OPINION: A modest proposal for Alaska fisheries

At the behest of Alaska’s Sen. Ted Stevens and Congressman Don Young, in 1976 Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act, which authorizes the U.S. secretary of commerce to regulate commercial fishing in the Bering Sea and Gulf of Alaska seaward of Alaska coastal waters.

The Act established an 11-member North Pacific Fishery Management Council. While the Council purportedly is “advisory,” with only the rare exception, the secretary — in the guise of the National Oceanic and Atmospheric Administration — rubber-stamps whatever the Council recommends.

And there is the rub.

The Alaska Commissioner of Fish and Game has a permanent seat on the council. The secretary appoints five of the 10 other members from a list of three names for each seat that the governor of Alaska submits to the secretary. That enables the six Alaska members to control Council decision-making if they vote together.

The Council’s principal task is to decide how commercial fishing for pollock and other groundfish is conducted. Since catcher and catcher-processor vessels participating in the groundfish fishery earned $811 million in 2020, even minor regulatory restrictions can have significant adverse financial consequences for the companies, most headquartered in Seattle, that own the vessels.

For more than 30 years, the Council’s regulation of commercial fishing for groundfish has been the subject of constant controversy, because the nets that catch groundfish also incidentally catch salmon, halibut and crab. And in recent years, the controversy has intensified because salmon runs on the Yukon and Kuskokim Rivers — upon which residents of villages along those waterways depend for their sustenance — have crashed.

The biologists don’t know why. Maybe global warming. Maybe too many beavers damming too many spawning streams. Maybe too many salmon being caught by vessels participating in the groundfish fishery. Maybe for all those reasons. Maybe others.

But the only regulatory tool the Council has available to demonstrate that it is “doing something” to address the problem is to reduce the incidental catch of salmon by further restricting commercial fishing for groundfish. However, the companies whose vessels harvest groundfish say their vessels already are doing all they can to avoid catching salmon. And they argue that even if the groundfish fishery was eliminated, that would not significantly improve the situation on the Yukon and Kuskokwim Rivers.

Who knows where the truth lies?

In 2021, Alaska Gov. Mike Dunleavy’s response was to create yet another task force whose members spent a year studying the problem and then proposed that the Council limit the number of chum salmon that can be taken incidentally in the groundfish fishery and require fishing for groundfish to stop when the limit is reached. While that proposal was hardly draconian, the Council rejected it.

Last summer, during the special election to succeed the late Alaska Congressman Don Young, then-candidate Mary Peltola made reducing salmon bycatch in the groundfish fishery a central part of her “Fish, Family, Freedom” election campaign.

After she won the special election, Congresswoman Peltola’s solution to the Council’s refusal to recommend that the secretary of commerce more aggressively restrict groundfish fishing in order to reduce the incidental take of salmon was to arrange with Democratic Congressman Jared Huffman, the chairman of the House Subcommittee on Water, Oceans and Wildlife to which she had been appointed, to include in H.R. 4690, his bill to amend the Magnuson-Stevens Act, a provision whose enactment would have required the secretary of commerce to appoint to the North Pacific Fishery Management Council two additional members who would be “representatives of Indian Tribes in Alaska.”

Prior to the party-line vote to include her provision in the bill, Oregon Congressman Cliff Bentz explained to the subcommittee’s newest member that adding two “representatives of Indian Tribes in Alaska” to the Council was a nonsense idea that the senators who represent Oregon and Washington would never allow to be enacted into law. But Congresswoman Peltola was not dissuaded.

In January, H.R. 4690 died when the 117th Congress adjourned. And if during the 118th Congress Congressman Huffman reintroduces the bill in the Republican-controlled House of Representatives, the odds that the bill will be considered are goose-egg, nada, zero.

But if enlarging the Council’s membership by adding two “representatives of Indian Tribes in Alaska” is the nonsense idea Congressman Bentz said it was, a more realistic step in the proper direction would be for the secretary of commerce to stop appointing to the Council individuals who the governor of Alaska has recommended for appointment because of their financial conflicts of interest.

Today, on the recommendation of Gov. Dunleavy, members of the Council include the vice president of the Pacific Seafood Processors Association, whose membership includes Trident Seafoods, Unisea and the other major companies whose revenue depends on catching as many metric tons of groundfish as the Council can be persuaded to authorize their vessels to catch. And two other members are employees of companies participating in the Community Development Quota Program that own equity interests in, and depend on revenue from, catcher and catcher-processor vessels that harvest groundfish.

Gov. Dunleavy is not alone — on the recommendation of Washington Gov. Jay Inslee, the secretary has also appointed to the Council the director of government affairs for the Arctic Storm Management Group, a company headquartered in Seattle that operates two catcher-processor vessels that harvest groundfish.

Prohibiting the secretary of commerce from appointing individuals to the Council who have obvious financial conflicts of interest would require Congress to amend the Magnuson-Stevens Act. Given the toxic partisan environment on Capitol Hill these days that is not going to happen. And nothing can be done about Gov. Inslee.

But the Alaska Legislature could enact a statute that prohibits the governor of Alaska from sending the secretary of commerce for appointment to the Council the names of individuals who have obvious financial conflicts of interest.

Were the Legislature to do that, the members of the “Council Family,” as the Council members and staff, NOAA and Fish and Game employees, and fishing company lobbyists who during the day sit for hours on end through Council meetings — and, in the evening, party together — call themselves, would be apoplectic. But in villages from Emmonak and Tuntutuliak up the Yukon and Kuskokwim Rivers to the Canadian border and beyond, the Legislature doing that would be celebrated as a long-needed reform of an overly insular and corrupt regulatory system.

And who knows? Upon subsequent reflection, even Congresswoman Peltola might think it’s a good idea.

Donald Craig Mitchell is an Anchorage attorney, author of the two books on the Alaska Native Claims Settlement Act and “Tribal Sovereignty in Alaska: How It Happened, What It Means.” He was also a former vice president and general counsel for the Alaska Federation of Natives.

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