Ninilchik Tribal Council files suit over inability to subsistence fish

The 2015 fishing season on the Kenai River was tough for a lot of fishermen. But one user group is alleging it was illegally bad.

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The Ninilchik Tribal Council contends that the federal government’s slow response and inefficient processes denied the community its federally mandated subsistence salmon harvest opportunity in the Kenai River last summer.

The council filed suit Oct. 23 in Alaska Federal Court against representatives of the Federal Subsistence Board, the U.S. Department of Interior and the U.S. Department of Agriculture for violating their rights under the Alaska National Interest Lands Conservation Act.

“The tribe is really trying to have their subsistence rights, which are guaranteed to them by ANILCA, recognized so that they can fish and get allocations of salmon that they are, under federal law, entitled to,” said Anna Crary, co-council representing the tribe, with the Anchorage law firm Landye Bennett Blumstein.

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 managed 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 in the Russian River area.

In the past, 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 and trout — even though sockeye salmon were to be the primary target.

The federal subsistence fishing season runs from June 15 to Aug. 15. On May 27, the tribe submitted its required operational plans for the gillnet fisheries. The Alaska Department of Fish and Game had already announced that no king fishing would be allowed in the Kenai River during the June early run, to protect the struggling species.

On June 17, the Kenai National Wildlife Refuge announced a closure of the subsistence fishery. Both the refuge and Fish and Game continued their king fishing restrictions into July to protect the late run of Kenai kings, as well.

Crary says the conservation measure isn’t the cause of the tribe’s complaint.

“The fact that even when other sport fisheries were liberalized the subsistence fishery remained closed,” Crary said.

Fish and Game lifted its fishing restrictions on kings in the Kenai on July 24. The federal subsistence fishery closure remained in effect, and the tribe’s gillnet operational plan for the Kenai was never approved.

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. Crary says they caught around 270 sockeyes.

“So it was a successful harvest for them in that sense,” Crary said. “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. So, it was very well managed, it was very well overseen by the tribe.”

The tribe filed special action requests to the Federal Subsistence Board on July 17 and July 21 seeking to lift the closure on subsistence fishing in the Kenai and the issuance of the tribe’s the gillnet permit.

The board met in Anchorage on July 28, two weeks before the closure of the federal fishing season. It did not reverse the fishing closure. The board directed the in-season fishery manager 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.

“No one is trying to disqualify Fish and Wildlife or the in-season manager from doing his job, which is to manage in season and make these sorts of decisions,” Crary said. “What the tribe wants is an actual objective standard by which those decisions are made, and right now there is no objective standard.”

The lawsuit seeks recognition that the board’s actions — or lack thereof — violated the council’s subsistence fishing rights.

“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,” Crary said. “The Kenai is, as we know, a very popular river, and amidst other interests there’s also federally recognized rural residents with subsistence needs who have a priority to access the fish in these rivers. This is a way for Ninilchik to obtain access to which they’re guaranteed by law.”

Crary said the tribe primarily wants to ensure that the 2016 fishing season won’t be a repeat of 2015.