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HomeMy WebLinkAboutResolution No. 2015-11O a; ��� __ _ i Suggested by: Mayor Pat Porter Vice -Mayor Brian Gabriel CITY OF KENAI RESOLUTION NO. 2015 -11 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, REQUESTING RECONSIDERATION OF, AND STRONGLY OPPOSING, THE FEDERAL SUBSISTENCE BOARD DECISION TO ALLOW THE USE OF GILLNETS IN THE UPPER KENAI RIVER WHEREAS, the Federal Subsistence Board approved the use of up to three 10 fathom (60) long gillnets to be placed in the Kenai River as a component of Fisheries Proposal FP 15 -10; and, WHEREAS, the use of Gillnets in the upper Kenai River pose a substantial and unreasonable threat to the recovery of King (Chinook) Salmon stocks which spawn in the upper Kenai River; and, WHEREAS, it is critically important to conservatively manage the Chinook Salmon stock due to low abundance over the past five years; and, WHEREAS, the Federal Subsistence Board did not fully consider the negative effects of FP 15 -10 on present and future spawning Chinook Salmon stocks in the Upper Kenai River; and, WHEREAS, there are other methods of selective harvest, such as dip net, that are selective in nature and provide an opportunity to release non - targeted species intact. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the Council directs the City Manger to submit to the Federal Subsistence Board on behalf of the Kenai City Council a request for reconsideration, and a strong statement of opposition to FP 15 -10. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 4th day of March, Pat Porter, May .r Ter�ookey, ounc'1 �Ryaann ,Marquis, Council Member WE Tian G riel, Vice Mayor Bob Molloy, Council Member Tim Council Member M "Villme with a Past, City with a Future" MEMO: TO: City Council Rick Koch 9FROM: DATE: February 26, 2015 SUBJECT: Resolution 2015 -11 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 11111.1 1992 The purpose of this correspondence is to respectfully request Council consideration and approval of the above referenced resolution. The effect of passage of Resolution 2015 -11 is to authorize the City Manager to submit a request for reconsideration, and opposition of, the Federal Subsistence Board action approving FR- 2015 -10, allowing up to three 10 fathom (60') gillnets to be placed in the Upper Kenai River. The residents of Kenai, the Kenai Peninsula, and the State of Alaska, would be harmed by gillnets being placed in the upper Kenai River where King (Chinook) Salmon are present, and spawn. I have included the following for your information: 1. Letter dated February 6, 2015 from State Senators Micciche and Dunleavy requesting reconsideration of FP 15 -10 (2 pages) 2. Letter dated January 29, 2015 from State Representative Gara requesting reconsideration of FP 15 -10 (4 pages). 3. Options for Recourse Following Subsistence Board Actions- Guidance (15 pages). 4. Previous State of Alaska Department of Fish & Game Request for Reconsideration to the Federal Subsistence Board (3 pages). Thank you for your attention in this matter. If you have any questions, please contact me at your convenience. Senator Peter A. Micciche Room 514 Juneau, AK. 99801 Phone: 465 -2828 February 6, 2015 Office of Subsistence Management U.S. Fish and Wildlife Service 1011 E. Tudor Road, Mail Stop 121 Anchorage, AK 99503 Alaska state Legislature Dear Members of the Federal Subsistence Board: Senator Mike Dunleavy Room 11 Juneau, AK. 99801 Phone: 465 -6600 Although the ruling has not been published in the Federal Register, we are writing to request reconsideration of the recent Federal Subsistence Board's approval of FP 15 -10. It is our opinion that the Board did not adequately consider the in -depth biological information regarding Chinook salmon spawning in this reach of the Kenai River. Nor does it appear that the Board was presented potential biological and economic impacts related to non - target species, particularly Rainbow Trout and Dolly Varden. Any take of large rainbows is inconsistent with all other means of harvest presently allowed. Consideration of this information is critical for the Board to make the right decision. The documentation provided to the Board in the Public Meeting Book for the January 21 -23, 2015 public meeting clearly articulated valid concerns regarding the efficiency and lack of selectivity of gill nets in catching various fish species. It is important to note that non - target fish caught in a gill net will likely not survive release. It is critically important to conservatively manage the Chinook salmon stock due to low abundance. This reach of the Kenai River below Skilak Lake is extremely productive spawning for both Sockeye and Chinook, the latter of which needs protection. The concerns voiced in this documentation are compelling and even though this information is not new, the information merits reconsideration by the Board. The fact that the USFWS, USFS and ADFG agency staff all recommended against approval of FP 15 -10 in a narrowly passed action should also bejustification to reconsider. It is also important that the board understand we are not protesting other methods of subsistence fishing on these rivers. Ninilchik, Hope and Cooper Landing community members already have significant and adequate opportunity to harvest salmon in the Kenai River. Notably, they can use a dip net from a boat to harvest fish in this and other reaches of the river that are off - limits to non - subsistence users for dip netting. Our personal experience is that fishing from a boat