As this was brought up in another thread, I figured some might want to read the entire article. I'm just wondering why this was only in the Homer Newspaper? This could corrupt the entire BOF process, and put major decisions into limbo. Hey... and I thought the process was kind of convoluted before. Sheeesh!!
Anybody want to comment?
UCIDA wins major battle in Cook Inlet fish war
The United Cook Inlet Drift Association has won a significant concession from the Secretary of Commerce, who oversees the National Marine Fisheries Service, in an ongoing battle over management of the Upper Cook Inlet salmon fishery.
NMFS has signed a consent decree with UCIDA that allows UCIDA to file a petition with the federal government contesting management decisions by the state Board of Fisheries that are not in compliance with the Magnuson-Stevens Act without first going through the state courts.
Also, any decision made by the Board of Fisheries that UCIDA feels does not meet the standards outlined in the act must be reviewed by NMFS within 180 days of filing the petition with the Secretary of Commerce.
The Magnuson-Stevens Act is the principal law governing marine fisheries in the United States. It sets forth 10 national standards for fishery management, including managing for optimum sustained yield and using the best available science in management decisions. Management decisions also must take into account the importance of fishery resources to fishing communities to provide for the sustained participation of, and to minimize adverse impacts to, such communities.
UCIDA maintains that the Upper Cook Inlet salmon fishery, of which the Kenai River is the main engine, is capable of sustained commercial sockeye harvests of at least 4 to 6 million fish, if managed properly. There is plenty of evidence that over-escapement in the Kenai River, largely caused by Board of Fisheries management decisions trying to appease in-river user groups, has led to the depressed runs of the past five years.
The best five consecutive years of sockeye harvest in the upper inlet were from 1985 through 1989, with an average harvest of 6 million sockeye per year. The peak of that harvest was 9.5 million sockeye in 1987. The escapement goal for the Kenai River in the parent years for those runs was 350,000 to 500,000, with actual escapement averaging 500,400 fish.
During the past five years, the average sockeye harvest in the upper inlet has been 2.7 million fish, with Kenai River escapement during the parent years averaging 1.3 million sockeye.
The Kenai River escapement goal is currently set up on a three-tier system, the only river in the state with such a management strategy. Depending upon run size, the escapement goal is anywhere from 600,000 to 1.1 million sockeye.
The lawsuits that led to the current agreement carved out a process for getting issues through the red tape, according to Jim Butler, with Baldwin & Butler LLC, the law firm representing UCIDA. UCIDA first petitioned the Secretary of Commerce through federal court to review Upper Cook Inlet management.
That petition was denied on procedural, but not substantive grounds, because the court said UCIDA had not exhausted all its state remedies, something Butler said would have taken years and been futile to pursue.
The substantive part of the issue was whether the state must comply with the Magnuson-Stevens Act when managing stocks that are harvested partly in federal waters, outside of 3 miles, known as the Exclusive Economic Zone. The Upper Cook Inlet drift fleet fishes largely in the EEZ.
"The procedural issue, particularly this exhaustion, ran the risk of prolonging litigation on a procedural matter and never having an opportunity to get to the substantive matter, which is, what is the relationship between the state and Magnuson(-Stevens Act) when it comes to the EEZ?" Butler said.
UCIDA filed a second complaint. Various briefings took place, and the judge once again denied its motions. That meant UCIDA had an opportunity to appeal to the 9th Circuit Court.
"We thought we had legitimate (substantive) grounds," Butler said, "and as a result, we started to have a dialogue with NMFS about whether or not it's in the interest of all the parties to go to the 9th circuit or whether we can agree in some context about how we might be able move forward on resolving these issues."
That led to the consent decree, which lays out what the exhaustion process looks like. In this case, for the purposes of either another petition or a request for a NMFS review of Magnuson-Stevens Act compliance, exhaustion means that the party simply has to participate in the Board of Fisheries process, "and that would be sufficient for purposes of UCIDA bringing another petition," Butler explained.
The next step in the process is to see what happens at the Board of Fisheries meetings, which take place Feb. 20 through March 5 in Anchorage, and whether the board returns to science-based decisions.
"We have a new tool in the toolbox, and we now have national standards that are not as subject to the political influences that we're used to on the state level," Butler said.
Charges when the suits were filed that UCIDA wanted the federal government to take over management of the fishery, or that the suits were intended to shut down dipnetting, are unfounded, Butler said.
"(Feds taking over the fishery) is not what the lawsuit is about," he said. "But what it does mean is that there is another mechanism of review and there's another standard for how the fishery is supposed to be managed. That review is one that is based on managing for optimum sustained yield, and protecting commercial fishing communities. That's the basis of Magnuson-Stevens, and that's different than we have in the state of Alaska.
"There are too many unique aspects of how they manage the Kenai, that they're arguing that they can do what they want, but if it affects (optimum sustained yield) in the EEZ, they can't do it. That's our position. UCIDA believes that if they manage for OSY, then by definition you should have plenty of opportunity for people who are in-river or near-shore fishermen. As opposed to now, where we're managing for the bottom of the curve, instead of the top."
There was never any intent to target or get rid of a particular user group, Butler said.
"Everybody typically in the state conversation is 'well, how do I get allocated my number of fish?' and Magnuson provides for the opposite: 'How do we make sure we manage for optimum yield?' And once we get to optimum yield, I think the allocation issues would take care of themselves."
Cristy Fry has commercial fished out of Homer and King Cove since 1978.