ANCHORAGE (CN) – An Alaska Native tribe says the federal government dragged its heels in setting up subsistence fisheries and closed the Kenai River to all but Chinook salmon sport fishermen, causing the tribe to all but miss its federally mandated take.
The Ninilchik Traditional Council filed its suit in Alaska Federal Court against representatives of the Federal Subsistence Board, the U.S. Department of Interior and the U.S. Department of Agriculture on Oct. 23. The council contends that authorities overseeing the state subsistence fishery failed to provide an opportunity for their members to harvest their annual allotted quantity and species of salmon provide for by law.
According to the council’s complaint, The Federal Subsistence Board regulates federal subsistence under the purview of the Interior Department and is composed of regional directors from U.S. Fish and Wildlife Service, National Park Service, Bureau of Land Management, Bureau of Indian Affairs, the U.S. Forest Service, and three public members appointed by the secretaries of the Interior and the USDA. Two of those represent rural subsistence users and one is the board chairman.
The council says the 2015 closure of the newly authorized subsistence gillnet fishery on the Kenai River violated the Alaska National Interest Land Conservation Act The act gives priority to rural residents including designated Alaska Native tribes, subsistence opportunities on federal lands and waters over that of commercial and sport fishing interests.
Up until the 2015 season, council members could only rely on the long-authorized methods of hook, bait and dipnet – which the council says have not met their subsistence needs.
This past January, after much contentious debate, the board approved the council’s request for community-set gillnets for subsistence users on the Kenai and Kasilof Rivers. Catch from both nets would be included in their total-season harvest limit of 1,000 late-run Chinook salmon, 2,000 pink salmon, 3,000 Coho salmon, and 4,000 sockeye salmon.
A gillnet is a fishing net hung vertically that traps fish by their gills.
The Kenai River fishery is located with the U.S. Fish and Wildlife Service’s Kenai National Wildlife Refuge. The board gave the refuge in-season manager Jeffry Anderson full authority to close or open fisheries based on numbers of each species of fish passing through federal and state-maintained escapements. The Kenai is one of the most fished rivers in Alaska with sport anglers, commercial operations and subsistence fishermen all vying for what has at times been, depending on the species and the year, a dwindling resource.
During prior public meetings debating whether to allow the council’s gillnets, Anderson and other biologists argued that gillnets indiscriminately take fish and may cause harm to some species that have yet to recover and are not legally fished.
Despite Anderson’s concerns, the board found no conservation concerns and voted to allow the council’s gillnets for subsistence fishing on both rivers – a move the Interior and Agriculture secretaries signed off on earlier this year.
But just before the subsistence-fishing season – just two months long, between June 15 and Aug. 15 – ramped up, Anderson told the council he was instituting an emergency closure of the Kenai River and that the closure would bar the gillnet from being set up. Anderson cited the need to conserve early-run Chinook salmon as the reason for the closure, the council says in its complaint.
And although conservation goals for the salmon were achieved by June 30, Anderson kept the river closed to all fishing. He also delayed responding to the tribe’s plan for the Kasilof River and never responded to its Kenai plan – advising the tribe to focus on the Kasilof first, the complaint says.
Less than a month before the federal subsistence-fishing season was scheduled to end, Anderson approved the council’s Kasilof plan.
As for the Kenai, the Alaska Department of Fish and Game opened it to sport fishing on July 24. Despite this, Anderson refused to rescind his agency’s emergency closure order on subsistence fishing – and never gave feedback to the council’s plan for its gillnet fishery on the Kenai either, the council says in its complaint.
With the season’s clock ticking, the council took its case to the Federal Subsistence Board. The board finally agreed to hold a meeting, but not before spending the first hour in executive session to develop a strategy to deal with the council’s request “outside of the public process and away from the public eye,” the council says in its complaint.
When the board finally convened publicly, Anderson defended his decision to keep the Kenai closed to subsistence fishing.
“Mr. Anderson also did not present any significant new information to support his refusal to confer with the council regarding a permit for a community-subsistence gillnet in the Kenai River. To the contrary, Mr. Anderson plainly stated that he would never consider approving an operational plan or issuing a subsistence gillnet permit for the Kenai River,” the council says in the complaint.
“According to Mr. Anderson, regardless of whether conservation concerns existed or not, and regardless of whether escapement goals for early and late-run Chinook salmon were exceeded by thousands of fish, he would never approve an operational plan or issue a permit for a community-subsistence gillnet on the Kenai River.”
“Despite Mr. Anderson’s testimony eschewing federal and state subsistence regulations in favor of his own conservation beliefs, and despite the harm Mr. Anderson’s arbitrary and unreasonable conduct caused the council, the board voted not to rescind Mr. Anderson’s emergency order closing the federal subsistence fishery on the Kenai River. The FSB also failed to take any action to provide the council an opportunity take salmon with a community-subsistence gillnet on the Kenai River for the 2015 season,” the council’s complaint says.
The board’s failures violated the Alaska National Interest Land Conservation Act’s mandates to allow rural residents to fish for their subsistence and the Administrative Procedure Act, according to the council.
Meanwhile, the council says its experience fishing on the Kasilof River for just half of July should put Anderson’s conservation concerns to rest.
Ninilchik Traditional Council executive director Ivan Z. Encelewski reported in the tribe’s August-September member newsletter that “we were able to actively fish a single net in the Kasilof River. The operational plan for this fishery was finally issued on July 13, 2015, and the NTC resource fished 16 days from July 13-31.”
A total of 223 sockeye were harvested in the net and distributed to rural residents who applied for participation in the harvest, according to Encelewski.
“We learned many things through this budding fishery. First and foremost, we didn’t even catch a king or steelhead, as many postulated and decried that we would,” Encelewski wrote. “Out of over 57 hours of soak time, we harvested a sockeye about every 20 minutes. This is a far cry from the predictions of sinking nets and getting all kinds of nontargeted species. In the end we only caught one small dolly that was released unharmed, and one lake trout.”
Representatives for the departments and agencies sued did not return requests for comment by press time.
The council seeks a declaration that the board’s actions – and inaction – violated the council’s rights to subsistence fishing, and an order to make sure the same thing doesn’t happen again in the 2016 season.
Attorney John Starkey of the firm Landye Bennett Blumstein in Anchorage represents the council.
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