State Appeals Kenai Subsistence Ruling: GILLNETS: Primary Right to Fish Given to Ninilchik Residents Over Objections.
By Brandon Loomis, Anchorage Daily News, Alaska
Jan. 19–SOLDOTNA — The state of Alaska is appealing to the Federal Subsistence Board to reverse its ruling that Ninilchik residents have a primary right to Kenai River fish — a move that could signal a lawsuit over the matter.
In November, the board granted the Ninilchik Traditional Council’s request to determine that residents of the southwestern Kenai Peninsula village have made “customary and traditional” use of Kenai River fish. That ruling gives Ninilchik a subsistence priority on parts of the watershed in federal lands, and the council has proposed a gillnet fishery for salmon on the upper Kenai.
That prospect has alarmed both sport anglers and state biologists, who say gillnets in the river are likely to snare trophy trout and Dolly Varden in addition to taking salmon from other fishermen.
The state also is requesting reconsideration of a winter gillnet fishery for Ninilchik on Tustumena Lake.
“We want to give the board an option to revisit those decisions because they were poorly made,” said Sarah Gilbertson, subsistence liaison for the Alaska Department of Fish and Game. “It’s important, if this ever does go to court, that we’ve exhausted all our administrative remedies.”
Specifically, the state objects to the breadth of the board’s definition of traditional use. At the November meeting, some board members said the question wasn’t whether Alaska Natives from Ninilchik had fished the upper Kenai for years, but whether they had a historic link to the salmon that eventually make their way there. The board determined that traditional fishing along the Cook Inlet shoreline likely relied on the same salmon stocks that spawn in the upper Kenai.
Gilbertson said that’s wrong. State biologists believe Ninilchik residents fishing in Cook Inlet likely catch fish from the Deep Creek or Ninilchik River stocks, she said.
“Those are not the same stocks you would have on the Russian River,” she said, referring to the popular sport salmon fishery in the upper Kenai drainage.
In documents filed with the federal board Tuesday, the state also asserts that the board ignored its own rules that require numerous criteria for subsistence claims, including a long-term, consistent harvest of fish stocks.
There is no guarantee that the federal board will consider the state’s requests at all, and spokeswoman Maureen Clark on Thursday said she could not comment on their merits while the board’s attorneys are reviewing them.
Efforts to reach Ninilchik Traditional Council executive director Ivan Encelewski for comment were unsuccessful.
The state would seem to have a strong case that the board ignored federal law, should it press the issue in court, said Ricky Gease, executive director of the Kenai River Sportfishing Association. His group has opposed Ninilchik’s efforts to place gillnets in the river.
The association endorses continued dialogue between the state and federal governments, but past subsistence disputes have tended to leave litigation as the only option, Gease said.
“The state’s request brings up many valid points that should be considered by the Federal Subsistence Board. However, in past history the board has not given careful consideration to requests for reconsideration from the state,” he said.
“Either the Federal Subsistence Board recognizes the valid points, or basically what they’re telling the state is, ‘Fine. If you don’t like what we’re doing, go to court.’ “
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Copyright (c) 2007, Anchorage Daily News, Alaska
Distributed by McClatchy-Tribune Business News.
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