with a dip net is a highly effective means of harvesting salmon, especially if there is limited competition from other dip netters. It is very important to emphasize that fish harvested with a dip net can be successfully released whereas fish caught in a gill net usually cannot be. In addition to the two exclusive reaches of the Kenai River where subsistence only dipnetting is allowed, subsistence users are also allowed to dip net below the Russian River Falls as well as use a rod and reel. The Ninilchik community also has the opportunity to fish four educational gill nets in marine waters at the mouth of the Ninilchik River as well as other traditional methods in freshwater of the river with a total quota of almost 6,000 salmon. The contention that the existing means and methods of subsistence fishing do not allow adequate opportunity to harvest salmon is simply not true. Our greatest concern is that allowing one or more gill nets to fish in the parts of the Kenai and Kasilof Rivers provided in these proposals will result in harvesting of Chinook salmon, Rainbow Trout and Dolly Varden at a time when every Chinook salmon is important to sustaining these very high value fish. The Kenai River remains in a well documented m ulti -year decline of its world famous king salmon. Approval of this proposal will result in taking kings from their spawning beds which violates sound fishery management. Although large, trophy Rainbow Trout and Dolly Varden may not be experiencing low abundance like Chinook, they are very valuable to local residents and visitors. Regulations for the Kenai require that any Rainbow or Dolly Varden larger than 18" must be released; however, your documentation clearly states that release from a gill net will not be successful. It is not justifiable to kill these fish with gill nets when other subsistence opportunities are unquestionably available. In summary we believe there are very good reasons that proposals such as FP 15 -10 have been rejected in the past and should be rejected every time. During this period of low Chinook salmon abundance, we submit in the strongest way possible that this is not the time to allow additional subsistence fishing in these rivers with gill nets. We ask that you reconsider your decision and reject this proposal. Sincerely, r` Senator Peter A. Micciche Senator Mike Dunleavy Senate District O Senate District E ALASKA STATE LEGISLATURE V OF T,y OA A LASY'� REPRESENTATIVE LES GARA Request for Reconsideration on Fishery Proposal 15 -10 and Fishery Proposal 15 -11: Reconsideration Seeks Solution That Does Not Endanger Prized Wild Rainbow Trout and Dolly Varden, and Dwindling Runs of Prized Wild King Salmon January 29, 2015 Office of Subsistence Management U.S. Fish and Wildlife Service 1011 E. Tudor Road, Mail Stop 121 Anchorage, Alaska 99503 Dear Members of the Federal Subsistence Board: Statement of Legal Standing and Basis for Reconsideration Request I am an Alaskan who regularly fishes the Kenai River for Rainbow trout, Dolly Varden, and Sockeye Salmon and 1 hope to have the opportunity to fish for King Salmon when that species recovers. I also represent thousands of Alaskans who fish the Kenai and Kasilof Rivers- people who share my interest in seeing all of these fisheries thrive. For these reasons, I ask the board to reconsider the new management strategy allowing a subsistence fishery in the Kenai River drainage under the terms of Fishery Proposal 15 -10. The board's decision on the Kasilof River (Fishery Proposal 15 -11) may result in less damage, but still presents some but lesser concerns. I believe all these issues can be alleviated with more narrowly tailored regulations. At this point, the regulations do not appear to have been published in the Federal Register, so I will refer to the proposed regulations by their Fishery Proposal (FP) number. It is also not clear that that Federal Subsistence Board properly posted notice of the meeting. I have spoken to many individuals who said they were unaware of the meetings (although people do frequently miss posted government notices). That is an issue I hope will be looked at, although it is not the main concern I present in this request. My primary concern is with the merits of killing large numbers of prized wild King Salmon, Rainbow trout and Dolly Varden, especially when ample nutrition can be achieved through a well- managed Sockeye Salmon fishery. Over a million Sockeye Salmon go up the Kenai and Kasilof rivers each year- numbers that exceed prized, delicate King, Rainbow trout and Dolly Varden runs by magnitudes. Continued smart management of this fishery can and will ensure that subsistence rights are preserved and local communities are able to meet their nutritional needs. Fisheries Proposal 15 -10: Damage to Prized Wild Kenai River Rainbow Trout, Dolly Varden and King Salmon Populations The Kenai River holds some of the world's largest wild, natural strain Rainbow trout and Dolly Varden. While in the Lower 48 a 20 -inch fish is rare, in Alaska we have managed our fisheries carefully so that the Kenai River still holds these fish in the 20 to over 30 inch - range. These fish, and the fishing opportunities coveted by Alaskans of all walks of life, will be endangered by this regulation. Endangering the Opportunity of Alaskans to Enjoy an Unparalleled Road System Rainbow Trout and Dolly Varden Fishery The new regulations allow the take, presumably, of trout and Dolly Varden less than 18 inches in size. But gillnets are indiscriminate in the fish they catch. They will catch