Ninth Circuit Sides With Fishermen in Inlet Fight

     
     ANCHORAGE, Alaska (CN) — In a decision praised by fishermen for its adherence to high standards, the Ninth Circuit ruled Wednesday that the federal government must manage fisheries in federal waters that require conservation, unless a fishery-management plan cedes control to a state.
     Reversing a decision from the Alaska Federal Court, the Ninth Circuit panel held that the National Marine Fisheries Service is required by the Magnuson-Stevens Fishery Conservation and Management Act to include the Cook Inlet in its fishery-management plan. It may not hand over control of the inlet to the state of Alaska without first drawing up a plan, according to the 20-page ruling.
     Since 1976, the federal government has claimed authority of all waters up to 200 nautical miles from U.S. coastlines. According to the Magnuson-Stevens Act, a given state maintains jurisdiction over the first three miles and the federal government controls the next 197. Regional councils are needed to create plans for fisheries that require conservation and management.
     The North Pacific Council has jurisdiction over Cook Inlet, which is famous for its salmon, among other things, and serves as one of three still-legal, net-fishing areas in western Alaska that require conservation and management.
     In 2011, the Council voted and passed Amendment 12 to remove the net-fishing areas from its plan, arguing that the plan was vague on management goals and that the state was the most appropriate management authority.
     However, the amendment was opposed by the United Cook Inlet Drift Association and the Cook Inlet Fishermen’s Fund, two groups of commercial fishermen. They argued that the state’s failure to deal with carnivorous northern pike and its improper escapement management have contributed to a 51 percent reduction in the sockeye salmon catch since 1981.
     Alaska has escapement goals for the number of fish allowed to escape past fisheries and spawn. United Cook said Alaska mismanaged its escapement goals for salmon, allowing a large unharvested supply of fish. The group also said the state “has no escapement goals at all for many runs in Cook Inlet.”
     The National Marine Fisheries Service, or NMFS, approved the amendment in 2012 and the fishermen brought their case to court. The district court granted summary judgment to both the federal government and the state of Alaska, which intervened as a defendant. The district court’s position was that the Magnuson-Stevens Act is ambiguous, so the amendment is not arbitrary or capricious.
     Judge Andrew Hurwitz, delivering the Ninth Circuit’s unanimous decision, wrote that, on the contrary, the Act is not ambiguous.
     “The Act is clear: to delegate authority over a federal fishery to a state, NMFS must do so expressly in [a plan],” Hurwitz wrote for a three-judge panel. “The government argues removing Cook Inlet from the [plan] amounts to delegation. But, the federal government cannot delegate management of the fishery to a state without a plan, because a council is required to develop [plans] for fisheries within its jurisdiction requiring management and then to manage those fisheries ‘through’ those plans.”
     It is undisputed that the Cook Inlet fishery is subject to conservation and management. The government argued that a plan should only be necessary for fisheries that require federal conservation, but the word “federal” does not appear in the relevant section and the Ninth Circuit declined to read it into the statute, Hurwitz said.
     The legislative history of the Magnuson-Stevens Act does not support the government’s argument either, given that Congress has often rejected plans to allow states to manage fisheries in federal waters absent a plan, the Ninth Circuit found.
     “The Act makes plain that federal fisheries are to be governed by federal rules in the national interest, not managed by a state based on parochial concerns,” Hurwitz wrote.
     Jason Morgan from Stoel Rives LLP in Seattle represented the fishermen. The government’s case was argued by Ellen J. Durkee from the U.S. Department of Justice’s Appellate Section, Environment and Natural Resources Division, and by Seth Beausang, Alaska’s assistant attorney general.
     The United Cook Inlet Drift Association called Wednesday’s ruling “a victory for our salmon resources and the people of Alaska.”
     “With the use of standards described in the [Act], such as conservation, sustainability, prevention of over-fishing, and by utilizing the best scientific information available, the salmon resources of Cook Inlet will be sustainable and bountiful for all Alaskans who rely on Cook Inlet salmon for recreation, healthy food, and jobs, for generations to come,” the group said in a statement.
     Caroline Park — who was named as an attorney for the government from the Fisheries and Protected Resources Section of the National Oceanic and Atmospheric Administration Office of General Counsel in Silver Spring, Md. — declined to comment, and the office as a whole declined to comment as well.
     Cori Mills, Alaska’s assistant attorney general, said the state “disagrees with the decision of the Ninth Circuit Court of Appeals to reverse the longstanding federal approval of state management of salmon fishing in the federal waters of Cook Inlet. “
     “The State has managed salmon fishing in this area since statehood, and the National Marine Fisheries Service and North Pacific Fishery Management Council both concluded that the State’s management is the best way to prevent overfishing—the primary purpose of the Magnuson-Stevens Fishery Conservation and Management Act,” Mills said in a statement. “The court’s interpretation of the Act will increase the risk of overfishing in this area and is simply incorrect in our opinion. We will continue to review the decision and evaluate our options.”
     The Justice Department did not return a phone call seeking comment Wednesday.

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