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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cook Inlet Fisherman’s Fund v. State of Alaska, Department of Fish and Game and Alaska Board of Fisheries (8/12/2022) sp-7611
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
COOK INLET FISHERMAN'S )
FUND, ) Supreme Court No. S-17955
)
Appellant,
) Superior Court No. 3KN-19-00641 CI
)
v.
) O P I N I O N
)
STATE OF ALASKA,
) No. 7611 - August 12, 2022
DEPARTMENT OF FISH AND )
GAME and ALASKA BOARD OF )
FISHERIES, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Jason M. Gist, Judge.
Appearances: 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.]
MAASSEN, Justice.
I. INTRODUCTION
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
----------------------- Page 2-----------------------
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.
II. FACTS AND PROCEEDINGS
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
1 The Board is more
Alaska's salmon fisheries on the sustained yield principle."
specifically tasked with "allocat[ing]fisheryresourcesamong personal use, sport, guided
1 5 Alaska Administrative Code (AAC) 39.223(a) (2021); see also
AS 16.05.251(h) (requiring the Board to "adopt by regulation a policy for the
management of mixed stock fisheries . . . in a manner that is consistent with sustained
yield of wild fish stocks"); Alaska Const. art. VIII, § 4 (requiring that "[f]ish . . . and all
other replenishable resources . . . shall be . . . maintained on the sustained yield
principle").
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----------------------- Page 3-----------------------
2
sport, and commercial fisheries." Fish and Game pursues its mandate through various
3
management plans.
Under the Kenai River Late-Run King Salmon Management Plan
4 if the projected in-river return of late-run king salmon
in effect at the time relevant here,
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 Gameannounced 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 mid-
point of the large fish sustainable escapement goal (SEG) of
2 AS 16.05.251(e).
3 See, e.g., 5 AAC 21.353-.377 (2021).
4 Former 5 AAC 21.359(e) (am. 6/8/2017).
5 Id . The regulation currently permits the Commissioner to restrict bait "[i]n
order to achieve the optimal escapement goal." 5 AAC 21.359(e) (2021) (emphasis
added).
6 Former 5 AAC 21.359(e)(3) (am. 6/8/2017).
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----------------------- Page 4-----------------------
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
7
goal of 13,500-27,000 fish.
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
7 From 2017 to 2020 the Kenai River king escapement goal was 13,500-
27,000 salmon. Former 5 AAC21.359(b) (am. 6/18/2017). In 2020 the escapement goal
was changed to 15,000-30,000 king salmon. 5 AAC 21.359(b) (2021).
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----------------------- Page 5-----------------------
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 ruleswere"[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
8 CIFF also argued that "[f]ederal law requires
with various Fish and Game regulations.
that fisheries be managed in accord with 10 national standards for the conservation and
8 CIFF requested the following relief:
For temporary, preliminary, and permanent injunctions
directing [Fish and Game] (i) to cease and desist imposing
arbitrary and unreasonable emergency orders for allocative
purposes, (ii) to use the applicable gear specifications such as
5 AAC 21.331, (iii) to use the weekly fishing periods set
forth in 5 AAC 21.320(a), (iv) to allow additional authorized
openings with reasonable advance notice, (v) to manage the
salmon fisheries in Upper Cook Inlet for all escapement
goals, as set forth in 5 AAC 21.363(e), not just those for
Kings and Coho, (vi) for drift and set net gear to fish the
same time periods unless the set gillnets are closed for King
salmon under 5 AAC 21.359(d), and (vii) to require that all
East Side restrictions under 5 AAC 21.353 be in the
Expanded Kenai and Expanded Kasilof Sections to stop [Fish
and Game] from restricting to less area.
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----------------------- Page 6-----------------------
9
management of fisheries" as outlined in the Magnuson-Stevens Act and that the State
had "strayed impermissibly far from the national standards." CIFF asked the court to
10 The superior court denied
require the Board to repeal and rewrite several regulations.
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 "[d]iscovery 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
9 16 U.S.C. §§ 1801-1891d.