prized, unique 20 - and over 30 inch Rainbows and Dolly Varden that will likely die upon release from the gillnet. Unfortunately, there is no way to enforce a number limit and bycatch with even a single gillnet set may vastly exceed the proposed allowable take of Rainbow trout and Dolly Varden. This is especially likely in one of the spots designated for gillnetting (the highly productive area known as "Rainbow Alley" below Skilak Lake). This sport fishery is also unique in that it provides access to Rainbow trout and Dolly Varden fishing for people who do not have the money to travel to remote parts of the state. Damaging a wild trout fishery when nutrition from a Sockeye subsistence fishery would be sufficient is poor management policy that will harm valuable Rainbow trout and Dolly Varden populations, and the fair access to these prized, unique fish by all Alaskans. There are less harmful alternatives in other parts of the river. Rainbow trout and Dollis do not populate the lower stretch of the Kenai River in large numbers. Furthermore, the state already allows an "educational" subsistence fishery in the Lower Kenai River for this purpose, and if needed, that fishery can likely be expanded in a responsible manner. The state may also increase dipnet limits if they are deemed inadequate to meet nutritional needs. The New Regulations Threaten Our Ability to Bring Back Decimated Runs of Prized Kenai King Salmon in Which All Alaskans Have a Substantial Interest Sixty -foot gillnets will also further threaten the already reduced King Salmon population on the Kenai River. Alaskans of all backgrounds want to see this fishery recover. The prized Kenai River early King Salmon run has been nearly decimated, falling by roughly 90x/0, from 20,012 fish in 1988 to 2,049 fish in 2013. Late run wild King Salmon on the Kenai have fallen in number from 81,700 in 1988 to 19,700 by 2013. Alaska Department of Fish & Game has periodically closed or severely restricted the King Salmon fishery in recent years in response to these declining numbers. Kenai Kings are such a special strain that the world record King Salmon, at 97 pounds, came from this river in 1985. Sixty foot gillnets, like those allowed in the proposed regulations, will take substantial numbers of migrating and spawning kings, as those fish swim deeper and further from the shore than Sockeye Salmon. The board's proposal should not include gillnets that intentionally or accidentally kill King Salmon so long as we are working hard to re- establish what was once a run so ample that Alaskans flocked to the Kenai River to try to catch this uniquely large strain of King Salmon. Sockeye Salmon Runs Provide Sufficient Access to Nutrition for Subsistence Fishermen, and can be Enhanced if Needed in the Lower River With State Cooperation. The healthy Kenai and Kasilof Sockeye fisheries can and do provide ample nutrition to satisfy the subsistence needs of local communities. The Kenai and Kasilof Rivers return over a million Sockeye Salmon a year, leaving enough for subsistence, commercial and sport fishermen if managed properly. Currently the state allows dipnet fisheries for all Alaskans at the Lower Kenai River and Kasilof Rivers in a manner that minimizes the chance Kings will be intercepted, and in areas where Rainbow trout and Dolly Varden are nearly non - existent. The current fisheries allow the take of up to 35 Sockeye Salmon, additional numbers of pinks and flounder, and an extra ten fish for each family member. Proxy permits are allowed as well for those unable to fish. In addition, substantial nutrition, through traditional subsistence fishing for Sockeye Salmon (the primary historical subsistence fish taken by First Alaskans) is available through other permits. Finally, all Alaskans- regardless of residence or race- can purchase and participate in shore set net fisheries and sport fisheries. One alternative would be to fund the purchase of one or more of these existing sites for subsistence use. In addition, Alaska Native groups from Ninilchik are allowed subsistence fisheries in the Lower Kenai River- areas that do not interfere with Rainbow or Dolly Varden populations. The take allowed in these "educational" subsistence fisheries allows for the capture of 5,850 salmon annually. There is no evidence that the dipnet and educational fisheries, which grant a substantial preference to these groups above the rights of other Alaskans, fail to provide sufficient nutrition and traditional subsistence opportunities in a manner that also respects the rights of other Alaskans. If that limit needs to be increased the state should be asked to reconsider the current limit. Fishery Proposal and Regulation FP 15 -11: Minimizing the Unintentional Take of King Salmon Alaskans of all backgrounds have dwindling opportunities to catch road system King Salmon. These fisheries have been closed frequently in recent years in many areas, including the Susitna Drainage and Kenai Peninsula. Sockeye are abundant and can meet traditional individual and group nutrition needs. But 60 -foot gillnets on the Kasilof will incidentally take too many King Salmon, further reducing the rights and enjoyment of the almost 600,000 Alaskans who do not qualify for a subsistence preference. I request that a shorter gillnet be used on the Kasilof after a responsible number of King Salmon are taken on that river. This alternative would allow continued Sockeye fishing, and minimize the incidental kill of Kings. Conclusion Alaskans are united in their desire to protect our