Feds file to dismiss suit over Kenai River subsistence gillnet

The Ninilchik Traditional Council filed a response March 3 to a motion by the Federal Subsistence Board and U.S. Secretaries of the Interior and Agriculture seeking to dismiss a lawsuit filed last October.

NTC filed the complaint after requests were denied by the board to remove federal fishing manager Jeff Anderson and to approve a subsistence gillnet on the Kenai River.

According to the motion seeking dismissal by the federal defendants filed Jan. 25, the court should not take up the lawsuit because the Kenai River approval is ongoing.

“Plaintiff lacks standing, and its claims are unripe,” reads the motion, “because its claims center around the (Federal Subsistence) Board and the in-season manager’s actions related to a gillnet fishery on the Kenai river, and the decision to authorize that fishery is not yet final.”

NTC filed the complaint against Federal Subsistence Board Chair Tim Towarak, U.S. Secretary of Agriculture Tom Vilsack and U.S. Secretary of the Interior Sally Jewell.

NTC disputes federal actions that closed subsistence fishing for chinook salmon last summer on the Kenai River because of conservation concerns and the refusal of Anderson to approve an operational plan for a gillnet on the Kenai River within the federal Kenai River Wildlife Refuge.

In a divided vote, the Federal Subsistence Board approved the use of a subsistence gillnet on both the Kenai and Kasilof rivers in January 2015, drawing strong opposition from other stakeholders linked to Cook Inlet commercial and recreational fishing.

So many people have challenged the proposal, the defendants argue among other administrative points, that the board still hasn’t authorized the operational plan for the fishery.

“The board has not yet completed the process of determining whether to authorize the gillnet fishery,” reads the motion. “While it initially decided to authorize the fishery, multiple parties have filed requests for consideration, and that reconsideration process is still underway.”

According to a previous Supreme Court decision, “when a motion for reconsideration is pending, an order under reconsideration is nonfinal.”

NTC denies this argument on several grounds.

First, NTC challenges that the 700-plus requests for reconsideration already filed don’t meet the criteria for the legal definition of a request, which can only be filed by a party “aggrieved by a (board) failure…to provide the priority for subsistence uses.”

Because none of the request filers are subsistence communities directly impacted by Federal Subsistence Board actions, their requests cannot hold the process, according to the NTC response.

“Defendant’s interpretation…would deny NTC the right to a meaningful subsistence fishing opportunity merely because someone who disagrees with the board, and who has no right to a judicial review, takes advantage of an ambiguous administrative position to delay the fishery for year,” the response reads.

Further, NTC argues that the board characterized its two early special action requests as requests for reconsideration, and denied them. That makes the matter final, and the complaint timely.

“The claims in NTC’s complaint stem from these final administrative actions…NTC’s claims relate to final actions and are ripe even under defendants’ reading of the applicable regulations,” the motion argues.

NTC argues that the dismissal motion is disingenuous as the approval of the Kenai and Kasilof gillnets regulation already appeared on the Federal Register.

“Indeed, the 2015 Federal Register notice in which the final gillnet fishery regulations were published makes the Board’s position clear: the gillnet regulations were effective, and thus final and ripe for the purposes of this litigation, on the date they were published,” according to the NTC motion.

The denial is the latest in a back-and-forth between the federal government, NTC, and non-subsistence fishermen on the Kenai River.

In January 2015, the Federal Subsistence Board, a multi-agency board that governs Alaska subsistence users, allowed NTC two community subsistence gillnets, one each on the federally managed portions of the Kasilof and Kenai rivers in the Kenai National Wildlife Refuge.

As a condition, NTC would have to submit operational plans for each gillnet. The federal in-season manager Anderson, who works for the U.S. Fish and Wildlife Service, must approve the plan before either net can go in the water.

The proposal passed 5-3, with the U.S. Fish and Wildlife Service voting against.

Few besides NTC itself appreciated the gillnets. State and federal biologists opposed the gillnet idea on conservation grounds. More than 700 requests for reconsideration have flooded the Office of Subsistence Management urging a repeal; the previous record for such requests of a single proposal was six.

Anderson reviewed and approved an operational plan for the Kasilof River sockeye gillnet on July 13, but did not approve the operational plan submitted for the gillnet on the Kenai River. In an emergency order, Anderson also closed all chinook fishing in the area, including subsistence fishing.

Anderson argued that while the early chinook run did meet the lower end of the escapement goal, the low statewide numbers for chinook returns merited a conservation-minded approach.

NTC Executive Director Ivan Encelewski said there were no conservation concerns, and that Anderson unfairly halted the fishery for political reasons. With a week to go in July, the Alaska Department of Fish and Game liberalized commercial fishing time for sockeye salmon and allowed the recreational take of Kenai River chinook salmon based on estimates that the minimum escapement goal would be met.

The Ninilchik Traditional Council submitted two requests on July 17 and July 21 asking the subsistence board not only to rescind Anderson’s orders, but to remove Cook Inlet area subsistence fishing from the federal in-season manager’s authority. Further, NTC wanted to rewrite the proposal, requesting that the federal manager be forced to accept their operational plan.

At a July 28 meeting in Anchorage, the board upheld Anderson’s decision to deny the operational plan and kept him as the manager of the fishery despite the council’s request to remove him.

The special action request failed on a tie vote.

Ninilchik Tribal elder and Council President Greg Encelewski later spared no venom, describing the board and Anderson’s management as “shameful.”

DJ Summers can be reached at daniel.summers@alaskajournal.com. Follow him on Twitter @djsummersmma.

Updated: 
03/16/2016 - 2:10pm

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