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Thread: article on "UCIDA wins major battle in Cook Inlet Fish Wars"

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    Member thewhop2000's Avatar
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    Default article on "UCIDA wins major battle in Cook Inlet Fish Wars"

    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.
    If a dipnetter dips a fish and there is no one around to see/hear it, Did he really dip?

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    Member fullbush's Avatar
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    The numbers don't lie. Looks like a sound argument and worthy of the boards attention.

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    Worthy of the Boards attention? Yea right. Alll this can do is screw the process up which is in place by having the Feds put on hold any decisions made. Even the author of the article is very concerned on having the Feds get involved once again with state decisions concerning "OUR" fisheries. That was garnered by private message.
    Sometimes Fullbush, it's just not a matter of $$$$$$. This is just opening the door between State and Federal oversite. Just look at the Hunting of the Nelchina herd and all the problems we have due to state and federal standards and filling quota's for each. Look how the caribou hunt near Hope turned out. Local hunting only, by Federal decree. If I am not mistaken. I don't hunt that herd but you get the idea.
    The lawyers can spin it any way they want but this is just pure greed. I'm not sure why more people are not upset with this decision?
    If you want federal oversight, let us call Cook Inlet a safety zone for beluga's. Let us call the waters off the North slope a safety zone for Polar bears. Let us call western Alaska waters a safety zone for Stellar seas lions. See where that will get you for access and economics? Never mind the restrictions commercial fishing would have. Is that what you want? It might not effect you personally because of where you fish, but many of your Commercial fishing buddies, it would.
    It will give you nothing but restrictions. Is that what you want? I don't.
    Why this was just printed in a little story out of Homer when this is news worthy statewide, I don't know? I do know I spent the weekend getting the word out. Maybe with more people aware of this new wrinkle in our State process, the more concerned they will be.
    This may all be apples and oranges but I for one, am very concerned that just one fishing group can tie decisions up a year down the road, after they are made. WITHOUT STATE INPUT. OK, Enough rant. Have a good one guys!!! Ken
    If a dipnetter dips a fish and there is no one around to see/hear it, Did he really dip?

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    Optimum Sustained Yield (OSY) was mentioned several times. This is different than Maximum Sustained Yield, right?

    They refer to Optimum Sustained Yield. Optimum sustained yield of what? Sockeye only are mentioned. What about the Optimum Sustained Yield of the other species, particularly those that are more susceptible to overharvest or are more endangered? I think the scope of the Magnusun-Stevens act might need to be tweaked in light of the endangered Kenai/tributary runs of Chinook; same for current AK fisheries management. Are we going to continue with OSY or even MSY for sockeyes at the expense of other species? If we are intent on taking care of the fish (all of them) in the Kenai, then this focus on sockeye MSY or OSY is mis-prioritized.

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    I have been following this for over the past couple of years and I can say all of the above posts are too emotional and not based on facts or understanding of M/S - first the numbers quoted in the article are not correct or have been selected without a foundation in science. The actual BEG or SEG for the Kenai River sockeye is 500,000 to 800,000 spawning fish as counted by the Bendix counter. Second, the three tier approach does not change the spawning numbers at all but is a way to allocate fish. Third, M/S standards are good standards to judge decisions by and the federal government has always owned salmon along our coasts. Alaska does not own these federally owned fish. Finally, the Board of Fish is suppose to have the regulations reviewed by the Federal government and the Feds have not done so and that is part of the problem. Saying the sky is falling and not understanding the full issues in this case just leads people to overreactions and emotional fights that are not needed. Frankly, M/S has a lot of good things in it for maintaining fish stocks and fishing communities. To say that M/S just protects commercial fisherman is not correct. It also protects recreational fisheries. I would suggest people read M/S and the court case documents before jumping off a cliff. You may find that this is great for Alaska. It may bring Federal dollars to work on invasive species like pike, it may allow additional resources to do basic science on salmon, it could help keep research focused on the fish and not on allocative misdirection, and it may help the BOF with how to look at regulations that will benefit the fish and users.

    I am not sure where this will all end up but if played right there is a good chance that all users will be ahead. We cannot jump to the conclusion that the federal government is something bad. Here on the Kenai one reason we have fish is that most headwater lands are in federal ownership and protected. If the State had them they would be destroyed - the development in the Valley, Anchorage, and Kenai P on private lands does not take fish into consideration.