10 CIFF's requests for court-ordered regulatory change included the following:
"to suspend and later repeal, . . . 5 AAC 21.310(b)(2)(C)(i), (ii), & (iii) and 5 AAC
21.353(e)"; to "replace 310(b)(2)(C) with: 'the upper set gillnet f ishery will close by
emergency order when the escapement goal for Kenai and Kasilof sockeye is assured and
Coho become the predominant species in the harvest' "; to "replace 353(e) with '(e)
when the ESSN fishery in the Kenai, Kasilof, and East Forelands closes, drifting is
closed within 5 nautical miles of the Kenai Peninsula shoreline' "; "to suspend and later
repeal 5 AAC 21.360(c)(1), (c)(2), and (c)(3)"; "to add to line 5 of 5 AAC 21.365(c)(3)
just before the first ';' 'for the conservation of Kenai Sockeye only' and delete the
remainder of (c)(3)"; and "to suspend and later repeal 5 AAC 21.359(e) entirely."
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----------------------- Page 7-----------------------
11
Fund v. State, Department of Fish and Game (CIFF 2015 ). 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 becauseit followed theapplicablemanagement 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 "contain[ed] 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
12 (United Cook Inlet) required the
Association v. National Marine Fisheries Service
11 357 P.3d 789, 796-97 (Alaska 2015) (in case challenging Fish and Game
Commissioner's fisheries managementdecisions,holding thatbasisforresolving dispute
was "[t]he management decisions themselves - the emergency orders, which included
the reasons for them").
12 837 F.3d 1055 (9th Cir. 2016).
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----------------------- Page 8-----------------------
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 and Game] to follow such federal requirements
in managing the Cook Inlet fishery in 2019 and 2020, as the [National Marine Fisheries
Service] had yet to develop the [federal management plan] for that fishery."
Next the court found that our decision in CIFF 2015 controlled both the
discovery issue and whether to grant summary judgment. The court found CIFF was not
entitled to additional discovery beyond the administrative record already in existence
and concluded that summary judgment was appropriate.
Finally, the court denied CIFF's motion to amend its complaint. The State
moved for attorney's fees, which the superior court granted.
CIFF appeals.
III. STANDARD OF REVIEW
"Questions of law are reviewed de novo, 'adopting the rule of law that is
-8- 7611
----------------------- Page 9-----------------------
13
most persuasive in light of precedent, reason, and policy.' " "We review the superior
14
court's rulings on discovery . . . for abuse of discretion."
"We will find an abuse of
15 "Wereviewgrants
discretion when thedecision on reviewismanifestly unreasonable."
16 We will affirm a grant of summary judgment "if the
of summary judgment de novo."
record presents no genuine issue of material fact and if the movant is entitled to judgment
17
as a matter of law."
IV. DISCUSSION
A. Alaska's Fishery Management Was Not Subject To National
Standards During The Period Relevant To This Appeal.
1. The Alaska Statehood Act does not impose specific ongoing
federal requirements on fishery management in state waters.
CIFF's primary argument on appeal is that Alaska's salmon fisheries -
including Cook Inlet - "must be managed in the broad national interest," and federal
18
laws therefore apply in state waters. CIFF argues that "under the Alaska Statehood Act
13 Smith v. State, 282 P.3d 300, 303 (Alaska 2012) (quoting Kohlhaas v. State,
Off. of Lieutenant Governor, 147 P.3d 714, 717 (Alaska 2006)).
14 Punches v. McCarrey Glen Apartments, LLC, 480 P.3d 612, 619 (Alaska
2021) (citation omitted).
15 Id. (quoting Sykes v. Lawless, 474 P.3d 636, 646 (Alaska 2020)).
16 Creekside Ltd. P'ship v. Alaska Hous. Fin. Corp., 482 P.3d 377, 382
(Alaska 2021) (quoting Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516
(Alaska 2014)).
17 Id. (quoting Hagen v. Strobel, 353 P.3d 799, 802 (Alaska 2015)).
18 CIFF also argues that state fishery laws are preempted by federal law. But
a federal preemption argument was not raised in the superior court, and it is therefore
forfeited. See Brandon v. Corr. Corp. of Am. , 28 P.3d 269, 280 (Alaska 2001) ("A party
(continued...)
-9- 7611
----------------------- Page 10-----------------------
Congress did not give Alaska fish resource management authority." CIFF contends that
pursuant to the Alaska Statehood Act, the State must manage fish resources in the broad
national interest, which CIFF argues requires the State to follow national standards. But
this argument has no basis in the historical record.
