause anxiety needlessly. It may well be that there are too many problems associated with alternate gear types to even get to the proposal stage. On the other hand, it might be one way to preserve jobs and a way of life on the Eastside beach.

    In my opinion, it is irresponsible of local staff to make statements about a Commish permit and potential consequences, intended or unintended.

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    I have to question if this would actually be a "new gear type". I realize the location would be new, but seining salmon in Cook Inlet is not a new fishery, and there are a limited number of permits already fishing. Even if they modified the nets, used different techniques, etc. seining for salmon is seining for salmon. So perhaps this could all be solved by modifying (increasing) the number of CI seine permits available, to include these set netters, or a new seining area could be added to existing ones, and seiners could register what area they fish, like they do in Bristol Bay. Just thinking out-loud.

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    My sense is that Nerka's scenario was somewhat hypothetical. He was highlighting the regulatory and practical difficulties of bringing new gear types into any fishery. Although there may be some applicability to Cook Inlet fisheries, my guess is that he didn't want to apply his hypothetical example to what is already a regulatory quagmire, as we have discussed at length on this BB.

    But I should let Nerka speak for Nerka........

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    Quote Originally Posted by Cohoangler View Post
    My sense is that Nerka's scenario was somewhat hypothetical. He was highlighting the regulatory and practical difficulties of bringing new gear types into any fishery. Although there may be some applicability to Cook Inlet fisheries, my guess is that he didn't want to apply his hypothetical example to what is already a regulatory quagmire, as we have discussed at length on this BB.

    But I should let Nerka speak for Nerka........
    Correct. To follow this up I received an email saying the BOF changed gear types in a limited entry fishery in the Yukon drainage. They went to dip nets when chinook abundance was low. So I called ADF&G and got a somewhat different answer than my first post, which was a written response. So the answer I got this time was 1) send an email requesting a written response to the Commissioner or Dept of Law - which was kind of funny since they want me to do it rather than the Regional staff do it - but I digress. 2) the BOF can create any fishery they want and make it open entry regardless of whether there is a limited entry fishery and 3 ) they can change gear types like they did on the Yukon in a limited entry fishery. So they added the last section when I pressed about the Yukon example. However, then the comment was made that these rulings have never been tested in court and they were not sure how CFEC would respond. So more confusion.

    I think this just points out my concern over getting straight information to the public. Seinerman - I agree with you the Department should have a single answer to this and a well written rationale why they can go forward or not in these limited entry fisheries. Saying I need to write an email when the public is asking (and not just me) seems really strange since the local staff, via the Area Management concept, is suppose to answer these questions or find out. It is not a tough question but the Regional staff said they wanted me to write the email request. I know that makes it a log item requiring an answer but seems like this is what the Department should be doing.

    I must say in my experience the Department and BOF has a long history of losing more court decisions than winning them on this type of action. I watched the Board do various actions which the court said was not correct. In recent history no one is challenging the State because of the cost and risk of paying fees if they lose.

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    Your explanation suggests an answer.....

    The question you ask seems to have legal implications. If ADF&G were to provide an answer, without input from their legal folks, they may not be on solid legal grounds. Which is okay since they get to make the initial decision (the courts bat last....). However, they appear to be gun-shy since they have lost court cases in the past, perhaps on this specific issue.

    So, if they get a question in writing, they can determine whether they want to answer it (yes/no) and if they think it's worth answering, they can provide something to their legal folks to read. But the legal folks may not want to provide an answer for the same reason - legal risks. But if it's an important enough question, the legal folks ought not be answering it anyway. The policy folks must provide the answer. But they won't unless they have to. And they won't have to unless enough people ask. Or perhaps the right people ask. And that ain't you and me.

    If I sound like a government bureaucrat, there's a reason......

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    Seems like an awful lot of drama for a mere experiment.

    Not trying to discount the need for things to be done in a responsible and lawful way, but JC it's hard to fart in UCI without someone getting worked up and threatening to sue.

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    Quote Originally Posted by smithtb View Post
    Seems like an awful lot of drama for a mere experiment.

    Not trying to discount the need for things to be done in a responsible and lawful way, but JC it's hard to fart in UCI without someone getting worked up and threatening to sue.
    Please be respectful smithtb. It is not a mere experiment in UCI. The UCI alternate gear are called an experiments but they really do not really meet any experimental standards that I can see. Also, it may come up to the Board of Fisheries sooner than later. An emergency petition and bang you have it. Maybe if the ESSN fisherman had challenged ADF&G on letting someone fish a 29 inch mesh net and calling it an experiment you would not have that in regulation today?? When something potentially impacts thousands of people then it is not drama --it is asking tough questions of those who propose the idea and the agencies responsible for managing the resources. That is being responsible.

    Relative to a threatened lawsuit it is the only recourse you have if the State is doing something illegal. Otherwise they just continue doing it. Been there and watched that play out. There use to be a time when the public said is this legal? Today it is " Who can I get on the BOF to further my cause - illegal or not"

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    Quote Originally Posted by Nerka View Post
    Please be respectful smithtb. It is not a mere experiment in UCI. The UCI alternate gear are called an experiments but they really do not really meet any experimental standards that I can see. Also, it may come up to the Board of Fisheries sooner than later. An emergency petition and bang you have it. Maybe if the ESSN fisherman had challenged ADF&G on letting someone fish a 29 inch mesh net and calling it an experiment you would not have that in regulation today?? When something potentially impacts thousands of people then it is not drama --it is asking tough questions of those who propose the idea and the agencies responsible for managing the resources. That is being responsible.

    Relative to a threatened lawsuit it is the only recourse you have if the State is doing something illegal. Otherwise they just continue doing it. Been there and watched that play out. There use to be a time when the public said is this legal? Today it is " Who can I get on the BOF to further my cause - illegal or not"
    Nerka, I was not speaking specifically to you, and was not trying to be disrespectful. What I said, while sarcastic, is essentially true. Everything in UCI is a big deal. It gets old.

    No, one setnetter's permitted "experiment" is not the reason that we now have 29" mesh in regulation - in fact I don't recall any experiment or special permit with regards to 29" mesh. That was mostly KRSA/Kintama and a couple setnetters who thought they could get ahead by making deals with them only to find out they got screwed. Ironic that some of those very same fishermen are now the most insulted that someone else wants to (quietly) try something new. Also ironic that the department has urged setnetters to come up with new ideas for years, and now that a new experiment is in the design stages, some within ADFG are already throwing up roadblocks. I guess the one thing that hasn't changed is that ESSN's are danged if they do or don't in nearly every regard.

    Personally, I'd like to see my friends try this expirement. Planning on checking it out. I predict major disaster when the weather tales a turn. Disasters are entertaining

    Looking at my catch over the last several years, I don't see a real need for change. When there aren't kings present, I don't catch many. If they are doing so poorly that any harvest is unacceptable, then I probably shouldn't be fishing with any gear as interacting with them is unavoidable, and the consequences of that interaction are unknown. For the guys north of the line, I don't blame them for trying something-anything (other than screwing me or dealing with KRSA) - which might net them a few more days of fishing.

    That said, I am not afraid of change and welcome some experiments in times like these. As long as we are realistic. If this experiment works out, it might be a suitable alternative down the road for the NEXT cycle of low King abundance, not this one.

    I agree with you though - I think the desire for rapid change and disregard for legality that accompanies it is dangerous and not in the best interests of most people or our resource. Hope that makes sense.

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    Perfect sense smithtb.

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