Federal Subsistence Board addresses peninsula issues

No to RAC, yes to fishery

Posted: Friday, November 17, 2006

The Alaska Federal Subsistence Board voted down a proposal to create a separate subsistence council to represent the Kenai Peninsula, but passed a proposal to open a winter subsistence fishery targeting residential fish in Tustumena Lake, in a meeting on Thursday in Anchorage.

The proposal the board passed allows residents in Ninilchik to subsistence fish for lake trout, rainbow trout and Dolly Varden in the lake this winter using gillnets and jigging gear, despite state concerns that the fishery might harm resident species stocks.

Comparing the proposal’s quotas to historical estimates of sport fish harvests of residential fish from the lake, board members supporting the fishery said the proposed fishery was modest and not likely to harm the lake’s residential stocks.

The winter subsistence fishery allows for a quota of 200 lake trout, 200 rainbow trout and 500 Dolly Varden. All gillnet subsistence fishing on the lake will be discontinued once the quota for any one species has been met.

Historical estimates collected by the Alaska Department of Fish and Game show sport fish harvests of rainbow trout, lake trout and Dolly Varden have ranged in the low hundreds for each species, said Office of Subsistence Management fisheries biologist Doug McBride.

The state disagreed with the fishery’s proponents, arguing that because resident fish grow and reproduce slowly, a subsistence fishery would be risky.

Fish and Game deputy commissioner David Bedford said the proposed subsistence fishery does not fit with the conservative fisheries management plans that have helped Alaska maintain rich genetic diversity among its trout species.

Supporters of the fishery, however, said that because the fishery requires subsistence fishermen to report their catches within 78 hours of harvest, fisheries managers could respond quickly if catches indicate fish are being overharvested.

Additionally, supporters said the subsistence fishery’s prohibition on fishing within a quarter mile of the mouth of any tributary to the lake, where fish are believed to congregate and feed during the winter, would help protect fish.

Bedford, however, also said Ninilchik residents already have plenty of fishing opportunities to meet their harvest needs under current regulations, and if the board were too follow its own regulations, it would not allow the proposal to be considered.

The Tustumena subsistence fishery was proposed by the Ninilchik Traditional Council as a special action request, meaning the board was asked to consider the proposal outside of its normal regulatory cycle.

Fish and Game has argued that subsistence regulations only allow the board to consider a special action request when there are extenuating circumstances, such as sudden stock decline or other unforeseeable changes in a fishery.

When board members asked U.S. Department of the Interior attorney Kenneth Lord for council on how the extenuating circumstances requirement applied to the special action request for a subsistence fishery, he said the regulations are ambiguous.

Lord said regulations are clear that the requirement applies to an emergency special action request, but less clear as to whether it also applies to nonemergency special action requests, and that the question has never come before a court.

“So we are left with a situation where the board has some discretion to interpret its own regulations,” he said.

When the council voted on the subsistence fishery proposal it passed five to one, with all but the board’s chair, Mike Fleagle, voting in support of the fishery.

Fleagle said he did not worry the fishery would pose a conservation issue, and only declined to vote for the proposed fishery because the request fell outside of the normal regulatory process.

“I’d like to be consistent in requiring a definable, predictable process as much as possible,” he said.

Because the fishery was proposed as a special action request, it is temporary and will only be open this winter, unless a proposal to continue the fishery is supported during the normal regulatory cycle next year.

Following its consideration of the subsistence fishery proposal, the board picked up and then dropped the proposal to create a Kenai Peninsula Regional Advisory Council.

In Alaska, 10 regional advisory councils, or RACs, help guide board decisions addressing subsistence uses of fish and wildlife on federal public land and water.

The Kenai Peninsula is represented by the Southcentral RAC, which also represents Prince William Sound, Copper River drainage, Cook Inlet drainage and the inland waters and lands of the Glennallen area. The board put forth the proposal to create a Kenai RAC earlier this year, saying the Southcentral RAC is too big.

But at Thursday’s meeting the board shifted, with members saying that although the Southcentral RAC has a lot on its plate, it has been doing a good job addressing the issues in its region.

In addition, some board members where concerned that 10 of the 12 people who had applied to become members of the proposed Kenai RAC were from nonrural areas, saying that a board consisting largely of nonrural members might not represent subsistence users to the extent it should.

But not all board members agreed.

“My understanding is that we have had very excellent applicants that applied, many of them did have a strong history with subsistence,” board member Gary Edwards said. “I would certainly think that, that’s what we should be looking at — not whether someone is from Kenai or Cooper Landing or Ninilchik.”

Some, however, also argued the origin of the proposal goes against the intent of the Alaska National Interest Lands Conservation Act, the law which mandates the continuation of subsistence uses on federal public lands in Alaska.

David Case, an attorney representing the Ninilchik Traditional Council, said that because the proposal originated with the board rather than among subsistence users or in a RAC, that it runs contrary to the bottom up process supported by ANILCA.

On Thursday, the board also began consideration of a proposal to reconsider a Ninilchik customary and traditional use designation for the Kenai River drainage on federal lands, tabled the issue until today in the interest of time.

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