Tribe’s Claims of Lost Fishing Season Sliced

ANCHORAGE (CN) — A federal judge this week partly dismissed claims brought by an Alaska Native tribe that the federal government is dragging its heels in approving a request to set up a subsistence fishery on the Kenai River.

The Ninilchik Traditional Council sued representatives of the Federal Subsistence Board, the U.S. Department of Interior and the U.S. Department of Agriculture this past October in Alaska Federal Court. 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 provided for by law.

A governing body of a federally recognized Alaska Native tribe, 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 for subsistence opportunities on federal lands and waters over that of commercial and sport fishing interests.

The original complaint also accused the government of violating the Administrative Procedure Act in relation to the subsistence board's 2002 delegation of authority to the in-season fishery manager Jeffry Anderson, a U.S. Fish and Wildlife Service Kenai Fish and Wildlife Field Office supervisor, and his 2015 closure of the fishery and failure to implement the Kenai River gillnet fishery regulation.

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 numbers of each species of fish passing through federal and state-maintained escapements.

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. A gillnet is a fishing net hung vertically across the width of the river to trap passing fish by their gills.

In January 2015, after much contentious debate, the subsistence 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.

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. But despite Anderson's concerns, the board found no conservation issues and voted to allow the council's gillnets for subsistence fishing on both rivers with the Departments of Interior and Agriculture's final stamp of approval.

But just before the subsistence-fishing season — just two months long, between June 15 and Aug. 15 — Anderson instituted an emergency closure on subsistence fishing in the Kenai River to conserve early-run Chinook salmon that barred fishing including the council's gillnet from being set up. However, the Alaska Department of Fish and Game opened the river for sport fishing on July 24.

Anderson also delayed responding to the tribe's plan for the Kasilof River before approving it less than a month before the federal subsistence-fishing season ended and never responded to its Kenai plan, advising the tribe to focus on the Kasilof first, the complaint says.

U.S. District Judge John Sedwick heard oral arguments on April 14 regarding the federal defendants' motion to dismiss the case for lack of subject-matter jurisdiction and failure to state a claim.

And in a ruling issued April 17 — after finding he had jurisdiction to hear some of the claims — Sedwick declined to dismiss the council's claim that the subsistence board violated federal rules by not establishing "frameworks" to guide the delegation of its authority. He also refused to dismiss the council's claim that Anderson also violated federal law by failing to decide the Kenai gillnet permit application based on the merits of the operational plan.

On all other actions — including all four relating to violations of the Administrative Procedure Act — Sedwick granted the government's motion to dismiss, finding the council lacked standing to challenge the closure of the fishery because it has since reopened and the tribe isn't suffering an ongoing injury.

"The council is seeking a declaratory judgment stating that the board's failure to overturn Anderson's emergency closure in 2015 violated the Alaska National Interest Land Conservation Act and the Administrative Procedure Act," Sedwick wrote. "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."

He added that the tribe did not allege facts that the 2015 closure was unlawful would prevent the board from closing the fishery in 2016 or beyond, since the fishery is sometimes closed for a variety of legitimate conservation reasons.

Additionally, Sedwick found the council lacked standing to compel the federal defendants to develop an operational plan for gillnet fishing, since federal law requires the council to develop a plan, not Anderson or any government agency.

Sedwick also found he lacked jurisdiction to rule on the council's request for an order compelling feds to issue the Kenai gillnet permit because nothing in the regulations requires Anderson to issue the permit.

"Instead, the regulation gives the in-season manager discretion to determine whether an operational plan is meritorious," Sedwick wrote, noting that he had jurisdiction to decide whether a decision was improperly withheld.

U.S. Fish and Wildlife spokeswoman Andrew Medeiros declined to comment on the ruling stating, "The case is still being litigated. We cannot comment at this time."

Despite Sedwick's dismissal of some of the council's claims, council attorney Anna Crary told Courthouse News that the tribe was pleased with the ruling overall.

"Ninilchik is pleased with the district court's ruling on the defendants' motion to dismiss, as it preserves a number of important claims and confirms that these claims are ripe and that the tribe has standing to raise them under ANILCA," Crary said. "Importantly, the court determined that requests for reconsideration of the Kenai and Kasilof gillnet regulations filed by third parties — persons and organizations other than Ninilchik — do not have the effect of staying the implementation of these regulations. This ruling helps ensure subsistence users like Ninilchik have their day in court, and clears the way for Ninilchik to get gillnets in the Kenai and Kasilof rivers this summer.

Ninilchik Traditional Council executive director Ivan Z. Encelewski reported in the tribe's August-September member newsletter that a total of 223 sockeye were harvested in the Kasilof gillnet and distributed to rural residents who applied for participation in the harvest.

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.

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