unparalleled, wild stocks of world class fish. Subsistence, sport, and commercial fishermen share an interest in smart management policies that work towards the continued vitality of this resource. Subsistence opportunities for healthy runs of nutritious Sockeye Salmon can be allowed without damaging the interests of all Alaskans in protecting our King Salmon, Rainbows and Dolly Varden. The current regulations pit Alaskan against Alaskan for reasons that have nothing to do with providing an ample source of nutritious Sockeye Salmon to First Alaskans. We should continue to protect Alaska's uniquely large, healthy populations of Rainbow trout, and allow Alaskans of all races and backgrounds access to the fisheries we have worked so hard to protect. And we should continue to work to rebuild what was once the world's greatest road system King Salmon fishery. The proposed regulations do not do that. For these reasons, I urge the board to reconsider its decision. Sincerely, Representative Les Gara Cc: Governor Bill Walker Pat Pourchot, Special Assistant to the Secretary of the Interior for Alaska Affairs Sam Cotten, Commissioner, Department of Fish and Game Robert Begich, Department of Fish and Game Kenai River Sport Fishing Association Robert Ruffner, Executive Director, Kenai River Watershed Forum Alaska Troufitters Fly Shop, Cooper Landing Kenai River Professional Guide Association Kenai River Special Management Area Advisory Board ADF &G FEDERAL SUBSISTENCE LIAISON TEAM OPTIONS FOR RECOURSE FOLLOWING FEDERAL SUBSISTENCE BOARD ACTIONS MONDAY 9 FEBRUARY 2015 J.YUHAS Following decisions by the Federal Subsistence Board, the following options are available for recourse: *Note that new proposals to reverse decisions made by the Board have a waitingperiod of twoyeaor to be considered within the identified regulatory cycle. Further information on this is contained within the addendum. (see criteria contained in addendum) Any party may bring to the Board a Request for Reconsideration within 60 days of the publication of the decision in question or the effective date of the regulation, whichever comes first. Requests for Reconsideration are often superficially dismissed by the Board with seemingly little consideration, yet are an integral part of "exhausting the administrative process" and building the record for possible viable litigation. Emergency Special Action Request: (nee criteria contained in addendum) *Note that the language used by the federal program under this section referring to "nonsubsistence" uses is applied to all "non federally qualified" uses and in fact applies to subsistence uses under the state program. hU //w wdoiggL, /subsistence/proposal /special action /indetcfm Emergency Special Action Requests may be brought by any party citing that the action is necessary to ensure the continued viability of a fish or wildlife population, to continue subsistence uses of fish or wildlife, or for public safety reasons. The Board may immediately open or close public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for take for subsistence uses, or close public lands to take for nonsubsistence uses of fish and wildlife or restrict the requirements for take for nonsubsistence uses. An Emergency Special Action may be acted upon quickly, sometimes within days of the request, and enjoys only a 60 day duration. The Board may seek Council recommendations on the proposed emergency special action. Such a Council recommendation, if any, will be subject to the requirements of 50 CFR 100.18 - Regulation adoption process(a)(4) (*note contained in addendum). A Secretarial Direction to the Board was issued in 2009 to "show more deference to the RACs," following the 2008 Page 1 of 15 appeal for changes to the federal subsistence process by the Alaska Federation of Natives. The Secretaries provided that the Board could decide against the advice of the RACs for instances in which that advice violates recognized principles of fish and wildlife management. To date the board has increasingly ignored this charge and has seemingly preferred to abrogate its responsibilities to the RACs since this direction was issued, and has done so amidst repeated reminders from the State and others. Temporary Special Action Request: (see criteria contained in addendum) http: /hvww.doigov /subsistence /proposal /special action /indeecfm Temporary Special Action Requests may be brought by any party for the reasons applicable to Emergency Special Actions and is absent the 60 day expiration. The length of any temporary action will be confined to the minimum time period or harvest limit determined by the Board to be necessary under the circumstances. In any event, a temporary opening or closure will not extend longer than the end of the current regulatory cycle. Under the Temporary Special Action structure, the Board may also reopen public lands to nonsubsistence uses if new information or changed conditions indicate that the closure is no longer warranted. Injunction• A federal judge may issue an injunction or restraining order preventing enactment of the Boards actions. Litigation: Aggrieved parties affected by the Boards decision may file a lawsuit in federal court following other unsuccessful attempts to find relief. *addendum on continuing pager ly 2 ADDENDUM: Note that the Federal Re Process accepts fisheries and wildlife proposals on alternate years and is currently accepting proposals for the wildlife regulatory cycle to be decided at the April 2016 meeting of the Federal Subsistence Board Regulatory Process The Federal