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    Member thewhop2000's Avatar
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    Default About time you chimed in, but

    Any splitting of management is bad, IMO. You end up getting conflicting regs and goals. Nerka, I find it somewhat baffling that you would favor the feds over the state... with your statements in the last post. I know you worked for the state and are not happy with a lot of their directions and policies lately but directions change from when you were in the midst.
    Our public process is not perfect but it has worked for the last 20 years. You might not like the outcome on some decisions through the years but has been working through public process and public imput, what more could a person ask for?
    When I am dipnetting, I am dipnetting state fish and if that is against Federal regulations, it is about time that the Alaska public get out from under NPFMC and demand their fair share. I believe like many others that Alaska fishers are getting the least fair shake from the feds. On this we will just have to agree to disagree. If I am standing on state land, those are state fish I am catching, in my eyes. Sorry, that is just the way I feel. It might be hyperbole and emotion but you just wait. This will come to a lot of frustration and Federal roadblocks on management, Mark my words. Ken f
    If a dipnetter dips a fish and there is no one around to see/hear it, Did he really dip?

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    Quote Originally Posted by thewhop2000 View Post
    Sometimes Fullbush, it's just not a matter of $$$$$$. Ken
    Touche buddy
    Ken you're right and I apologize. At times I need to remind myself of this very thing. I detest this human trait and find myself guilty more than I'd like to admit.
    In my defense this is what I was trying to tell you when you walked the slippery slope trying to get dipnetting reclassified as subsistance.

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    Fullbush, having a freezer full and having a bank account full are two distinct animals. But... I want everyone to have a fair shake and the Feds don't allow us to do that. I thought the Native lands act put everyone on an even footing but the feds don't agree. The payout by the American taxpayer for the lands act was enormous. I thought that put all Alaskans on equal footing. I guess I was just ignorant. It is like saying your wife has more of a right to fish stock than you do. Is that right? I don't know but I thought the resource belonged to all Alaskans, not just a select few. My deceased wife was half Italian and half Cherokee, what a beautiful combination, so no one can say I am prejudiced. I married an Indian.
    She also thought that too many were asking for too much special treatment too. I agree with her. We are all Alaskans but some groups want to be first in line when I believe it should all be shared. Call me a dreamer!!! Tootles, ken
    If a dipnetter dips a fish and there is no one around to see/hear it, Did he really dip?

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    Quote Originally Posted by thewhop2000 View Post
    Call me a dreamer!!!
    You are not the only one!

    This is a state issue. This could set an ugly precedent if it flies.
    ><((((º>¸.·´¯`·.¸¸.·´¯`·..¸¸ ><((((º>`·.¸¸¸.·´¯`·.¸¸><((((º>

    "People who drink light 'beer' don't like the taste of beer; they
    just like to pee a lot." --Capitol Brewery

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    Whop, not trying to insult you so please do not take this in that way. However, you have jumped to some assumptions that are not true. First, there will be only one set of regulations if this goes through. The regulations just need to comply with M/S and the parties have said that the BOF is the best regulatory body. Second, I have thought for years that the BOF has expanded beyound its authority. It is made up of lay people who have been deciding what science it correct or not. That is not their role in my opinion. Their role should be to allocate fish. M/S actually has a procedure to make science be evaluated by scientists. So the BOF will actually become stronger not weaker if they play by the roles. Finally, where fish are caught does not make them state or federal. The law clearly states that salmon are federal just like migratory birds. I find it interesting that for ducks, crab, and groundfish the state and feds have cooperated for years. So this is nothing new relative to management. It is just new to Cook Inlet salmon and thus the lack of knowledge is making people emotional rather than logical ( this is not directed at you but the general public when they hear this).

    I am not afraid of what is coming if this happens and it may be good for Alaska resources. Frankly the science the State has done recently needs some good outside review - chinook sonar, mark/recapture studies in the Susitna, lack of meaningful actions on pike, habitat decisions, and a host of other examples. My comment is be not afraid.

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    Default attorneys say the craziest things...

    Nerka, I agree with you about Magnuson-Stevens being a solid basis for fishery management and not something biased toward any user group. I'm not afaraid of the Feds when it comes to fishery management, nor do I subscribe to the "Feds:Bad" mantra that some harbor and some politicians further propogate by fanning the flames...

    Maybe I'm confused by the article versus the simple concession in the consent decree. I mentioned it in the other thread...and Charholio hits it again earlier in this thread. UCIDA's attorney really confuses things by throwing in his whacky OSY argument: that the Kenai would somehow be managed differently if you applied OSY as defined by Magnuson-Stevens. The attorney's discussions about what "he" thinks is "wrong" with UCI fishery management has nothing to do with the consent decree.

