A NOAA Fisheries final rule prohibiting commercial salmon fishing in federal waters off Cook Inlet beginning in 2022 is being challenged in federal court in Alaska by three commercial fishermen represented by a libertarian public interest law firm in Arlington, Virginia.
The final rule implementing Amendment 14 to the Fishery Management Plan for Salmon Fisheries in the Exclusive Economic Zone (EEZ) off Alaska was announced by NOAA Fisheries on Nov. 3. The EEZ extends from three nautical miles to 200 nautical miles off Alaska, and will close an area historically used by the Cook Inlet drift gillnet fleet. Those harvesters would then be limited to harvesting only in state waters.
Seven days later, the Pacific Legal Foundation filed their suit, Humbyrd v. Raimondo, in the U.S. District Court for the District of Alaska, targeting the Interior Department and National Marine Fisheries Service. The plaintiffs, Wes Humbyrd, Robert Wolfe and Dan Anderson, three men who have fished commercially for decades in Cook Inlet’s federal and state waters, seek a permanent injunction of the NOAA decision.
The foundation, which is representing the fishermen at no cost, said it is asking the court to restore their rights “to earn an honest living without interference by an illegally formed agency and its equally unlawful regulation.”The North Pacific Fishery Management Council developed the fishery management plan for salmon in Cook Inlet under the Magnuson-Stevens Fishery Conservation and Management Act over 40 years ago. The current salmon management plan excludes designated federal waters in Cook Inlet, allowing the state of Alaska to manage the fishery.
Cook Inlet commercial salmon harvesters and processors challenged exclusion of the Cook Inlet EEZ from that plan. The U.S. Court of Appeals for the Ninth Circuit subsequently held that the Cook Inlet EEZ must be included in the plan to comply with the Magnuson-Stevens Act. Under the act, federal fisheries management councils must prepare management plans for fisheries under their jurisdiction that require conservation and management.
The council recommended and NOAA Fisheries implemented Amendment 14 to the salmon management plan and regulations to comply with that decision. Amendment 14 specifically addresses the Cook Inlet EEZ and commercial salmon fishery in those waters.
NOAA Fisheries said that the council worked with them, the Alaska Department of Fish and Game and the public from 2017 to 2020 to develop Amendment 14. The council ultimately concluded that closing the EEZ to commercial salmon fishing would optimize conservation and management of the fishery, and in December 2020 the council voted to recommend Amendment 14 to the salmon management plan in response to the Ninth Circuit court ruling.
The plaintiffs contend that under the U.S. Constitution, “such significant federal powers must be stewarded by officials who are appointed by the president and confirmed by the Senate.” Neither applies to members of the North Pacific Fishery Management Council.The attorneys also accused the council of being more concerned with parochial state politics than doing the work required to responsibly manage federal waters for the benefit of the nation, as required by Magnuson-Stevens.
“But because the council was not properly appointed and was thus serving unconstitutionally when it adopted Amendment 14, the regulation itself is unconstitutional,” plaintiffs’ attorneys said in a statement. “So Wes and two other longtime commercial fishermen are fighting back.”