UCI Northern District EO

[fishNphysician]

Upper Cook Inlet Commercial Fishing Announcement No. 1 closes commercial salmon fishing in the Northern District of Upper Cook Inlet on Monday, May 26, 2014.

http://www.adfg.alaska.gov/static/applications/dcfnewsrelease/401704712.pdf

 

[Nerka]

In my opinion this is a totally illegal emergency order. It is not about whether it is needed or not. The PMA case which went to the Supreme Court states that ADF&G cannot change management plans prior to the season without new and significant information. This emergency order changes those management plans without meeting that criteria. The early run Kenai River chinook emergency order does the same. While some may want to argue this is needed the fact is that the courts and legislature and constitution are there to protect users from ADF&G making allocation decisions that have been passed by the BOF prior to the season.

Just for the record ADF&G changed a management plan on chum salmon prior to the season. The Peninsula Marketing Association sued that ADF&G could not change the plan prior to the season. The court ruled in favor of PMA. This has been the standard ADF&G operated with until recently and in my opinion they are breaking the law. All ADF&G has to do is start the season for both fisheries and after a few days issue the e.o. That would be clean. Arrogance of power is the rule with this Administration.


I wonder if anyone will challenge this in court.

 

[willphish4food]

Well, the Dept has already issued EO's closing nearly all Susitna drainage streams to retention of King salmon by sportfishermen
due to numerous years of not meeting sustainable goals. The forecasts coming in each year are new and significant, I would think. Sure makes sense to close a fishery that catches indiscriminately fish bound to all drainages.

Seems like a very interesting take you have, Nerka. You and many others on this forum and in the meetings resist regulatory restrictions in the ND setnet fishery, claiming that if a Chinook shortage is forecast or becomes apparent inseason, managers just have to issue an EO to close the fishery. Now you claim that to do so is illegal. Nice.

 

[Nerka]

Well, the Dept has already issued EO's closing nearly all Susitna drainage streams to retention of King salmon by sportfishermen
due to numerous years of not meeting sustainable goals. The forecasts coming in each year are new and significant, I would think. Sure makes sense to close a fishery that catches indiscriminately fish bound to all drainages.

Seems like a very interesting take you have, Nerka. You and many others on this forum and in the meetings resist regulatory restrictions in the ND setnet fishery, claiming that if a Chinook shortage is forecast or becomes apparent inseason, managers just have to issue an EO to close the fishery. Now you claim that to do so is illegal. Nice.

As usual willphish4food you have it wrong. Read the PMA case and the e.o authority of the Department. New and significant information is not a pre-season forecast. Even the AG said so in the Brown decision. What the Department has to do is have some in-season information. That may be the harvest from a single fishing period. The courts have not defined the level of information yet.

I said the EO to close a fishery is with the Department and after the season starts, not before. So try to understand the difference. Also, I never said restrictions in the ND fishery are not needed some years. What I have said is that to restrict the commercial fishery which takes less than 1% of the ND chinook return and allow in-river users to continue is not good management.

 

[Cohoangler]

Nerka - I won't disagree with you, but perhaps you can explain this statement in the EO:

"King salmon originating from the Chuitna River drainage remain a stock of management concern. As a result of this finding, the king salmon sport fishery in this drainage has been closed since the
2011 season. The Northern District King Salmon Management Plan (5 AAC 21.366) specifies that
if the Chuitna River is closed to sport fishing, the commissioner shall close the commercial king
salmon fishery, by emergency order, from the wood chip dock to the Susitna River. This
emergency order implements that mandatory closure."

Seems to me that if BoF approved the ND King Salmon Mgt Plan (I'm assuming they did), then the Commissioner is just implementing what it says. And, based on the EO, it does say "mandatory closure" and "by emergency order". Not sure the Commis has alot of flexibility here. But there is probably more to the story than I'm seeing.....

 

[Nerka]

Nerka - I won't disagree with you, but perhaps you can explain this statement in the EO:

"King salmon originating from the Chuitna River drainage remain a stock of management concern. As a result of this finding, the king salmon sport fishery in this drainage has been closed since the
2011 season. The Northern District King Salmon Management Plan (5 AAC 21.366) specifies that
if the Chuitna River is closed to sport fishing, the commissioner shall close the commercial king
salmon fishery, by emergency order, from the wood chip dock to the Susitna River. This
emergency order implements that mandatory closure."