The administration of Alaska's fish and wildlife resources was a task of the
19 But under section 6(e) of the Alaska Statehood
federal government before statehood.
Act, the State of Alaska was to receive control of fisheries upon certification that the
AlaskaLegislaturehad "madeadequateprovision for" statemanagement oftheresource:
All real and personal property of the United States situated in
the Territory of Alaska which is specifically used for the sole
purpose of conservation and protection of the fisheries and
wildlife of Alaska . . . shall be transferred and conveyed to
the State of Alaska by the appropriate Federal agency:
Provided,That theadministrationandmanagement ofthefish
and wildlife resources of Alaska shall be retained by the
Federal Government under existing laws until . . . the
Secretary of the Interior certifies to the Congress that the
Alaska State Legislature has made adequate provision for the
administration, management, and conservation of said
resources in the broad national interest.[20]
Congress passed the Alaska Statehood Act, including section 6(e), on July 7, 1958,21 and
18 (...continued)
may not raise an issue for the first time on appeal.").
19 104 CONG. REC. 9,488 (1958).
20 Alaska Statehood Act, Pub. L. No. 85-508, § 6(e), 72 Stat. 339, 340-41
(1958).
21 Id.
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Alaska was admitted to the Union as a state on January 3, 1959. 22
In order to meet the section 6(e) requirement and receive management
authority over Alaska fisheries, the Alaska Legislature in April 1959 enacted House Bill
23 The bill contained no substantive fishery rules or regulations - aside from
201.
provisions governing licensing and fees - but it did create both the Board of Fish and
Game and the position of Commissioner, and it gave the Board the authority to, among
other things, "establish[] open and closed seasons and areas for fish and game,"
"establish[] the means and methods employed in the pursuit, capture, and transport of
fish and game," and "investigat[e] and determin[e] the extent and effect of predation and
competition among fish and game in Alaska and exercise such control measures as are
deemed necessary to the resources of the State."24
House Bill 201 was sent to then-Secretary of the Interior Fred Seaton, who,
upon reviewing the legislation, "certif[ied] [to Congress] that the Alaska State
Legislature ha[d] made adequate provision for the administration, management, and
25
conservation of the fish and wildlife resources of Alaska in the broad national interest."
The transfer of management from the federal government to the State therefore took
place, effective January 1, 1960.26
22 Proclamation No. 3269, 24 Fed. Reg. 81 (Jan. 3, 1959).
23 Ch. 94, art. I, § 1 - art. IV, § 3, SLA 1959.
24 Ch. 94, art. I, § 6, SLA 1959.
25 Letter from Fred A. Seaton, Secretary of the Interior, to Sam Rayburn,
Speaker of the House (Apr. 27, 1959); see also Press Release, Sec'y of the Interior,
Transfer of Fish and Wildlife Management to Alaska Approved (Apr. 27, 1959).
26 Press Release, Sec'y of the Interior, Transfer of Fish and Wildlife
(continued...)
-11- 7611
----------------------- Page 12-----------------------
Secretary Seaton's certification meant that Alaska, having satisfied the
statutory preconditions, received the promised control of its fisheries. That transfer of
authority did not, as CIFF appears to argue, include a perpetual state obligation to
manage salmon under a national standard.
Our conclusion is supported not only by the plain language of the Alaska
Statehood Act but also by legislative history, which shows that Congress did not intend
to impose ongoing specific burdens on state management of fisheries, but only to require
that Alaska demonstrate the ability to perform that management function.
The language requiring the Alaska State Legislature to make "adequate
provision for the administration, management, and conservation of said resources in the
broad national interest" was introduced by two representatives from the State of
27 Representative Pelly explained that the
Washington, Thomas Pelly and Jack Westland.
languagewas providedby conservation groups and wasdesigned to meet their objections
28 He said that he "favor[ed] the principle of giving the
to the Alaska Statehood Act.
people of Alaska management over their affairs and administration of their resources,"
but "in transferring the management to the Alaskans," he wanted "reasonable assurance
of safeguards to protect the public interest."29 Representative Pelly explained that "[t]he
amendment simply would assure State management and regulation that will uphold and
conform to the new proposed constitution of the State of Alaska which provides for
26 (...continued)
Management to Alaska Approved (Apr. 27, 1959).
