Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game, S-17955

CourtSupreme Court of Alaska (US)
Writing for the CourtMAASSEN, JUSTICE
Docket NumberS-17955
Decision Date12 August 2022



No. S-17955

Supreme Court of Alaska

August 12, 2022

Appeal from the Superior Court of the State of Alaska No. 3KN-19-00641 CI, Third Judicial District, Kenai, Jason M. Gist, Judge.

Carl Bauman, Law Offices of Carl Bauman, Kenai, for Appellant.

Aaron C. Peterson, Senior Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellees.

Before: Winfree, Chief Justice, Maassen, Carney, and Henderson, Justices.

[Borghesan, Justice, not participating.]




A nonprofit entity representing commercial fishers sued the Alaska Board of Fisheries and the Department of Fish and Game, alleging that the State's fishery


management practices in Cook Inlet were unjustified and violated federal law and national standards. The nonprofit sought to depose two current Fish and Game employees but the State opposed, arguing that all material facts necessary for a decision of the case were in the administrative record.

The superior court agreed with the State and quashed the nonprofit's deposition notices. The court also granted summary judgment in favor of the State, deciding that the Cook Inlet fishery was not governed by federal standards and that none of the nonprofit's disagreements with the State's fishery management practices stated a violation of statute or regulation.

The nonprofit appeals. Because the superior court did not abuse its discretion by quashing the deposition notices, and because it correctly concluded that Alaska's fishery management is not governed by national standards, we affirm the judgment of the superior court.


A. Facts

The Alaska Department of Fish and Game and the Alaska Board of Fisheries (collectively the State) "are charged with the duty to conserve and develop Alaska's salmon fisheries on the sustained yield principle."[1] The Board is more specifically tasked with "allocating] fishery resources among personal use, sport, guided


sport, and commercial fisheries."[2] Fish and Game pursues its mandate through various management plans.[3] Under the Kenai River Late-Run King Salmon Management Plan in effect at the time relevant here,[4] if the projected in-river return of late-run king salmon was low-so low that the State was unable to "achieve the sustainable escapement goal and provide [a] reasonable harvest opportunity" - the Fish and Game Commissioner had the authority to prohibit by emergency order "the use of bait" in the Kenai River sport fishery for certain periods.[5] When the use of bait in the sport fishery was prohibited, the Commissioner had the authority to also impose specified timing and gear restrictions on the set gillnet fishery.[6]

In April 2019 Fish and Game announced that the outlook for late-run Kenai River king salmon was "well below average." Fish and Game notified the public that it would likely be implementing gear restrictions in July for both sport fishers and set net fishers in accordance with the Kenai River Late-Run King Salmon Management Plan. Fish and Game explained:

The outlook for the late run of Kenai River king salmon in 2019 is well below average, with a large fish (>75 cm [mid-eye to tail fork]) forecast of approximately 21,746 fish. The 2019 forecasted total run of large fish approximates the midpoint of the large fish sustainable escapement goal (SEG) of
13,500 to 27,000 fish. If the run performs as forecast, it is unlikely the SEG would be achieved if commercial[] sport, and personal use fisheries were prosecuted without any restrictions. Given the tendency to over[-] forecast runs in periods of low productivity, it is likely the in[-]river fishery will begin in July with no bait

Fish and Game explained how the bait restriction would also impact set netters:

In compliance with the Kenai River Late-Run King Salmon Management Plan, for the 2019 fishing season, if the Kenai River king salmon sport fishery is restricted to no bait, the Department intends to implement the set gillnet gear reduction options found in the Kenai River Late-Run King Salmon Management Plan. We are providing this intent now to allow fishermen time to modify their fishing strategies and gear.

