A NOAA Fisheries final rule prohibiting commercial salmon fishing in federal waters of Cook Inlet beginning in 2022 is being challenged in federal court in Alaska by three commercial fishermen represented by an Arlington, Virginia libertarian public interest law firm.
The final rule implementing Amendment 14 to the Fishery Management Plan for Salmon Fisheries in the Exclusive Economic Zone off Alaska was announced by NOAA Fisheries on Nov. 3. The exclusive economic zone, or EEZ, extends from three nautical miles to 200 nautical miles off Alaska, and would close an area historically used by the Cook Inlet drift gillnet fleet, whose harvesters would then be limited to harvesting only in state waters.
On Nov. 10, the Pacific Legal Foundation filed Humbyrd v. Raimondo in U.S. District Court for the District of Alaska, suing the Interior Department and National Marine Fisheries Service on behalf of Wes Humbyrd, Robert Wolfe and Dan Anderson. The three men have fished commercially for decades in Cook Inlet’s federal and state waters. The lawsuit seeks a permanent injunction of the NOAA decision.
The Pacific Legal Foundation, which is representing the plaintiffs at no cost, said it is asking the federal court to restore the rights of the plaintiffs to earn an honest living without interference by an illegally formed agency and its equally unlawful regulations.
The North Pacific Fishery Management Council developed the fishery management plan for salmon in Cook Inlet under the Magnuson-Steven 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 salmon management plan. The U.S. Court of Appeals for the Ninth Circuit subsequently held that the Cook Inlet EEZ must be included in the salmon management plan to comply with the Magnuson-Stevens Act, which requires federal fisheries management councils to prepare FMPs 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.
Plaintiffs contend that the council was not properly appointed by the president or confirmed by the Senate, as required by the Constitution and therefore the adoption of Amendment 14 itself is unconstitutional.