27 104 CONG. REC. 9,410-11, 9,747-50 (1958).
28 Id. at 9,410 (statement of Representative Pelly).
29 Id. at 9,411.
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----------------------- Page 13-----------------------
common use of natural resources." 30
Representative Westland was concerned that at the time of statehood there
was "no competent fisheries organization" in Alaska, but he professed a belief that
"[g]iven time, as a State, Alaska could doubtless develop an effective fish and wildlife
31 He believed that "present conditions require [that] the administration
organization."
of the fish and wildlife resources of Alaska be retained by the Federal Government until
it can clearly be shown that the Alaska State Legislature has made adequate provision
for the administration, management, and conservation of these resources in the broad
national interest."32 But Representative Westland made clear that the proposed language
did not impose ongoing burdens: "Let me emphasize that this amendment sets up no bar
to future control of these resources by the State of Alaska."33
This legislative history confirms Congress's concern about Alaska's lack
of its own fisheries management scheme at the time of statehood, but it fails to show any
congressional intent that national standards would continue to control once the State
effectively took responsibility. Congress's express concerns were met when the Alaska
Legislature passed House Bill 201 structuring the Department of Fish and Game and
Secretary Seaton certified that the Statehood Act was satisfied: Alaska had met the Act's
threshold for asserting state control of fisheries management. The State had no ongoing
30 Id. at 9,750. Representative Pelly was referencing article VIII, section 15
of the Alaska Constitution, which read at the time: "No exclusive right or special
privilege of fishery shall be created or authorized in the natural waters of the State."
Alaska Const. art. VIII, § 15 (amended 1972).
31 104 CONG. REC. 9,748 (1958) (statement of Representative Westland).
32 Id.
33 Id.
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----------------------- Page 14-----------------------
commitment under the Alaska Statehood Act to manage that resource in the "broad
national interest." We reject CIFF's argument that the "broad national interest" governs
Alaska's fisheries management decisions.
2. The State was not required to follow national standards in the
federal waters of Cook Inlet in 2019 and 2020.
Finding that "[a] national program for the conservation and management
of the fishery resources of the United States is necessary to prevent overfishing, to
rebuild overfished stocks, to insure conservation, to facilitate long-term protection of
essential fish habitats,and torealizethefull potential of the Nation's fishery resources,"34
Congress passed the Magnuson-Stevens Fishery Conservation and Management Act in
35
1976. The Magnuson-Stevens Act extended federal jurisdiction over ocean waters to
36
200 miles from shore, an area labeled the "exclusive economic zone." But states
retained jurisdiction over the first three miles from shore, and Congress explained that
aside from certain specified exceptions, nothing in the act "shall be construed as
extending or diminishing the jurisdiction or authority of any State within its
boundaries."37
The Magnuson-Stevens Act established eight Regional Fishery
Management Councils, with the North Pacific Fishery Management Council responsible
34 16 U.S.C. § 1801(a)(6).
35 Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265,
90 Stat. 331 (1976) (codified as amended at 16 U.S.C. §§ 1801-1891d).
36 16 U.S.C. § 1801(b)(1); Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar.
10, 1983).
37 16 U.S.C. § 1856(a)(1).
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----------------------- Page 15-----------------------
38
for managing federal waters off the coast of Alaska. The Act requires each council to
39
"prepare and submit . . . a fishery management plan,"
which must "contain the
conservation and management measures, applicable to . . . fishing . . . vessels . . . which
40 41
among other requirements.
are . . . consistent with the national standards,"
38 16 U.S.C. § 1852(a)(1)(G).
39 16 U.S.C. § 1852(h)(1).
40 16 U.S.C. § 1853(a)(1)(C). The 10 national standards are:
(1) Conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the
optimum yield from each fishery for the United States fishing
industry.
(2) Conservation and management measures shall be based
upon the best scientific information available.
(3) To the extent practicable, an individual stock of fish shall
be managed as a unit throughout its range, and interrelated
stocks of fish shall be managed as a unit or in close
coordination.