In July 2019 Fish and Game prohibited the use of bait in the Kenai River king salmon sport fishery "in order to achieve the sustainable escapement goal." Fish and Game also implemented timing and gear restrictions for commercial set net fishers. Toward the end of the season, Fish and Game estimated the 2019 escapement of large late-run Kenai River king salmon at 11,671 fish - below the sustainable escapement goal of 13,500-27,000 fish.[7]

B. Proceedings

In July 2019 the Cook Inlet Fisherman's Fund (CIFF), an Alaska nonprofit corporation representing commercial fishers in Cook Inlet, filed a complaint seeking injunctive relief against the State. CIFF asserted that Fish and Game "failed to follow


the relevant management plans resulting in significant damage to CIFF members, to the commercial fishing industry in general, and to the salmon stocks." It argued that certain Board regulations changing fishery rules were "[w]ithout science-based justification and against the recommendations of experienced [Fish and Game] commercial fishing division personnel." It also claimed that "[t]he practical effect of the emergency orders issued by [Fish and Game] in 2019 is an impermissible allocation of fishery resources among the user groups, and not merely an unavoidable allocative consequence of a permissible use of the emergency order power."

CIFF sought a temporary restraining order, a preliminary injunction, and a permanent injunction directing Fish and Game "to cease and desist imposing arbitrary and unreasonable emergency orders for allocative purposes" and to act in accordance with various Fish and Game regulations.[8] CIFF also argued that "[f]ederal law requires that fisheries be managed in accord with 10 national standards for the conservation and


management of fisheries" as outlined in the Magnuson-Stevens Act[9] and that the State had "strayed impermissibly far from the national standards." CIFF asked the court to require the Board to repeal and rewrite several regulations.[10] The superior court denied CIFF's motion for a temporary restraining order and preliminary injunction on the ground that CIFF had failed to show that it was likely to succeed on the merits of its claims.

CIFF then sought to depose two Fish and Game employees: the commercial fisheries management coordinator for the Cook Inlet area and a fisheries biometrician based in Soldotna. The State moved to quash the deposition notices, arguing that "[discovery is unnecessary, and inappropriate, in this case, as the basis for all [Fish and Game] and Board decisions at issue [is] a matter of public record, and the relevant portions of that record have been incorporated into the administrative record produced to the parties by the State." The State argued that the court's review was limited to the administrative record under our 2015 holding in


Cook Inlet Fisherman's Fund v. State, Department of Fish and Game (CIFF 2015).[11] Fish and Game also argued that because CIFF made no claims that implicated Fish and Game scientists' personal beliefs or motives, there was no legitimate reason to depose them.

The State then moved for summary judgment. The State argued that it was "entitled to summary judgment because it followed the applicable management plans and did not violate the law." It argued that "CIFF fail[ed] to provide any support for its conclusions" that the Board promulgated regulations that were "not based on [the] best available conservation and management concepts," asserting that the administrative record "contained] thousands of documents presented to the board members and over one hundred hours of [Board] meetings that focused on the very plans that CIFF baselessly challenges." The State claimed that "there cannot be a dispute as to [a genuine issue of material fact] as everything that the Board does is a matter of public record. Each argument in favor of and each argument against each proposed regulation is documented and each board deliberation is recorded."

In its opposition to summary judgment, CIFF set out a number of issues of material fact it believed still existed, including whether Fish and Game "overlooked, ignored, or violated the Alaska Statehood Act Section 6(e) requirement that the fish resources in this state be administered, managed, and conserved 'in the broad national interest.'" CIFF also argued that a Ninth Circuit ruling in United Cook Inlet Drift Association v. National Marine Fisheries Service[12] {United Cook Inlet) required the


implementation of national fishery management standards in Cook Inlet.

Before the superior court ruled on the motion to quash and the motion for summary judgment, CIFF moved for leave to file an amended complaint seeking damages and additional injunctive relief. CIFF based its damages claim "on the failure of [Fish and Game] and the Board by negligence, intention, and neglect to manage and conserve the salmon fisheries in Cook Inlet in accord with federal and state law." CIFF also requested money damages to reimburse fishers for their lost fishing opportunities.

The superior court granted the State's motion to quash and motion for summary judgment and denied CIFF's motion for leave to file an amended complaint. The court found that while the Ninth Circuit's decision in United Cook Inlet made clear that the national fishery standards must be followed in Cook Inlet, the parameters of a national management plan had not yet been finalized. Thus, the court reasoned, it "could not have required the Board and [Fish...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT