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Kusko salmon trial: Alaska game managers defend closure as essential

In a Bethel courtroom, the state of Alaska is working to convince a judge its river fishery managers acted responsibly when decisions were made to close the Kuskokwim River to subsistence fishing. The case has divided villagers, who rely on salmon runs to feed their families, and state officials, who have a duty to manage fish runs for sustainability. It's an important job, as the river is home to one of the world's last remaining great wild salmon runs.

At the end of two days of testimony Tuesday, Magistrate Bruce Ward couldn't help but comment on the atmosphere in the courtroom, packed with observers who'd packed snacks – largely smoked salmon – for the proceeding.

“It's like being in a theater with popcorn you can't eat,” he commented with a laugh. “It smells good.”

In this region, fish are king. And the king of fish are chinook, also known as king salmon. They’re at the center of a courtroom faceoff, where nearly two dozen fisherman cited for illegal fishing in 2011 are challenging the charges against them.

Villagers claim more should have been done to protect their cultural and spiritual right to fish for the large, early run salmon. The state of Alaska and the U.S. Fish and Wildlife Service have said they’re sympathetic to the plight of families along the river system, but that their first priority is to conserve the fish run itself. Access to the run by families who have relied on it for generations comes second. Neither management goal is taken lightly.

“There was no request to accommodate a spiritual need last year, officially,” testified Travis Ellison, a Kuskokwim River fisheries manager with Alaska Department of Fish and Game.

Yes, a man had made a request for a spiritual exemption to defy the closure to catch salmon for his father's memorial service. But after reviewing the rules, Ellison found that such requests need to come from a village official. Ellison advised the man to have someone from the tribal council, or another leader, make the request on his behalf. But no such request was made.

The Kuskokwim River's chinook runs have been in a period of decline for several years. In recent decades, periods of low runs aren't unusual. Years of strong returns with large numbers of fish are often followed by years where the numbers dip precipitously. And 2012 was especially bad. About 135,000 chinook entered the river system, with fewer than 77,000 thought to have reached the spawning grounds, far below the management goal of 127,500 fish the department sought to sustain the run. The 60,000 fish that didn’t make it were taken for personal use by families along the river system, according to data released in February by the Yukon-Delta Kuskokwim Subsistence Regional Advisory Council. That subsistence harvest was significantly lower than the average 73,000 fish taken each year over the last decade. There isn’t much of a sport or commercial fishery on the Kuskokwim or its tributaries.

Compared to the river’s historic trends, 2012 was a dismal year. From 1976 to 2011, average annual returns have been 260,500 chinook. In 2010, the return fell to 118,000 fish, compared to highs of more than 388,000 fish in 1981 and 2004. In the last three years, escapement – the number of fish to make it to spawning grounds – has also been low: 49,000 in 2010; 72,000 in 2011; less than 77,000 for 2012.

When it became clear the run size was smaller than anticipated, river managers decided to curtail access, giving the fish in the river their best chance of “laying eggs in gravel,” as another witness described it.

On the Kuskokwim, subsistence users are able to pull in about 14,000 salmon a day, according to Ellison, who explained to the court why even allowing a handful of village representatives to fish on behalf of everyone would have been problematic.

Because fishing on the Kuskokwim River is done with gill nets, there is no way to manage how many fish are taken. One take by a fisherman could yield a single fish or 100, Ellison said. He also rejected a suggestion by defense attorney James Davis that the department could have let one person from each village go out and try for 10 fish, if only to allow locals to test the strength of the run themselves, and to offer access to a traditional practice that has deep spiritual meaning for many area families.

Ellison also said he'd heard from fishermen in 2012 who recognized the crisis, and had voluntarily chosen to abstain from getting their nets wet. “I've heard many people say they decided not to fish because they knew other people needed it more and they were concerned for the resource,” he said.

'It takes fish to make fish'

Davis, the attorney leading the fight for the fisherman, has also raised questions about why more wasn't done to give subsistence fisherman the highest priority over all other users. Why didn't the federal government step in? Why are pollock fisherman in the open sea allowed to scoop up tens of thousands of king salmon as bycatch, many of which are presumed bound for Western Alaska river systems?

The feds chose to let the state lead the management decisions in 2012, because they agreed with the choices the state was making, testified Daniel Gurkin, a fisheries biologist with the Yukon Delta Wildlife Refuge, which has management jurisdiction over two tributaries of the Kuskokwim. As with the state, his agency has a responsibility to conservation of the resource first and foremast.

“It takes fish to make fish,” he told the court, explaining that the conservation responsibility is to future generations, which raises the stakes beyond merely trying to ensure people here and now can fish.

As for the bycatch issue, Gillikin agreed bycatch likely affects the river systems, but said there's no way to know how much it's a factor.

Bering Sea fisherman are allowed to take just under 48,000 chinook as bycatch, and for two decades they averaged about 40,000 chinook per season, according to data published by the National Oceanic and Atmospheric Administration. The same report shows nearly 122,000 chinook were scooped up in 2007, but by 2011 the numbers had dropped to little more than 25,000.

Had the pollock fishery been shut down in 2012 over the chinook salmon crisis in the Kuskokwim River, Gillikin didn't think it would have done much. By the time a low run was detected, it meant salmon were already headed into the river and were already beyond the reach of the trawl fleet.

Davis asked, What about if the trawlers had been shut down or restricted in prior years, like in 2007 when 122,000 chinook were captured on the high seas? Might that account for the recent years – 2010, 2011, 2012 – of poor returns?

Possibly, said Gillikin. But with so many factors affecting returns, it would be difficult to gauge. Age of the fish caught, and other conditions like the marine environment and climate patterns affect the fish, too. With so many variables, there's no way to say for certain any one factor is to blame, he said.

The state's final witness, Yukon Delta National Wildlife Refuge deputy manager Thomas Doolittle, reinforced what Gillikin and Ellison had said earlier: Telling people they can't fish is not a decision that's taken lightly, nor recklessly. And, as with the state, going after the pollock fleet isn't within their jurisdiction. Other federal agencies – the National Marine Fisheries Service, The U.S. Department of Commerce and NOAA – are the primary decision makers there. The U.S. Fish and Wildlife Service, which runs the refuge Doolittle helps oversee, aids by providing data and passing on the concerns of river users. But decision making powers are left to the other agencies, he said.

“It (restricting opportunities for fishing) was a very hard decision for everybody. It's difficult when you know you are affecting the daily life of users. (But) we knew we had to support the management actions that would restrict the use by users,” he said. “The resource has a subsistence priority, but it can't have a priority without having the resource there and there for future generations.”

Before the trials of the individual fisherman continue, Magistrate Ward will first need to decide whether the defendants have a valid religious defense claim. After two days of witness testimony, and mounds of data to synthesize, he offered no hint of whether he's leaning one way or the other. He'll give the attorneys a chance to sum up their arguments on Thursday morning, then work through the weekend to decide who's right.

“This court has no idea what the decision will be at this point,” Ward said.

Contact Jill Burke at jill(at)alaskadispatch.com