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Supreme Court dipnetting ruling opens new ground in subsistence issue

Craig Medred

Chitina salmon dipnetters saw one get away this week thanks to Alaska Supreme Court justices, who again tossed a curve ball into the state's long-running subsistence battle. The judges ruled that just because there's a state subsistence preference for hunting and fishing doesn't mean the state has to allow subsistence hunting and fishing everywhere.

The preference is a big deal because it provides a priority. In many places in the state, those who can claim subsistence -- itself a complicated process -- move to the front of the line of users of wild resources.

The dipnetters had asked the court to restore Chitina to subsistence status, which would have given them back a guaranteed preference over Cordova-based commercial fishermen downstream on the Copper River. The commercial fishery now catches vastly more fish than the dipnet fishery, and dipnetters worry commercial economic clout makes it easier for commercial fishermen to convince the board to lower the number of fish available to dipnetters.

At the request of the commercial fishery, the fish board in 2003 dumped the subsistence-preference in favor of a personal-use designation, which left the dipnet fishery intact but forced dipnetters to negotiate with commercial fishermen before the board when it came time to allocate salmon catches. The Fairbanks-based Chitina Dipnetters Association twice appealed to the board to change the fishery back to subsistence. The board in 2003 and 2008 denied those requests.

So the association, joined by the Alaska Outdoor Council, sued. A Superior Court judge ruled against them, and the Supreme Court Friday upheld that decision. The Fairbanks News-Miner called it a "defeat" for the Fairbanks-based dipnetters.

But the Friday decision wasn't exactly a win for the Fish Board, either, or for that matter the Board of Game. Both have spent decades trying to mediate between subsistence, sport and commercial users of Alaska fish and wildlife. The former have long been of the opinion a state subsistence law -- as opposed to an overlapping federal subsistence law, which is a whole other story -- gives them a harvest preference everywhere in the state.

But the latest court ruling (find the full copy here) takes issue with that thinking.

Changing the Chitina fishery from subsistence to personal use, the court ruled, "does not affect any individual’s ability to obtain a subsistence permit or to utilize that permit in a subsistence area, but merely decides whether the use patterns in that specific area support a finding of customary and traditional uses. This regulation does not affect any user’s admission to a user group and none of the criteria are based on residency; therefore, it does not violate the holdings of McDowell (a previous Supreme Court decision granting all Alaskans the subsistence priority), and its progeny.

"Citizens do not have a constitutional right to have a subsistence fishery in their preferred area; although this determination denies a subsistence priority in the Chitina subdistrict, it is not per se unconstitutional."

The latter comment is sure to open the door to reconsideration of some contentious subsistence activities, such as winter moose hunts in the Susitna and Yentna river valleys. Snowmachines, coupled with snowmachine trails now maintained with state funding, have in recent years made those areas in some ways little more than recreational suburbs of the Matanuska-Susitna Valley. Many hunters have argued that given the evolving land-use patterns, it is time for the subsistence moose hunts to end, just as the subsistence dipnet fishery on the Copper River has now ended.

Meanwhile, the latest decision would also appear to provide the Board of Game new latitude to deal with Nelchina caribou hunts. The Nelchina caribou, which are the caribou most easily accessible from the state's urban core in and around Anchorage, have been fought over for decades. The Board of Game has repeatedly changed regulations in an effort to allow the general public access to the Nelchina hunt. It has often ended up with regulations found in violation of the Alaska Constitution, either because they showed favoritism to where people lived, how long they lived in the state, or how much money they made.

The court's latest ruling could be read to give the Board the power to zone the vast Nelchina basin into subsistence and non-subsistence zones.

Contact Craig Medred at craig(at)alaskadispatch.com