By Tim Mowry/[email protected] Fairbanks Daily News-Miner
Dec 5, 2011 Updated Jan 16, 2013
Editor’s note: The original article had the incorrect date for the adoption of the eight regulatory criteria used by the Board of Fisheries to judge whether a fishery is customary and traditional. The regulations were first adopted in 1982.
FAIRBANKS — The Alaska Supreme Court heard arguments Monday in the ongoing legal battle about whether Chitina dip-netters should be classified as subsistence fishermen.
The Chitna Dipnetters Association and Alaska Fish and Wildlife Conservation Fund are appealing a 2010 decision made by the Alaska Board of Fisheries that kept dip-netters who scoop salmon out of the Copper River classified as personal-use fishermen. That decision followed an order by a Fairbanks Superior Court judge for the Board of Fisheries to better define the term “subsistence way of life.”
The two groups are asking the Supreme Court to throw out a 1982 regulation that established eight criteria the board used in making customary and traditional use findings, the basis for determining subsistence use under state law in Alaska.
A subsistence designation would give dip-netters a higher priority than commercial fishermen when fishing is restricted. Commercial fishermen catch an average of 1.6 million Copper River salmon each year while dip-netters catch about 100,000.
Fairbanks attorney Mike Kramer, who is representing the Chitina Dipnetters Association and Alaska Fish and Wildlife Conservation Fund, told the Supreme Court the eight criteria all but ensure a rural subsistence priority, which the court has ruled is unconstitutional. The eight criteria create a “de facto rural preference,” he said.
“The state subsistence law, we believe, adequately and fully addressed the two things necessary to define subsistence — a customary and traditional finding and subsistence uses,” said Kramer. “We are asking the court to not only strike the eight criteria but direct the board to come up with a positive finding of customary and traditional use for Copper River salmon at Chitina.”
The eight criteria were created in 1982. The Board of Fisheries voted in 1999 to classify Chitina dip-netters as subsistence users. The board reversed that decision in 2003 as a result of a study by the state Division of Subsistence that compared subsistence users instead of uses, Kramer said. He argued the Board of Fisheries must look at the long-term historical use of a resource to determine whether it meets the definition of subsistence, not the people who are using it.
“You don’t look at who’s got a dip net in the river,” Kramer said. “It’s the long-term, historical use of a resource. Has that stock of salmon been classified as customary and traditional.”
In the case of the Copper River, the only difference between personal-use and subsistence fishermen at Chitina is where they fish, Kramer noted. People who fish upstream from the McCarthy Road bridge are classified as subsistence, while dip-netters who fish below the bridge are designated as personal use.
The study, which was commissioned and funded by the Federal Subsistence Board, was “skewed” because it compared randomly selected dip-netters with hand-picked, rural subsistence users who lived near Chitina and fit the eight criteria established by the Board of Fisheries, Kramer said.
Arguing for the state, Lance Nelson, assistant attorney general for the Department of Law, acknowledged the question about whether dip-netters should be classified as subsistence users is “a close call that could go either way.” But Nelson said it’s the board’s decision to make, not the court’s.
“The board is the one the Legislature invested the authority in to make those judgment calls,” Nelson said. “The real question in this case is will there continue to be a meaningful subsistence way of life in Alaska based on true subsistence use.”
Granting Chitina dip-netters a subsistence priority would create a “diluted preference” that would open the door to other dissatisfied groups to claim a subsistence priority when none exists.
“There is no de facto rural preference in play here,” Nelson said.
CRITERIA
Here are the eight criteria currently used by the Alaska Board of Game and Alaska Board of Fisheries to identify the use of fish stocks or game populations as customary and traditional, for purposes of deciding which uses are subsistence:
1) A long-term consistent pattern of noncommercial taking, use, and reliance on the fish stock or game population that has been established over a reasonable period of time of not less than one generation, excluding interruption by circumstances beyond the user’s control, such as the unavailability of the fish or game caused by migratory patterns;
2) A pattern of taking or use recurring in specific seasons of each year;
3) A pattern of taking or use consisting of methods and means of harvest that are characterized by efficiency and economy of effort and cost;
4) The area in which the noncommercial, long-term, and consistent pattern of taking use and reliance upon the fish stock or game population has been established.
5) A means of handling, preparing, preserving and storing fish or game that has been traditionally used by past generations, but not excluding recent technological advances where appropriate;
6) A pattern of taking or use that includes the handing down of knowledge of fishing or hunting skills, values and lore from generation to generation;
7) A pattern of taking, use and reliance where the harvest effort or products of that harvest are distributed or shared, including customary trade, barter and gift giving;
8) A pattern that includes taking, use and reliance for subsistence purposes upon a wide diversity of fish and game resources and that provides substantial economic, cultural, social and nutritional elements of the subsistence way of life.
