Judge Urges Patience in Tribe’s Fight to Fish

     ANCHORAGE, Alaska (CN) — A federal judge refused an Alaska Native tribe’s request to enforce its rights to set up a subsistence fishery on the Kenai River before the end of the 2016 fishing season.
     John Starkey, attorney for the Ninilchik Traditional Council, argued Friday morning in front of U.S. District Judge John W. Sedwick that a violation of the tribe’s subsistence rights still exists and that any delay in opening the Kenai gillnet fishery, even until the Federal Subsistence Board’s special meeting July 26-28 where they will discuss the council’s emergency special action request to open the fishery, is “too valuable a period of fishing to wait a week.”
     He added, “We believe this is a very simple case,” explaining that according to federal regulations other consumptive uses must be eliminated first before subsistence uses are halted.
     “In the exact same waters where Ninilchik is not allowed to have a subsistence fishery, a fishery that the board has agreed is necessary to the members of the Ninilchik tribe, there is a sport fishery occurring on the exact area where they are concerned about spawning,” Starkey stated.
     He added that deference is due, but that “this is a bit of a trickier case in terms of deference.”
     Sedwick interrupted, “Simple or tricky — which is it?”
     Slightly flustered, Starkey elaborated that he meant simple in that deference applies to the case, but there are two agencies’ decisions on which deference could be focused. He said that deference is due to the Federal Subsistence Board decision to allow the gillnet fishery to occur on the Kenai and not the U.S. Fish and Wildlife Service’s decision to deny the tribe’s rights.
     He further described how anglers with boats will back into the middle of the river channel right over the Chinook salmon spawning areas and reel in species that the U.S. Fish and Wildlife Service says it is concerned the tribe will catch indiscriminately.
     “Four hundred early-run Chinook in the sport fishery, and tens of thousands of rainbow trout and Dolly varden have already been taken, but Ninilichik can’t take one,” Starkey said.
     Federal agencies say they have delayed opening the Kenai to the tribe’s gillnets over concerns of accidental catch of spawning Chinook salmon — and Rainbow trout and Dolly Varden over 18 inches — that could die before being tossed back.
     A gillnet is a fishing net hung vertically across the width of the river to trap passing fish by their gills. This type of fishing often raises concerns among conservationists since it can kill many species of fish indiscriminately, including those whose numbers are in decline and illegal to catch.
     The original complaint filed in October 2015 accused the government of violating the Administrative Procedure Act in relation to the subsistence board’s 2002 delegation of authority to in-season fishery manager Jeffry Anderson, a U.S. Fish and Wildlife Service field office supervisor, and his 2015 closure of the fishery and failure to implement the Kenai River gillnet fishery regulation.
     The tribe said Anderson’s decision violates Alaska Native subsistence rights, on the books since the passing of the Alaska Native Interest Lands Act in 1980.
     This past April, Sedwick dismissed many of the claims against the federal defendants and ruled that deciding on the 2015 opening to Kenai’s fishery was moot since “even if the council obtains this remedy it would not turn back the clock to allow the council’s members to harvest sufficient salmon to meet their subsistence needs for the 2015 fishing season.”
     Government attorney Rachel Roberts told Sedwick that the issue “is not that others are allowed to fish and Ninilchik is not,” noting that the tribe is allowed to fish with hook, bait and dip net.
     “They are allowed to fish like everyone else,” Roberts said. “It’s not as if they have no opportunity to have a fishery. The issue is the nonselective nature of the gillnet.”
     Roberts also pointed out that Ninilchik already has one gillnet operating on the Kasilof River, which is actually closer to where members live than a net on the Kenai.
     “Why would Kenai be any better than Kasilof on gillnet if opened immediately?” Roberts asked. “It’s farther away and it’s faster moving water.”
     Roberts argued that granting the council’s motion prior to the subsistence board’s meeting would be “prejudging the outcome” and “circumvent the process.” She also maintained that pulling all of the key players and members of the board together to meet within one month of Ninilchik’s request, given the July 4th holiday and typical summer vacation schedules, is actually pretty fast for the board and not intentionally delaying the process as the tribal members suggest.
     Judge Sedwick also questioned Starkey over the rush to decide at the hearing when the board is set to meet next week.
     Other than the aforementioned loss of valuable fishing time, Starkey blamed a lack of trust from past delayed decisions due in part to in-season manager Anderson’s influence on the board’s decisions.
     “There’s a lot of risk in going back to the board,” Starkey said. “Least of which is if board does not decide in favor then we’re back to the same problem at the end of the fishery and back in court.”
     In the end, Sedwick denied the tribe’s request and found that the tribe had not yet exhausted all its administrative remedies before the subsistence board. He rejected the tribe’s claims exhaustion is futile because the board has previously OK’d the use of the gillnet and may change its mind or that the board is biased in favor of Fish and Wildlife.
     “This argument is unpersuasive because the council has not shown that the subsistence board is so biased that it simply rubber stamps Fish and Wildlife Service’s actions,” Sedwick wrote, noting that the board had approved the gillnet over Fish and Wildlife objections.
     Sedwick acknowledged “the need for prompt action by the subsistence board,” but said the delay between the tribe’s asking the board to reconsider Anderson’s decision of June 27 and the meeting to reconsider taking place this week was not so unreasonable as to remove exhaustion requirements.
     The Kenai River fishery is located within the U.S. Fish and Wildlife Service’s Kenai National Wildlife Refuge. Anderson has the full authority to close or open fisheries based on fish numbers on the river.
     The Kenai is one of the most fished rivers in Alaska, with sport anglers, commercial operations and subsistence fishermen all vying for what is often — depending on the species and the year — a dwindling resource.

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