(4) Conservation and management measures shall not
discriminate between residents of different States. If it
becomes necessary to allocate or assign fishing privileges
among various United States fishermen, such allocation shall
be (A) fair and equitable to all such fishermen; (B)
reasonably calculated to promote conservation; and (C)
carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of
such privileges.
(5) Conservation and management measures shall, where
practicable, consider efficiency in the utilization of fishery
resources; except that no such measure shall have economic
(continued...)
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In 1979 the North Pacific Fishery Management Council created the first
42
fishery management plan for Alaska. The Alaska Fishery Management Plan divided
Alaska waters into the West Area and the East Area, with the dividing line at Cape
40 (...continued)
allocation as its sole purpose.
(6) Conservation and management measures shall take into
account and allow for variations among, and contingencies
in, fisheries, fishery resources, and catches.
(7) Conservation and management measures shall, where
practicable, minimize costs and avoid unnecessary
duplication.
(8) Conservation and management measures shall, consistent
with the conservation requirements of this chapter (including
the prevention of overfishing and rebuilding of overfished
stocks), take into account the importance of fishery resources
to fishing communities by utilizing economic and social data
that meet the requirements of paragraph (2), in order to
(A) provide for the sustained participation of such
communities, and (B) to the extent practicable, minimize
adverse economic impacts on such communities.
(9) Conservation and management measures shall, to the
extent practicable, (A) minimize bycatch and (B) to the extent
bycatch cannot be avoided, minimize the mortality of such
bycatch.
(10) Conservation and management measures shall, to the
extent practicable, promote the safety of human life at sea.
16 U.S.C. § 1851(a).
41 16 U.S.C. § 1853(a).
42 Fishery Management Plan for the High Seas Salmon; Fishery Off the Coast
of Alaska, 44 Fed. Reg. 33,250 (June 8, 1979) (to be codified at 50 C.F.R. pt. 674).
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----------------------- Page 17-----------------------
43
Suckling, approximately 75 miles southeast of Cordova. The West Area was closed to
commercial fishing aside from three "historical fisheries managed by the State," which
included Cook Inlet. 44
In 2012 the North Pacific Fishery Management Council adopted
Amendment 12, which removed Cook Inlet from the West Area and exempted Cook
45 The Council believed that "removing the net
Inlet from the fishery management plan.
fishing areas and the sport fishery from the West Area allows the State to manage Alaska
salmon stocks and directed fishing for those stocks as seamlessly as practicable
throughout their range."46
In 2013 the United Cook Inlet Drift Association and CIFF filed suit in
federal court challenging the Council's decision to remove Cook Inlet from the fishery
management plan as contrary to the requirement that a fishery management plan be
prepared "for each fishery under [a council's] authority that requires conservation and
47 In 2016, in United Cook Inlet, the Ninth Circuit held that the
management."
Magnuson-Stevens Act did not permit the National Marine Fisheries Service (NMFS)
to remove Cook Inlet from the fishery management plan:
The Magnuson-Stevens Act unambiguously requires a
Council to create [a fishery management plan] for each
43 Id. at 33,255.
44 Id. at 33,267.
45 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Salmon, 77
Fed. Reg. 75,570 (Dec. 21, 2012) (to be codified at 50 C.F.R. pt. 679).
46 Id.
47 United Cook Inlet Drift Ass'n v. Nat'l Marine Fisheries Serv., 837 F.3d
1055, 1060-61 (9th Cir. 2016) (quoting 16 U.S.C. § 1852(h)(1)).
-17- 7611
----------------------- Page 18-----------------------
fishery under its authority that requires conservation and
management. The Act allows delegation to a state under [a
fishery management plan], but does not excuse the obligation
to adopt [a fishery management plan] when a Council opts for
state management. Amendment 12 is therefore contrary to
law to the extent it removes Cook Inlet from the [fishery
management plan]. [48]
CIFF argues that the Ninth Circuit's ruling in United Cook Inlet requires
the State to manage salmon resources in federal waters under the ten national standards
set out in the Magnuson-Stevens Act. The superior court rejected this argument,
determining that there was no fishery management plan for federal waters in Cook Inlet
in place during 2019 and 2020 and therefore the State could not have been bound by
federal standards:
While the [Ninth Circuit] made clear that the NMFS must
ultimately include the Cook Inlet fishery into [a fishery
management plan], and that the [fishery management plan]
must follow certain federal standards, the parameters of that
[fishery management plan] ha[ve] not yet been finalized.