Seems to me that if BoF approved the ND King Salmon Mgt Plan (I'm assuming they did), then the Commissioner is just implementing what it says. And, based on the EO, it does say "mandatory closure" and "by emergency order". Not sure the Commis has alot of flexibility here. But there is probably more to the story than I'm seeing.....

I will try as the interaction of the Board and ADF&G is one of tension in authority. The Board sets the management plans which are allocation and conservation oriented. The closure of a particular stream or area by emergency order authority requires new and significant in-season information which the Board did not have before them.

The reason is to keep ADF&G from over ruling Board allocation plans by e.o. This is the PMA case. So the Board could close the sport fishery in the Chuitna River at a regular scheduled meeting and close the commercial fishery at the same time. However, they did not do this. They said if the Chuitna River is closed. That means if ADF&G closes it by e.o then the commercial limitations are implemented. However, e.o must require in-season information not forecast. The reason is that ADF&G could use a forecast to change an allocation plan and then have the forecast be wrong thus violating an allocation plan of the Board. As I said what constitutes new and significant information in-season has not been determined by the courts. But if the Board knew the forecast and did close the fishery at a regulatory meeting then a forecast is not new and significant information.

So the tension between ADF&G and the Board is on-going and the courts have to decide what is the proper balance. The PMA case established the authority of the Board for allocation while the Brown case on the Board trying to limit the e.o. authority of ADF&G favored ADF&G. What is happening is that ADF&G wants to use forecast as new and significant information which is very questionable given the testimony of ADF&G at the Board meeting in 2014.

Now a stock of concern does not have any real meaning without regulations. It is just a call for an action plan. The meat is in the regulations and on some stocks of concern the Board has taken action and others they have not in a comprehensive way.

 

[MRFISH]

Why can't a forecast be new and significant information to be used in an EO? It's determined annually instead of the triennial board cycle.

 

[Cohoangler]

Thanks Nerka, but the EO says nothing about a pre-season forecast. It says that Chuitna Rv Chinook are an on-going management concern, and have been since 2011. As such, they are mandated by the mgt plan to close the commercial harvest, since they have already decided to close the recreational harvest. Perhaps I missed something in the EO, but I didn't see any reference to a pre-season forecast, particularly as it relates to the purpose of the EO.

I understand the tension between the Commission and the Commissioner. That tension is very common in almost any State that has such a regulatory structure. Alaska is no different. And it's not unusual for a State court to decide where the authorities of each begin and end, under the prevailing State law. I realize there is a legal history here, but I see nothing in the EO that suggests anyone is breaking the law.

But then I live in Vancouver, WA, not the Great Land........

 

[Nerka]

Thanks Nerka, but the EO says nothing about a pre-season forecast. It says that Chuitna Rv Chinook are an on-going management concern, and have been since 2011. As such, they are mandated by the mgt plan to close the commercial harvest, since they have already decided to close the recreational harvest. Perhaps I missed something in the EO, but I didn't see any reference to a pre-season forecast, particularly as it relates to the purpose of the EO.

I understand the tension between the Commission and the Commissioner. That tension is very common in almost any State that has such a regulatory structure. Alaska is no different. And it's not unusual for a State court to decide where the authorities of each begin and end, under the prevailing State law. I realize there is a legal history here, but I see nothing in the EO that suggests anyone is breaking the law.

But then I live in Vancouver, WA, not the Great Land........

Cohoangler, what you are missing is reading the PMA case. The Sport Fish Divisions closed the sport fishery by e.o and then close the commercial fishery and cited the management plan. That is not legal because the Board of Fish had the management plan and forecast before them at the regulatory meeting and took no regulatory action. Therefore, ADF&G must open the fisheries - both of them - and then based on new and significant information that was not before the Board write an e.o. That is what the Brown decision is about. In the Brown decision the State took the position that the Board could limit the e.o authority of the ADF&G and the State AG tried to defend that position. When that failed the State position was ADF&G could not override the Board authority without new and significant information. Just the opposite position the e.o states as again the Board had the forecast and status of the runs when they met in the winter of 2014.

