State appeals Ninilchik ruling

Posted: Thursday, January 18, 2007

Squeezing it in just under the two-month deadline, on Tuesday the state filed an appeal to a Federal Subsistence Board decision to give the community of Ninilchik a subsistence priority in the Kenai River drainage waters on federal land.

The subsistence board granted Ninilchik the subsistence priority, in a specially scheduled board work session Nov. 17, over the opposition of state fishery managers and sport fishermen.

Those opposed to the subsistence priority worry it will inflame fierce reallocation issues and place an unsustainable burden on fish populations.

Subsistence fishermen calling for the changes, however, say the steps to advance subsistence uses on federal lands on the peninsula are well overdue and can be implemented without sparking an allocation dispute or hurting fish populations.

Under the subsistence program, subsistence is limited to people living in rural communities. If the board finds that a community has customarily and traditionally used an area to meet subsistence needs, the board may grant the community a subsistence priority in that area, as it has with Ninilchik in upper Kenai River drainage waters.

Ninilchik is the most recent of three communities the board has determined have subsistence priority on the waters of the upper Kenai River drainage on federal lands. Hope and Cooper Landing also have been granted a subsistence priority for the same waters, but with nearly 800 residents, Ninilchik is by far the largest of the three. Together, Cooper Landing and Hope have just a little over 500 residents.

In May, the state asked the board to reconsider its decision to give subsistence priorities to Cooper Landing and Hope. According to transcripts of the board’s November work session, however, the board declined the state’s request to reconsider Hope and Cooper Landing priorities on the Kenai River because the department did not provide any new information to support a change in the board’s original decision.

Depending on the board’s response to the state’s most recent request for reconsideration regarding Ninilchik, the state may take its concerns one step further, said Sarah Gilbertson, subsistence and federal issues coordinator for Fish and Game.

“Once we see what they do with that request for reconsideration, probably then folks will start thinking about whether you pursue this in a different forum, being a legal forum in the courts,” she said.

The state says survey data does not demonstrate “long-term consistent, recurring pattern of subsistence use” by Ninilchik in the upper Kenai River, that Ninilchik was erroneously granted subsistence rights there and that the board misinterpreted Fish and Game survey information to reach its conclusion.

According to Fish and Game survey data, 28 percent of Ninilchik residents have used the Kenai River at some point in their lifetime and 7 percent of Ninilchik residents fish the upper Kenai River annually.

On Wednesday, Office of Subsistence Management public affairs specialist Maureen Clark said the board and OSM have not yet determined how they will respond to the state’s request for reconsideration of the Ninilchik subsistence priority decision.

Patrice Kohl can be reached at

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