By Jenny Neyman
The summer of 2015 was a tough one for many anglers on the Kenai River, with a conservation concern over king salmon prompting the Alaska Department of Fish and Game to close the river to king fishing throughout the June early run and for most of the July late run. When the ban was lifted July 24, as it looked like kings were reaching their optimum escapement goals after all, many happy anglers took to the river.
But not residents of Ninilchik seeking their federal subsistence salmon harvest. They continued to sit high and dry.
The Ninilchik Tribal Council contends that the federal government’s slow response and inefficient processes denied them their federally mandated subsistence salmon harvest in the Kenai River last summer, and nearly cost them their harvest in the Kasilof River, as well.
The council filed suit Oct. 23 against representatives of the Federal Subsistence Board, the U.S. Department of Interior and the U.S. Department of Agriculture for failing to provide an opportunity for their members to conduct their subsistence harvest allotted to them by law under the Alaska National Interest Land Conservation Act.
“The tribe is really trying to have their subsistence rights, which are guaranteed them by ANILCA, recognized so that they can fish and get allocations of salmon that they are under federal law entitled to. So the lawsuit itself is more of an injunctive case seeking to ensure that in this upcoming fishing season, in 2016, the tribe is able to do this,” said Anna Crary, co-council representing the tribe in the case, with Landye Bennett Blumstein law firm in Anchorage.
The state of Alaska doesn’t recognize a rural-resident priority on fish and game resources, so the federally mandated subsistence programs are conducted on federally mandated lands and waters in the state. On the Kenai Peninsula, residents of Ninilchik, Cooper Landing and Hope qualify for federal subsistence harvests, and are allowed to conduct those activities on the Kenai National Wildlife Refuge. On the Kenai River, that puts them near the Russian River area.
In the past, the Ninilchik residents have utilized hooks and bait or dip nets, but say those methods haven’t met their subsistence needs. In January, the Federal Subsistence Board approved the council’s request to operate a community gillnet in the Kenai and Kasilof rivers, over the objections of federal and state fishery managers who said the nets would be indiscriminate and could catch sensitive species — such as kings or trout — even though sockeye were to be the target.
The federal subsistence fishing season runs from June 15 to Aug. 15. On May 27 the tribe submitted an operational plan for the community subsistence gillnet fisheries in the Kasilof and Kenai rivers, as it is required to do. On June 9, refuge in-season fishery manager Jeffry Anderson told the tribe he was preparing an emergency closure of the fishery to conserve the struggling early run kings. The closure was issued June 17.
On June 30, the Kenai’s early king run met its optimal escapement goal. Both the refuge and Alaska Department of Fish and Game continued their fishing restrictions into July to protect the July late run of kings, as well.
The conservation measure itself isn’t the source of the complaint, Crary said.
“The fact that even when other sport fisheries were liberalized the subsistence fishery remained closed,” she said.
Throughout June and July, according to the complaint, the tribe continued seeking a response from Anderson on its gillnet operational plans.
“Mr. Anderson’s commentary on NTC’s operation plan for the Kasilof River community subsistence gillnet was slow and delayed. Mr. Anderson refused to provide NTC with any feedback on its plan for the Kenai River community subsistence gillnet, advising NTC that it should complete the Kasilof River gillnet operational plan first,” states the complaint.
The tribe’s Kasilof plan was approved July 13 and a permit was issued, giving them a little under a month to fish before the end of the subsistence season. They caught around 270 sockeye, Crary said.
“So it was a successful harvest for them in that sense. It was also successful in the sense that they didn’t take any early run or late-run chinook or other species, like rainbow trout or Dolly Varden. It was very well managed, it was very well overseen by the tribe,” she said.
Fish and Game lifted its fishing restrictions on kings in the Kenai on July 24, yet the ban remained for the federal subsistence fishery, and the tribe’s gillnet operational plan for the Kenai was not approved.
The tribe filed special action requests to the Federal Subsistence Board on July 17 and July 21 seeking to reverse Anderson’s refusal to lift the closure on subsistence king fishing in the Kenai and his inaction on issuing the gillnet permit.
The complaint states that the board “struggled to determine what process to use for hearing NTC’s appeal for relief. …. The FSB’s confusion and failure to have a clearly defined process for overseeing in-season management actions undermined NTC’s ability to effectively bring its claim for relief and demonstrates the unchecked and arbitrary nature of the process the FSB has instituted for critical in-season decision-making.”
The board met in Anchorage on July 28, two weeks before the closure of the federal fishing season. It started the meeting with an hourlong executive session.
“On information and belief, during executive session the FSB developed a strategy to address NTC’s request outside of the public process and away from the public eye,” the complaint states.
The tribe presented its arguments, but the board chose not to rescind Anderson’s emergency order, neither did it take action to allow the Kenai community gillnet fishery. The board directed Anderson to work with the tribe to develop an operational plan, but, as the complaint points out, gave no specific directions, timelines, procedures or standards for how that was to happen.
“The FSB failed to take any action to limit the unbridled authority of the in-season manager to arbitrarily and unreasonably delay, frustrate, and prevent the permitting of a community subsistence gillnet for the Kenai River,” the compliant states. “The FSB also failed to provide standards, such as achieving escapement goals, or any oversight to guide Mr. Anderson’s future in-season management decisions to prevent future arbitrary and illegal closures which eliminate opportunities for subsistence uses and are not consistent with ANILCA. Additionally, the FSB failed to ensure a process for in-season management decision-making that incorporates legal safeguards, pursuant to the APA, for public notice and comments and an avenue to seek timely relief.”
The lawsuit seeks recognition that the board’s actions — or lack thereof — violated the council’s subsistence fishing rights, as well as an injunctive order to ensure the 2016 fishing season won’t be a repeat of 2015.
“As a direct consequence of Mr. Anderson’s arbitrary and unreasonable conduct, and the FSB’s failure to take action to rescind his in-season closure and to issue a gillnet permit for the Kenai River, NTC was not provided with a meaningful subsistence opportunity during the 2015 subsistence salmon fishing season, nor was NTC able to meet its subsistence needs, causing the tribal members and community great hardship and irreparable harm,” the complaint states.
Crary said the tribe isn’t looking to change the structure by which the fishery is managed, just to require more consistency and predictability.
“No one is trying to discourage Fish and Wildlife or the in-season manager from doing his job, which is to mange in season and make these sorts of decisions,” she said. “What the tribe wants is an actual objective standard by which those decisions are made, and right now there is no objective standard.”
“I think at the end of the day what the tribe is really driving toward here is a fair playing field for all users on this river,” she said. “The Kenai is, as we know, a very popular river, and amidst other interests there are also federally recognized rural residents with subsistence needs who have a priority to access the fish in this river. This is a way for Ninilchik to obtain access to which they’re guaranteed by law and to even the playing field.”