    But...I guess I'm still scratching my head about what UCIDA expects to come out of this? Is it just someone (Feds) looking over the State's (BOF) shoulder?

    I guess we'll see it play out later this winter. It seems possible that something will come out of the BOF meeting that UCIDA won't like. Then they get to "appeal" it to the Feds, right? Here's a question for any attorneys out there: the procedural agreement contained in the consent decree applies to anyone, right? Or is it just UCIDA?

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    You are correct Mr. Fish - the groups are confusing each other and the general public. OSY in M/S is defined as MSY. In the State system OSY is not MSY and therefore the confusion. UCIDA does not want to see social goals on systems - just biological goals based on MSY. I gathered this from talking with them. So that is point one.

    Second point is that allocation decisions have to comply with M/S mandate for fishing communities. They tend to view it from a commercial perspective. I have a broader view since M/S talks about recreationals fisheries. Certainly Soldotna could be viewed as a fishing community.

    Third, I know some in UCIDA see this as a path to better science and review.

    Fourth - some see this as a way to get the Feds involved with pike and habitat issues.

    The problem is that M/S is very comprehensive and written well to do these things. So people focus their comments on their interests.

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    How would this ruling affect the dipnet fishery? Would this possibly open the dipnetting up to all citizens of the U.S. if there is federal management?

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    Quote Originally Posted by Nerka View Post
    OSY in M/S is defined as MSY.
    No, it isn't. It defines OSY as premised on MSY, but also "as reduced by any relevant economic, social, or ecological factor."

    OSY can be equal to or less than MSY (it still has to be "sustainable"), but it cannot be more.

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    Here's the full definition for everyone:

    104-297
    (33) The term "optimum", with respect to the yield from a fishery, means the amount of fish
    which—
    (A) will provide the greatest overall benefit to the Nation, particularly with respect to
    food production and recreational opportunities, and taking into account the protection of
    marine ecosystems;
    (B) is prescribed as such on the basis of the maximum sustainable yield from the fishery,
    as reduced by any relevant economic, social, or ecological factor; and
    (C) in the case of an overfished fishery, provides for rebuilding to a level consistent with
    producing the maximum sustainable yield in such fishery.

    The whole act can be found here:
    http://www.fakr.noaa.gov/sustainable.../amended07.pdf
    the definition cut/pasted above is on page 10

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    Thanks Mr. Fish. The difference is that it is prescribed as such on the basis of the MSY - that is not the case with the State. The State has gone to SEG's which is not in M/S and thus appears to have a more flexible escapement goal policy. Also, I believe the annual catch limits have reference to MSY management. Again, no one knows how this will play out in the long run. I also noted that the item 6 in the october2010 council update has options that close the EEZ to salmon fishing around the State. That would be interesting. I am not sure how they would justify it but the staff has put it out there for the December meeting. Do you know anything about this?

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    I guess I'd disagree a little bit about "[t]he difference is that it is prescribed as such on the basis of the MSY - that is not the case with the State".

    The AK Constitution doesn't reference MSY...just "sustained yield", as do the statutes.

    But the regulations certainly take a MSY-based approach (at least on paper), particularly in the policy for the management of sustainable salmon fisheries. The policy clearly references BEG's as the "primary management objective" and that BEG's are MSY. Now, there are exceptions to the BEG/MSY primary management objective (such as OSY). What has happened is that the Department has become too strict with its interpretation of the policy's statement that BEG's "should be scientifically defensible on the basis of available biological information..." and they've reclassified some goals that were BEG's (and still should be) into SEG's. They have various reasons for this, and I don't agree with all of them.

    That's a Department decision, though. Not the BOF's. Both the sustainable salmon fisheries policy and the escapement goal policy make it clear that the Department makes BEG's and SEG's. The BOF only has a authority in setting OEG's. They can gripe about other decisions they disagree with, but can't change them...

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    Wonder why Grampyfishes hasn't chimed in. Hope all is well w/ Grampy

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    You are correct Mr. Fish about BEG to SEG. I recently looked at a sheet of goals and there were about 50 of them. There were only two BEG's. I think that is what UCIDA is concerned about. The SEG are just sustainable and in point of fact ADF&G has tried to use them to reach an allocative agenda. Anyway, I was wondering about Gramps also. Hope he is O.K>

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    It is difficult to predict what this decision will mean to future boards. M/S does indeed apply to recreational communities as well as commercial communities, and those communities which depend upon both. This means communities upriver that are affected by downriver management, as well. UCIDA may have opened a can of worms that will choke them.

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