subsistence regulations are changed through a public process that begins with a call for proposals and culminates in a Federal Subsistence Board meeting, during which the Board acts on proposed changes. htI42://ww\v,doi.gov/subsistence/12rol2osal/­­sLibmit.cfm Submit a Regulatory Proposal How to Prepare Your Proposal There is no form to submit your proposal on; however, it is important that you include the following information: a. Your (the requestor) name, address and telephone number; b. Quote the current regulation(s) with section and paragraph number, if known; c. A description of the regulatory change(s) desired; d. A statement explaining why the change is necessary; e. Proposed wording changes; and f. Any additional information that you (the requestor) believe will help the Federal Subsistence Board in evaluating the proposed change(s). After providing the above information please choose a method below, that works best for you, to submit your proposal(s). How to Submit Your Proposal 1. By mail or hand delivery to: Federal Subsistence Board Office of Subsistence Management Attn: Theo Matuskowitz 1011 E. Tudor Rd., MS -121 Anchorage, AK 99503 2. At any Federal Subsistence Regional Advisory Council meeting (please look under the "Councils" tab for your respective Council's next meeting date and location.) 3 3. On the Web at http: / /www.regulations.gov Questions? Call (800) 478 -1456 or (907) 786 -3888 All proposals and comments, including personal information provided, are posted on the web at http: / /www.regulations.gov. Proposals are not posted on the Office of Subsistence Management's website. Request for Reconsideration Any person who is adversely affected by a new regulation may request that the Federal Subsistence Board reconsider its decision by filing a Request for Reconsideration. A Request for Reconsideration must be submitted in writing to the Federal Subsistence Board within 60 days after a regulation takes effect or is published in the Federal Register, whichever comes first. The written appeal must provide the Board with enough information to show why the action should be reconsidered. The Board will accept a Request for Reconsideration only if it is based upon information not previously considered by the Board; demonstrates that the information used by the Board is incorrect; or demonstrates that the Board's interpretation of information, applicable law, or regulation is in error or contrary to existing law. These guidelines and requirements can be found in 50 CFR Part 100, Subpart B, §100.20. To submit a Request for Reconsideration, please provide the following information: • Name • Address • Telephone number • Fax number • E -mail address • Organization (if applicable) • Provide the regulation that you wish the Board to reconsider and the date of Federal Register publication of that action. • Provide a detailed statement of how you are adversely affected by the action. • Provide a detailed statement of the issues raised by the Board's action, with specific references to: M o information not previously considered by the Board, information used by the Board that is incorrect, o how the Board's interpretation of information, applicable law, or regulation is in error or contrary to existing law. • Describe how you would like the regulation changed. Submit your request by: Mail: Office of Subsistence Management Attn: Subsistence Policy Coordinator 1011 East Tudor Road, Mail Stop 121 Anchorage, Alaska 99503 Fax: (907) 786-3898 E -mail: subsistence(a)fws.aov Special Action Request In This Section: .ANILCA Section 804 A Special Action is an out -of -cycle change in a season, harvest limit, or method of harvest. Special Actions are taken when unusual situations arise, such as a significant change in resource abundance that could not reasonably have been anticipated. The Federal Subsistence Board may take a Special Action to restrict, close, open, or reopen the taking of fish and wildlife on Federal public lands. Such actions are taken to ensure the continued viability of a particular fish or wildlife population, to ensure continued subsistence use, or for reasons of public safety or administration. These guidelines and requirements can be found in 50 CFR Part 100, Subpart B. 6100.19. To submit a Special Action request, please provide the following information: • Name • Address • Telephone number • Fax number • E -mail address • Organization (if applicable) • Describe the action you are requesting. Reference the current regulations you wish to change. • Have there been unusual or significant changes in resource abundance or unusual conditions affecting harvest opportunities that could not reasonably have been anticipated and that potentially could have significant adverse effects on the health of fish and wildlife populations or subsistence users? • Is the requested action needed for reasons of public safety or administration? 5 • What are the extenuating circumstances that necessitate a regulatory change before the next regulatory review? Submit your request by: Mail: Office of Subsistence Management Attn: Subsistence Policy Coordinator 1011 East Tudor Road, Mail Stop 121 Anchorage, Alaska 99503 Fax: (907) 786 -3898 E -mail: subsistence @fws.gov 50 CFR Part 100, Suboart B, $100.19.: Sec. - - - -.19 Special actions. (a) Emergency special actions. In an emergency situation, if necessary to ensure the continued viability of a fish or wildlife population, to continue subsistence uses of fish or wildlife, or for public safety reasons, the Board may immediately open or close public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for take for subsistence uses, or close public lands to take for nonsubsistence uses of fish and wildlife, [[Page 63093]] or restrict the requirements for take for nonsubsistence uses. (1) If the timing of a regularly scheduled meeting of the affected Regional Council so permits without incurring undue delay, the Board may seek Council recommendations on the proposed emergency special action. Such a Council recommendation, if any, will be subject to the requirements of Sec. ----- 18(a)(9).