Thus, even if this court were to conclude that the fishery at
issue here should be governed by a [fishery management
plan] and the corresponding federal standards, this court
48 Id. at 1065. In response to the Ninth Circuit's decision, on November 3,
2021 the NMFS issued Amendment 14 to the Alaska Fishery Management Plan,
incorporating Cook Inlet into the West Area Fishery Management Plan, effectively
prohibiting commercial fishing in the Cook Inlet exclusive economic zone. Fisheries of
the Exclusive Economic Zone Off Alaska; Cook Inlet Salmon; Amendment 14, 86 Fed.
Reg. 60,568-88 (Nov. 3, 2021) (to be codified at 50 C.F.R. pt. 679). The U.S. District
Court for the District of Alaska recently vacated Amendment 14 on grounds that it
arbitrarily excluded the recreational salmon fishery from its scope, violated the
Magnuson-Stevens Act, and violated a number of the national standards. United Cook
Inlet Drift Ass'n v. Nat'l Marine Fisheries Serv. , Nos. 3:21-cv-00255-JMK, 3:21-cv-
00247-JMK Consol., 2022 WL 2222879, at *6-16 (D. Alaska June 21, 2022).
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could not have required the Board and [Fish and Game] to
follow such federal requirements in managing the Cook Inlet
fishery in 2019 and 2020, as the NMFS had yet to develop
the [fishery management plan] for that fishery.
Under the Magnuson-Stevens Act only a "fishery management plan
prepared, and any regulation promulgated to implement any such plan," must conform
49 If a fishery management plan delegated fishery management to
to national standards.
a state, a state's management could be subject to the national standards, as CIFF argues.
But during 2019 and 2020, the years at issue here, Alaska had not been delegated the
authority to manage the federal waters of Cook Inlet; the NMFS had exempted Cook
Inlet from the fishery management plan.50 Alaska was not bound by the Magnuson-
Stevens Act's national standards in federal waters in 2019 or 2020 because there were
no federal standards in place at that time.51 The superior court properly granted summary
judgment on this issue.
B. The Superior Court Did Not Abuse Its Discretion By Limiting The
Evidence To The Administrative Record.
CIFF argues that summary judgment should be reversed because the
superior court abused its discretion by limiting the evidence to the administrative record
49 16 U.S.C. § 1851(a).
50 United Cook Inlet, 837 F.3d at 1060-61.
51 CIFF makes a variety of claims against specific management decisions,
including those imposing set net restrictions, setting openings and closures, and
"abandoning" the 90% maximum sustained yield management standard. We do not
address these arguments because either they are predicated on CIFF's argument that
federal standards apply, or CIFF has not cited the challenged regulations or an analytical
framework for resolving the issue, or both. See Casciola v. F.S. Air Serv., Inc., 120 P.3d
1059, 1062 (Alaska 2005) (explaining that this court does "not consider arguments that
are inadequately briefed").
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and not allowing further discovery. Given its belief that "salmon fisheries in Cook Inlet
are a National resource that must be managed in the broad National interest," CIFF
argues that discovery would have revealed that "the State manipulates management of
the salmon fisheries adverse to the broad national interest" and that it "does so to favor
sport and guided fishing over Upper Cook Inlet commercial fishermen."
As we explain above, the State was not bound by national standards or
federal lawwhen managing Cook Inlet, and thus CIFF's beliefthatdiscovery would have
revealedmanipulativemanagement"adverseto thebroad nationalinterest"isunavailing.
To the extent the remainder of CIFF's claims are predicated on a violation of state law,
the administrative record provides the facts material to the dispute. 52
In a similar case in 2015, CIFF challenged the Fish and Game
Commissioner's decision to close the set net fishery while also increasing the drift net
fishery time.53 CIFF argued that it "must be able to conduct discovery to determine the
basis for the Department's gross deviation from [the] requirements of . . . management
plans and to determine how those deviations were arrived at and who influenced the
Department to deviate from them."54 In deciding the case, "we emphasize[d] that each
and every claim and request for relief set forth in CIFF's . . . complaint was predicated
on the allegation the Commissioner's actions violated the Board's management plans."55
We held that CIFF was not entitled to discovery because there were no facts outside the
52 See CIFF 2015, 357 P.3d 789, 797-98 (Alaska 2015).
53 Id. at 791-92.
54 Id. at 797 (alterations in original) (quoting CIFF's superior court hearing
argument).