Mr. Fish, one could argue a new forecast, one not given to the Board, is new and significant information but that is what State argued in the PMA case and the court ruled that the State e.o authority did not allow that. Basically they said ADF&G attempt at reallocation and conservation actions were not legal. That is the point here.

All the ADF&G had to do was open one fishing period and then make a decision or have some type of information not before the Board.

The problem with all this is this is the same type of management the federal government did and that is why we as a State rejected it. The idea that an agency knows the status of the return before it shows up and makes decisions in the absence of any information on actual run strength is just wrong.

The alternative management plan would have been to have the fishery not open per Board regulation and then have a trigger in-season to open the fishery by e.o. That would accomplish what the ADF&G wants and be legal. That would require ADF&G to have in-season data. The Board went the other way and allowed the season to start with the provision to close when data indicated a closure was necessary.

If you look at 2012 the Board has good reason and the public to distrust forecast. They are terrible given the counting error for chinook salmon. So in 2012 the ADF&G approach failed and caused millions of dollars in damage and taxpayers to bail out a fishery to the tune of 11 million dollars. Good reason for the public to distrust ADF&G forecast. Starting the season fishing is what has historically been done in Alaska and then make adjustments based on the real run strength.

 

[MRFISH]

But didn't the PMA case involve a complete pre-season departure from a management plan (didn't that stem from the time that Hickel told the Department to lower the fixed chum cap in the Area M June fishery)--instead of working within the frameworked authorities of the management plan, which seems to be more of the case with the current EO?Perhaps I'm off base; I'm blissfully less-than-familiar with the fine details UCI's current management plans ;-)

 

[Nerka]

But didn't the PMA case involve a complete pre-season departure from a management plan (didn't that stem from the time that Hickel told the Department to lower the fixed chum cap in the Area M June fishery)--instead of working within the frameworked authorities of the management plan, which seems to me more of the case with the current EO?Perhaps I'm off base; I'm blissfully less-than-familiar with the fine details UCI's current management plans ;-)

Yes, Rossier as Commissioner really went out of bounds but even with that it went to the Supreme Court. The problem is the State has argued from different positions in two different cases. Both of which they lost. I am opposed to pre-season e.o's when the ADF&G and Board have regulatory options that can happen prior to the season that do not involve having ADF&G take actions that are questionable from a legal,management and allocation viewpoint. For example ADF&G could issue their own regulations, not e.o, but one that has public involvement. They could petition the Board and have the Board act, or they could have submitted a proposal and had the Board act at the normal regulatory meeting. All of these would have been legal.

One problem with action using e.o is that an e.o has allocation impacts and if the basis for the e.o is wrong someone gets hurt. In 2013 the ADF&G did something like this e.o and yet the chinook escapement into the Susitna was over 100,000 fish. Yet fisherman who were far away from stocks of concern were impacted without real justification because of a forecast. Kodiak has seen the same approach.

 

[aktally]

So the Board could close the sport fishery in the Chuitna River at a regular scheduled meeting and close the commercial fishery at the same time. However, they did not do this. They said if the Chuitna River is closed. That means if ADF&G closes it by e.o then the commercial limitations are implemented. However, e.o must require in-season information not forecast. The reason is that ADF&G could use a forecast to change an allocation plan and then have the forecast be wrong thus violating an allocation plan of the Board. As I said what constitutes new and significant information in-season has not been determined by the courts. But if the Board knew the forecast and did close the fishery at a regulatory meeting then a forecast is not new and significant information.

Just wanted to point out that at the 2011 UCI meeting when the board designated Theodore, Lewis, and Chuitna rivers stocks of concern, they closed these rivers (along with the Beluga River) to king salmon fishing by regulation. So sport fishing has been closed by regulation and not emergency order in these streams since 2011. They will not be reopened until the board changes the regulations. Therefore, each year, commercial fisheries division will have to issue an emergency order to close fishing in that area designated in the management plan. Don't ask me why the plan was written that way because I don't know.

 

[willphish4food]

Nerka, 100,000 fish sounds like a big number. But it is meaningless to rivers that didn't meet escapement goals, and for those which did meet goals in 2013, that is just one season out of 5-7 in a Chinook return cycle. Many streams in the system have underescaped in 4 of the last 5 years; they need more than one year of adequate escapement to rebuild depleted stocks. Why are you so opposed to management steps that attempt to achieve that?