(*nofed below) (2) The emergency action will be effective when directed by the Board, may not exceed 60 days, and may not be extended unless the procedures for adoption of a temporary special action, as set forth in paragraph (b) of this section, have been followed. (b) Temporary special actions. After adequate notice and public hearing, the Board may temporarily close or open public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for subsistence take, or close public lands for the taking of fish and wildlife for nonsubsistence uses, or restrict take for nonsubsistence uses. (1) The Board may make such temporary changes only after it determines that the proposed temporary change will not interfere with the conservation of healthy fish and wildlife populations, will not be detrimental to the long -term subsistence use of fish or wildlife resources, and is not an unnecessary restriction on nonsubsistence users. The Board may also reopen public lands to nonsubsistence uses if new information or changed conditions indicate that the closure is no longer warranted. (i) Prior to implementing a temporary special action, the Board will consult with the State of Alaska and the Chairs of the Regional Councils of the affected regions. 6 (ii) If the timing of a regularly scheduled meeting of the affected Regional Council so permits without incurring undue delay, the Board will seek Council recommendations on the proposed temporary special action. Such Council recommendations, if any, will be subject to the requirements of Sec. ---- .18(a)(4). (2) The length of any temporary action will be confined to the minimum time period or harvest limit determined by the Board to be necessary under the circumstances. In any event, a temporary opening or closure will not extend longer than the end of the current regulatory cycle. (c) The Board may reject a request for either an emergency or a temporary special action if the Board concludes that there are no time - sensitive circumstances necessitating a regulatory change before the next regular proposal cycle. However, a special action request that has been rejected for this reason may be deferred, if appropriate and after consultation with the proponent, for consideration during the next regular proposal cycle. The Board will consider changes to customary and traditional use determinations in subpart C of this part only during the regular proposal cycle. (d) The Board will provide notice of all regulatory changes adopted via special action by posting the change on the Office of Subsistence Management Web site ( htt2:// ala3ka.fws.gov /asm /index.cfml). When appropriate, notice may also include distribution of press releases to newspapers, local radio stations, and local contacts, as well as direct notification to the proponent and interested parties. The Board will publish notice and reasons justifying the special action in the Federal Register as soon as practicable. (e) The decision of the Board on any proposed special action will constitute its final administrative action. (f) Regulations authorizing any individual agency to implement closures or restrictions on public lands managed by the agency remain unaffected by the regulations in this part. (g) Fish and wildlife may not be taken in violation of any restriction, closure, or change authorized by the Board. Dated: July 13, 2010. Ken Salazar, Secretary of the Interior, Department of the Interior. Beth G. Pendleton, Regional Forester, USDA -- Forest Service. [FR Doc. 2010 -25816 Filed 10- 13 -10; 8:45 am] BILLING CODE 3410 -11 -P; 4310 -55 -P 50 CFR ioo.18 - Regulation adoption process. (* Reaomendations of the RegdonalAdvisoiy Councils pray be nvjected on the basis of the <rztena underlined below) (4) After the comment period the Board shall meet to receive public testimony and consider the proposals. The Board shall consider traditional use patterns when establishing harvest levels and seasons, and methods and means. The Board may choose not to follow any recommendation which the Board determines is not supported by substantial evidence, violates recognized principles of fish and wildlife conservation, or would be detrimental to the satisfaction of subsistence needs. If a recommendation approved by a Regional 7 Council is not adopted by the Board, the Board shall set forth the factual basis and the reasons for its decision in writing to the Regional Council. INJUNCTIVE RELIEF: 5 U.S. Code § 552b - Open meetings httl://www.law.cornell.edu /rules /frcp /rule Sz (h) (1) The district courts of the United States shall have jurisdiction to enforce the requirements of subsections (b) through (f) of this section by declaratory judgment, injunctive relief, or other relief as may be appropriate. Such actions may be brought by any person against an agency prior to, or within sixty days after, the meeting out of which the violation of this section arises, except that if public announcement of such meeting is not initially provided by the agency in