55 Id. at 798.
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administrative record that were actually material to its claims:
The management decisions themselves - the emergency
orders, which included the reasons for them - were
compiled and presented to the superior court and are the
undisputed material facts key to resolving whether, in light of
the 2013 king and sockeye runs, the Commissioner's
discretionary actions were authorized by the Board's
management plans. Accordingly whatever CIFF would have
discovered from deposing "past and current . . . department
employees"wouldnot havebeen"essentialtojustify"CIFF's
summary judgment opposition. [56]
We explained that "because the Commissioner's discretionary actions were lawful, there
was no need for discovery about who allegedly pressured her to undertake allegedly
unlawful actions."57
To determine whether discovery beyond the administrative record would
have been appropriate, we look to CIFF's original complaint.58 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." CIFF also alleged that the Board "adopted regulations in 2017 that
change historic gear, season, mixed stock pairings, and other gillnet provisions, and
56 Id. at 797-98 (alteration in original) (first quoting CIFF superior court
argument; and then quoting Alaska R. Civ. P. 56(f)).
57 Id. at 798.
58 CIFF does not directly challenge the superior court's denial of its motion
to file an amended complaint, so we do not consider it. See Hagen v. Strobel, 353 P.3d
799, 805 (Alaska 2015) (holding that appellant waived challenge by failing to "cite
Alaska Civil Rule 15 or any other legal authority regarding a superior court's discretion
in considering a motion for leave to amend a complaint").
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directed or allow [Fish and Game] to impose the new restrictions" without "science-
based justification and against the recommendations of experienced [Fish and Game]
commercial fishing division personnel." CIFF alleged 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."
As in CIFF 2015 , CIFF's claims in this case are based on violations of state
law, alleging that the Commissioner violated the management plans and that the Board
adopted invalid regulations. And also as in CIFF 2015 , "[t]he management decisions
themselves . . . were compiled and presented to the superior court and are the undisputed
material facts key to resolving whether . . . the Commissioner's discretionary actions
59 And "whatever CIFF would have
were authorized by the Board's management plans."
discovered from deposing . . . department employees[] would not have been 'essential
60
to justify' CIFF's summary judgment opposition."
We do not mean to imply that discovery must always be limited to the
administrative record. But while discovery beyond the administrative record may be
appropriate in some cases,61 CIFF has failed to demonstrate in this appeal that limiting
59 CIFF 2015, 357 P.3d at 797-98.
60 Id. at 798 (quoting Alaska R. Civ. P. 56(f)).
61 Cf. id. (noting that CIFF failed to sue Fish and Game Commissioner in
personal capacity, which would have made relevant - and by implication discoverable
- information whether the Commissioner acted "in bad faith, with malice, or with
corrupt motives").
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discovery to the administrative record was an abuse of discretion. 62
CIFF argues that "[d]iscovery has been allowed in other cases against the
63
as a case
Department," and cites Johnson v. Alaska State Department of Fish & Game
in which " 'substantial discovery' was allowed." In Johnson a group of Alaska Native
surf fishers alleged that Fish and Game discriminated against them on the basis of race
by closing the surf fishery by emergency order.64 One surf fisherman filed a complaint
with the Alaska Human Rights Commission, where the "substantial discovery"
mentioned in our opinion occurred; discovery was not at issue on appeal.65 Johnson
therefore has no bearing on this case. Because the superior court's discovery order was
not an abuse of discretion, and CIFF's arguments on the merits are unavailing, we affirm
the superior court's grant of summary judgment in favor of the State.
C. CIFF Forfeited Its Argument That The Alaska-Resident-Only
Personal Use Fisheries Are Unconstitutional.
