Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-13-08259 CI.
Bruce B. Weyhrauch, Gayle Horetski, Larri Irene Spengler, Law Office of Bruce B. Weyhrauch, LLC, Juneau, for Appellant.
Michael G. Mitchell, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
Alaska's Upper Cook Inlet fishery accommodates many resource users. Relevant to this appeal, set net and drift net commercial fishers both target sockeye salmon returning to the Kasilof and Kenai Rivers. The 2013 commercial fishing season in the Upper Cook Inlet saw strong sockeye salmon runs, but the Kenai River king salmon run was the weakest on record. The Alaska Department of Fish and Game (Department) regulates commercial and sport fishing. Attempting to achieve the minimum escapement goal for Kenai River kings while also keeping the strong sockeye run in check, and recognizing that set netters' incidental harvest of those kings posed a greater risk to the king run than did drift netters' substantially smaller incidental harvest, the Department's Commissioner (Commissioner) used her emergency order authority to limit time for and then
close the set net fishery while also increasing the drift net fishery time.
The set netters filed suit and sought an emergency preliminary injunction to re-open their fishery. The superior court declined to issue an injunction. The set netters amended their complaint to request a declaratory judgment recognizing the validity of the Board of Fisheries' (Board) management plans and a permanent injunction directing the Department to follow those plans. They also sought damages, asserting constitutional claims and a claim for negligent or willful fisheries mismanagement. The superior court granted summary judgment in full to the Department and assessed an attorney's fees award against the set netters, who now appeal both orders. Because there are no genuine issues of material fact and the Department is entitled to judgment as a matter of law, we affirm the grant of summary judgment. Because we see no abuse of discretion in the superior court's attorney's fees award, we affirm that award as well.
II. FACTS AND PROCEEDINGS
Cook Inlet Fisherman's Fund (CIFF) represents commercial fishers in the Cook Inlet fishery, including both set net and drift net fishers. The Cook Inlet fishery accommodates commercial, sport, personal, and subsistence users, and is a complex and crowded fishery. All five Pacific salmon species make their way through Cook Inlet and into its numerous river systems, including the Kasilof and Kenai Rivers.
1. Overview of the 2013 sockeye and king salmon commercial fishery in Upper Cook Inlet
The Department manages salmon stocks to achieve certain escapement ranges. According to a Department scientist the upper and lower limits of a range represent numbers of spawning salmon which should produce the same sustained yield.
In 2013 the Kasilof River sockeye run was particularly robust -- by June 29 the run was at record strength and on July 23 the run had exceeded the Department's upper escapement goal of 390,000 fish by more than 40,000. By August 7 nearly 490,000 sockeye had escaped into the Kasilof River. Although the Kenai River sockeye run began at an average level, it increased throughout the season and eventually exceeded the upper escapement goal of 1,200,000 fish by nearly 160,000.
By contrast the 2013 Kenai River king run was weak. Kenai River kings return during an early run in May and June and a late run in July and early August. Since 1986 the Kenai River king run never has failed to exceed the Department's minimum escapement goal, but according to the Department the " Kenai River [kings] are experiencing a period of lower abundance, with the 2013 run being one of the lowest on record." The 2013 Kenai River king early run was " possibly the lowest run on record," and the late run " was the lowest on record."
The Department's historical data for late-run Kenai River king commercial harvest rates shows that although both set and drift netters primarily target sockeye, between 1986 and 2012 set netters incidentally harvested almost 14 times more late-run Kenai River kings than did drift netters. Another report shows that from 1966 to 2012 drift netters on average harvested only 6.4% of Upper Cook Inlet commercial kings, while set netters harvested the remaining 93.6%.
2. Salmon management regulations and the Commissioner's 2013 emergency orders
By regulation both set and drift netters in the Cook Inlet area may fish from seven in the morning until seven at night on Mondays and Thursdays. But as an area management biologist for the Department's commercial fisheries division testified at the preliminary injunction hearing: " In the various management plans the Board has provided the Department with the option of fishing more time to increase the harvest or to slow down the rate of escapement that is . . . going into the various rivers."
For example when the Kenai River sockeye late-run strength is between 2,300,000 and 4,600,000 fish, " the commissioner may, by emergency order, allow extra [set net] fishing periods of no more than 51 hours per week" in the commercial fishing waters at issue here. The late-run strength was at such a level in 2013. The Commissioner also may open supplemental set net fishing periods of up to 48 hours per week in the Kasilof River sockeye fishery, but on and after July 8 this fishery is governed by the 51-hour discretionary rule. On the other hand drift netters may be allowed an extra 12 discretionary fishing hours only between July 9 and July 15. The Upper Cook Inlet management plan governing both drift and set net fishing provides:
Notwithstanding any other provision of this chapter, it is the intent of the board that, while in most circumstances the department will adhere to the management plans in this chapter, no provision within a specific management plan is intended to limit the commissioner's use of emergency order authority . . . to achieve established escapement goals for the management plans as the primary management objective.
According to the December 2013 Upper Cook Inlet Commercial Fisheries Annual Management Report, 2013 was a unique year: " The continued poor performance of the Kenai River late-run [king] salmon return combined with an above average sockeye salmon return led to an atypical management strategy during late July." To account for these disparate run strengths, the Commissioner took the following actions during the 2013 commercial fishing season.
For the week of June 23, although 48 discretionary fishing hours were potentially available to some set netters, the Commissioner added only 2 hours. For the next week, although 48 discretionary fishing hours were potentially available to some set netters, the Commissioner added only 16 hours. For the week of July 7, although 51 discretionary fishing hours were potentially available to some set netters, the Commissioner added only 8 hours. That same week, drift netters fished an additional 12 hours.
During the week of July 14 the Commissioner opened some set net fishing for 18 additional hours, but drift netters were allowed an additional 42 hours. For the week of July 21 one regular 12-hour set net fishing day was closed, but drift netters fished their two regular 12-hour periods. The emergency order stated:
As of July 22, indices used to assess inriver abundance indicate a king salmon run that is below average. . . . At the current rate of harvest, the projected [Kenai River late-run king salmon] escapement will be below the [sustainable escapement goal]. . . .
Therefore, limiting the harvest of king salmon in the . . . set gillnet fishery is warranted in an effort ...