accordance with the requirements of this section, such action may be instituted pursuant to this section at any time prior to sixty days after any public announcement of such meeting. Such actions may be brought in the district court of the United States for the district in which the agency meeting is held or in which the agency in question has its headquarters, or in the District Court for the District of Columbia. In such actions a defendant shall serve his answer within thirty days after the service of the complaint. The burden is on the defendant to sustain his action. In deciding such cases the court may examine in camera any portion of the transcript, electronic recording, or minutes of a meeting closed to the public, and may take such additional evidence as it deems necessary. The court, having due regard for orderly administration and the public interest, as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of this section or ordering the agency to make available to the public such portion of the transcript, recording, or minutes of a meeting as is not authorized to be withheld under subsection (c) of this section. (2) Any Federal court otherwise authorized by law to review agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of this section and afford such relief as it deems appropriate. Nothing in this section authorizes any Federal court having jurisdiction solely on the basis of paragraph (1) to set aside, enjoin, or invalidate any agency action (other than an M action to close a meeting or to withhold information under this section) taken or discussed at any agency meeting out of which the violation of this section arose. FEDERAL RULES OF CIVIL PROCEDURE TITLE VIII. PROVISIONAL AND FINAL REMEDIES Rule 65. Injunctions and Restraining Orders http:/ /www.laNv.cornell.edu /rulesjfrcp /rule 6, (a) PRELIMINARY INJUNCTION. (1) Notice. The court may issue a preliminary injunction only on notice to the adverse party. (2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial. (b) TEMPORARY RESTRAINING ORDER. (1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. (2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry —not to exceed 14 days —that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record. (3) Expediting the Preliminary- Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party 9 who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order. (4) Motion to Dissolve. On 2 days' notice to the party who obtained the order without notice —or on shorter notice set by the court —the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires. (c) SECURITY. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. (d) CONTENTS AND SCOPE OF EVERY INJUNCTION AND RESTRAINING ORDER. (1) Contents. Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail —and not by referring to the complaint or other document —the act or acts restrained or required. (2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties' officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B). (e) OTHER LAws NOT MODIFIED. These rules do not modify the following: (1) any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee; (2) 28 U.S.C. 52361, which relates to preliminary injunctions in actions of interpleader or in the nature of interpleader; or (3) 28 U.S.C. 52284, which relates to actions that must be heard and decided by a three -judge district court. (f) COPYRIGHT IMPOUNDMENT. This rule applies to copyright - Impoundment proceedings. NOTES (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) NOTES OF ADVISORY COMMITTEE ON RULES -1937 10 Note to Subdivisions (a) and (b). These are taken from U.S.C., Title 28, [former] §381 (Injunctions; preliminary injunctions and temporary restraining orders). Note to Subdivision (c). Except for the last sentence, this is substantially U.S.C., Title 28, [former] §382 (Injunctions; security on issuance of). The last sentence continues the following and similar statutes which expressly except the United States or an officer or agency thereof from such security requirements: U.S.C., Title 15, § §77t(b), 78u(e), and 79r(f) (Securities and Exchange Commission). It also excepts the United States or an officer or agency thereof from such security requirements in any action in which a restraining order or interlocutory judgment of injunction issues in its favor whether there is an express statutory exception from such security requirements or not. See U.S.C., [former] Title 6 (Official and Penal Bonds) for bonds by surety companies. Note to Subdivision (d). This is substantially U.S.C., Title 28, [former] §383 (Injunctions; requisites of order; binding effect). Note to Subdivision (e). The words "relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee" are words of description and not of limitation. Compare [former] Equity Rule 73 (Preliminary Injunctions and Temporary Restraining Orders) which is substantially equivalent to the statutes. For other statutes dealing with injunctions which are continued, see e.g.: U.S.C., Title 28: §46 [now 2324] (Suits to enjoin orders of Interstate Commerce Commission to be against United States) §47 [now 2325] (Injunctions as to orders of Interstate Commerce Commission; appeal to Supreme Court; time for taking) §378 [former] (Injunctions; when granted) §379 [now 2283] (Injunctions; stay in State courts) §380 [now 1253, 2101, 2281, 2284] (Injunctions; alleged unconstitutionality of State statutes; appeal to Supreme Court) §380a [now 1253, 2101, 2281, 2284] (Injunctions; constitutionality of Federal statute; application for