And as to allocation; when nearly all road accessible streams are closed to the retention of kings, and the annual limit of sport caught fish is reduced from 5 to 2, and commercial fishing is allowed to continue with no EO restriction, that would be a massive allocation shift. Closing a period of the commercial season, in light of all the restrictions to the sport side, is not an allocation grab for sportfish, by any stretch of the imagination.

 

[Cohoangler]

Thanks Nerka. I won't question your legal analysis, or your view that this case is similar to the PMA case. However, (I'm not trying to be argumentative), but this statement caught my eye:

The idea that an agency knows the status of the return before it shows up and makes decisions in the absence of any information on actual run strength is just wrong. .

But that is exactly how fisheries are managed on the Columbia River every year. We can only guess on the status of the adult returns of salmon to the Columbia River until they show up at Bonneville Dam, which is 150 miles upstream from the ocean, and well past the entire commercial fishery, and a large percentage of the recreation fishery (Portland area). We have computer models, but we don't really have any information on the actual run strength until they show up at BON. Test fisheries are a very poor indicator of run strength, and they don't provide any information for pre-season planning.

I agree that ADF&G may not have estimated the run-size accurately in 2012, or whenever. But presumably, they used the best information available, and made the best decision they could with the information they had. I see the same thing down here. Fish managers on the Columbia are routinely chastised for inaccurate run-size forecasts, particularly for spring Chinook. But what else is there? If someone has a better computer model, bring it on. If someone has a better method of making pre-season forecasts, let's hear it. But in the meantime, we muddle along with the tools we have. If I'm being overly sensitive on this issue it's because, too often, fishery managers don't have the tools to predict future run-sizes accurately enough to keep bad things from happening. But they get blamed when the fish don't show up.

As anglers, conservationists, and yes, former fish managers/researchers, we can do better than piling on.

 

[Nerka]

Cohoangler, I agree that places like the Columbia have major issues when the fish counting system is 150 miles upstream. That is a no win situation. Here in UCI we are not faced with that type of issue. I think what I am trying to say and what Aktally indicated is the Board did some things that cannot be explained. Therefore, rather than put ADF&G in the position of having to write questionable e.o's the Board and ADF&G should correct this. Then the public and managers have a clear idea of what can and cannot be done. Why this was not corrected at the 2014 meeting also cannot be explained.

Willphish4food, if managers only managed to the lower end of an escapement goal there would be no sport fisheries in the major drainages as some subsystem would always drive the management action. That is why systems are managed to meet goals but in some years a goal or more will not be met. Remember a number of major river systems have mixed stock sport fisheries. So again it is one of balance not some set in stone criteria. The discussions should be on balance in a mixed stock fishery. That balance would be escapement levels on both ends of the goal, trends in escapement, options for management, flexibility in management, and clear allocation objectives. We have gotten very far from that in UCI.

Just for the record, Aktally pointed out the part about closure of a section of the ND and he is correct. However, the e.o on commercial fishing restricted fishing through out the ND which is not part of any regulation directive pre-season. Also, it reduces fishing time for all the periods. That means the whole season in all of the ND. There are no data to support a total season reduction. ADF&G could rescind this e.o if fish runs are stronger. However, that is unlikely given the impact this e.o had on users. So politically it is safer to let this go and then when over 100,000 reach the Susitna everyone says what the heck. That is the problem right now. ADF&G has actually reduced their own flexibility in the commercial fishery with no data to justify giving up that flexibility. The first part of the e.o is below.

This announcement also reduces the open fishing time from twelve hours to six hours per day for
the remaining four commercial king salmon fishing periods scheduled in the Northern District of
Upper Cook Inlet for the 2014 season. The fishing periods affected by this announcement occur on
the following four Mondays: June 2, June 9, June 16, and June 23, 2014. On these days,
commercial fishing with set gillnets will be open in all waters of the Northern District of Upper
Cook Inlet from 7:00 a.m. until 1:00 p.m. only; except commercial salmon fishing remains closed
for the entire 2014 directed king salmon fishery in that portion of the General Subdistrict of the
Northern District from a point at the wood chip dock located approximately three miles south of
Tyonek at 61° 02.77’ N. lat., 151° 10.04’ W. long., to the Susitna River (Figure 1). All areas will
return to their normal fishing schedule of 7:00 a.m. to 7:00 p.m. on Mondays and Thursdays,
beginning on Thursday, June 26, 2014.