CIFF argues that the "Alaska-resident-only personal use fishery" is
unconstitutional as a violation of the federal Commerce Clause,66 but it does not identify
the particular statute or regulation it is challenging. CIFF did not challenge the Alaska-
resident-only personal use fishery in its original complaint, and we have searched the
62 See Punches v. McCarrey Glen Apartments, LLC, 480 P.3d 612, 619
(Alaska 2021) ("We will find an abuse of discretion when the decision on review is
manifestly unreasonable." (quoting Sykes v. Lawless, 474 P.3d 636, 646 (Alaska 2020))).
63 836 P.2d 896 (Alaska 1991).
64 Id. at 903.
65 Id. at 903-04
66 U.S. Const. art. I, § 8.
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67
trial court record in vain for a citation to the law it claims is unconstitutional.
68
In its reply brief, CIFF asserts that it cited Hughes v. Oklahoma, a
Commerce Clause case, multiple times and challenged the legality of the Alaska-
69 Buttherecord reveals only
resident-only personal use fishery before the superior court.
one instance prior to the grant of summary judgment - at the May 2020 oral argument
- when CIFF argued that the resident-only personal use fishery was unconstitutional
under Hughes :
[T]he board, at the request and the encouragement of the
department, appears to have created yet another illegal
fishery, Alaska resident-only. We have pointed out before
the U.S. Supreme Court case from 1979, Hughes v.
Oklahoma. It is simply a violation of the United States
Constitution to create a resident-only limitation on a fishery.
Given the serious nature of CIFF's assertion - that Alaska has created an
unconstitutional fishery - we do not find this passing reference sufficient to hold that
CIFF preserved the argument. "We have repeatedly held that '[i]ssues not properly
67 We assume that CIFF is challenging 5 AAC 77.540. In its opening brief
CIFF refers once, without citation, to "[t]he bag limits for the Alaska-resident-only
personal use fisheries" and describes limits that are found in 5 AAC 77.540.
68 441 U.S. 322 (1979) (holding Oklahoma statute forbidding out-of-state
transportation of minnows unconstitutional under Commerce Clause).
69 Thefirst timeCIFFbroughttheAlaska-personal-usefisherytotheattention
of the superior court was in its opposition to summary judgment, when it listed "Is the
Alaska-resident only personal use dip net fishery legal?" as an issue of material fact.
This vague reference was insufficient to put the court or the State on notice that CIFF
was asserting a claim under the Commerce Clause. CIFF also asserts that "[t]his issue
was raised in the amended complaint that CIFF lodged with the trial court with a timely
motion for leave to amend." But as discussed supra note 58, the superior court denied
CIFF's motion to amend its complaint, a ruling CIFF does not challenge on appeal.
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----------------------- Page 25-----------------------
70
raised or briefed [before the trial court] are not properly before this court on appeal.' "
CIFF did not challenge the constitutionality of the fisheries in its complaint, and it never
substantively briefed or argued before the superior court that Alaska's resident-only
personal use fisheries violate the Commerce Clause. The argument was not preserved
71
for appellate review.
V. CONCLUSION
We AFFIRM the judgment of the superior court.
70 Burts v. Burts , 266 P.3d 337, 344 (Alaska 2011) (first alteration in original)
(quoting Hagans, Brown &Gibbs v. First Nat'l Bank of Anchorage , 783 P.2d 1164, 1166
n.2 (Alaska 1989)).
71 CIFF also forfeited its argument that "[t]he State has a public trust
responsibility to manage salmon in Upper Cook Inlet for the benefit of all the people in
this Nation - i.e., the broad national interest." CIFF first mentioned the public trust
doctrine when opposing the State's motion for entry of final judgment, that is, after the
court had ruled for the State on all of CIFF's claims. See Stadnicky v. Southpark Terrace
Homeowner's Ass'n, 939 P.2d 403, 405 (Alaska 1997) (holding that "[a]n issue raised
for the first time in a motion for reconsideration is not timely" and therefore would not
be "properly before this court on appeal"); Hymes v. DeRamus, 222 P.3d 874, 889
(Alaska 2010) (holding that "a party may not raise an issue for the first time on appeal"
(quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001))).
CIFFalso asks thattheattorney's fees award bereversed and remanded, but
its only argument is that "[t]he State should not have prevailed, certainly not on summary
judgment." Because we affirm the grant of summary judgment, we do not disturb the
attorney's fees award.
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