 

[willphish4food]

Nerka: "Willphish4food, if managers only managed to the lower end of an escapement goal there would be no sport fisheries in the major drainages as some subsystem would always drive the management action. That is why systems are managed to meet goals but in some years a goal or more will not be met."

Correction to Nerka: the Parks Hwy streams with missed escapements are not "some subsystem." We're not talking Slikok Creek. They are the Willow, Little Willow, Montana, and Sheep Creek, responsible for 10's of thousands of angler hours during king season at their peak. Lake Creek, Talachulitna, Clear Creek in the Yentna and Talkeetna. These ARE the major drainages of the Big Su and Yentna. As to some streams missing escapement: in 2012 over 80% of index streams did not meet their minimum escapement goal. This was the 4th year of 5 for many of the streams, 6th year out of 8 for some; a complete life cycle for Chinook. These numbers prompted emergency action, and one year of better returns (2013) isn't enough to justify unrestricted fishing in 2014.

 

[smithtb]

How are most of the systems you mention counted Willphish? Single areal survey?

 

[willphish4food]

With all this hullaballoo about closing a period, and unjustified restrictions, one wouldn't know that ND still gets to fish 4 periods. Prior to liberalization in 2008, they could only fish 3 12 hour periods. Prior to 2005, they could only fish 3 6 hour periods. So the restriction is still a net gain of 33% over 10 years ago. I wish I could get that kind of restriction to my paycheck!

 

[willphish4food]

How are most of the systems you mention counted Willphish? Single areal survey?

Doesn't matter: its the best available science. That is what the department must manage by.

 

[Nerka]

Nerka: "Willphish4food, if managers only managed to the lower end of an escapement goal there would be no sport fisheries in the major drainages as some subsystem would always drive the management action. That is why systems are managed to meet goals but in some years a goal or more will not be met."

Correction to Nerka: the Parks Hwy streams with missed escapements are not "some subsystem." We're not talking Slikok Creek. They are the Willow, Little Willow, Montana, and Sheep Creek, responsible for 10's of thousands of angler hours during king season at their peak. Lake Creek, Talachulitna, Clear Creek in the Yentna and Talkeetna. These ARE the major drainages of the Big Su and Yentna. As to some streams missing escapement: in 2012 over 80% of index streams did not meet their minimum escapement goal. This was the 4th year of 5 for many of the streams, 6th year out of 8 for some; a complete life cycle for Chinook. These numbers prompted emergency action, and one year of better returns (2013) isn't enough to justify unrestricted fishing in 2014.

Excuse me. The systems you mention by your own words are subsystems of the Susitna River. Also, I never said that unrestricted fishing was required. Your words not mine. I stated that e.o's should be issued just not pre-season and that the Board if they thought things were as dire as you make out would have closed the whole ND and all the sport fisheries in the main drainage of the Susitna. They did not do that - why? Because they knew that if they started down that road the confluence fisheries, like at the Deska,would need to close. They take more than Deska bound fish. They also take fish headed upstream. Also, small systems would be driving major system harvest. So a system with a few hundred fish would keep thousands of angler days from happening.

Relative to your comment on hours fished in the ND you again fabricate a story to meet your bias. If you want to look at the fishery management plans it gave the ND a quota of 12,500 which they have never taken. They took 1000 fish last year out of a ND chinook return of over 100,000 fish probably closer to 150,000 fish - hardly the dire return you portray. So 99% of the fish went into the systems in the valley.

Finally, not meeting an MSY or SEG does not mean doom and gloom. These are all set to have high sustained yields. They are not SET or Sustainable Escapement Thresholds which would be much lower.

Relative to tbsmith comment on single aerial surveys he is correct for a number of systems and years. That is not even good science at any level. If the systems are in such poor shape then more surveys and better data is required. I challenge anyone to find a paper supporting single aerial surveys as an acceptable method of defining escapement levels for a system.