hearing; appeal to Supreme Court) U.S.C., Title 7: §216 (Court proceedings to enforce orders; injunction) §217 (Proceedings for suspension of orders) U.S.C., Title 15: §4 (Jurisdiction of courts; duty of district attorney; procedure) §25 (Restraining violations; procedure) 11 §26 (Injunctive relief for private parties; exceptions) §77t(b) (Injunctions and prosecution of offenses) NOTES OF ADVISORY COMMITTEE ON RULES -1946 AMENDMENT It has been held that in actions on preliminary injunction bonds the district court has discretion to grant relief in the same proceeding or to require the institution of a new action on the bond. Russell v. Farley (1881) 105 U.S. 433, 466. It is believed, however, that in all cases the litigant should have a right to proceed on the bond in the same proceeding, in the manner provided in Rule 73(f) for a similar situation. The paragraph added to Rule 65(c) insures this result and is in the interest of efficiency. There is no reason why Rules 65(c) and 73(f) should operate differently. Compare §50(n) of the Bankruptcy Act, 11 U.S.C. §78(n), under which actions on all bonds furnished pursuant to the Act may be proceeded upon summarily in the bankruptcy court. See 2 Collier on Bankruptcy (14th ed. by Moore and Oglebay) 1853 -1854. NOTES OF ADVISORY COMMITTEE ON RULES -1948 AMENDMENT Specific enumeration of statutes dealing with labor injunctions is undesirable due to the enactment of amendatory or new legislation from time to time. The more general and inclusive reference, "any statute of the United States ", does not change the intent of subdivision (e) of Rule 65, and the subdivision will have continuing applicability without the need of subsequent readjustment to labor legislation. The amendment relative to actions of interpleader or in the nature of interpleader substitutes the present statutory reference and will embrace any future amendment to statutory interpleader provided for in Title 28, U.S.C., §2361. The Act of August 24, 1937, provided for a district court of three judges to hear and determine an action to enjoin the enforcement of any Act of Congress for repugnance to the Constitution of the United States. The provisions of that Act dealing with the procedure for the issuance of temporary restraining orders and interlocutory and final injunctions have been included in revised Title 28, U.S.C., §2284, which, however, has been broadened to apply to all actions required to be heard and determined by a district court of three judges. The amendatory saving clause of subdivision (e) of Rule 65 has been broadened accordingly. NOTES OF ADVISORY COMMITTEE ON RULES -1966 AMENDMENT Subdivision (a)(2). This new subdivision provides express authority for consolidating the hearing of an application for a preliminary injunction with the trial on the merits. The authority can be exercised with particular profit when it appears that a substantial part of evidence offered on the application will be 12 relevant to the merits and will be presented in such form as to qualify for admission on the trial proper. Repetition of evidence is thereby avoided. The fact that the proceedings have been consolidated should cause no delay in the disposition of the application for the preliminary injunction, for the evidence will be directed in the first instance to that relief, and the preliminary injunction, if justified by the proof, may be issued in the course of the consolidated proceedings. Furthermore, to consolidate the proceedings will tend to expedite the final disposition of the action. It is believed that consolidation can be usefully availed of in many cases. The subdivision further provides that even when consolidation is not ordered, evidence received in connection with an application for a preliminary injunction for a preliminary injunction which would be admissible on the trial on the merits forms part of the trial record. This evidence need not be repeated on the trial. On the the other hand, repetition is not altogether prohibited. That would be impractical and unwise. For example, a witness testifying comprehensively on the trial who has previously testified upon the application for a preliminary injunction might sometimes be hamstrung in telling his story if he could not go over some part of his prior testimony to connect it with his present testimony. So also, some repetition of testimony may be called for where the trial is conducted by a judge who did not hear the application for the preliminary injunction. In general, however, repetition can be avoided with an increase of efficiency in the conduct of the case and without any distortion of the presentation of evidence by the parties. Since an application for a preliminary injunction may be made in an action in which, with respect to all or part of the merits, there is a right to trial by jury, it is appropriate to add the caution appearing in the last sentence of the subdivision. In such a case the jury will have to hear all the evidence bearing on its verdict, even if some part of the evidence has already been heard by the judge alone on the application for the preliminary injunction. The subdivision is believed to reflect the substance of the best current practice and introduces no novel conception. Subdivision (b). In view of the possibly drastic consequence of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal, notice to be given. See the emphatic criticisms in Pennsylvania Rd. Co. 13 v. Transport Workers Union, 278 F.2d 693, 694 (3d Cir. 1960);Arvida Corp. v. Sugarman, 259 F.2d 428, 429 (2d Cir. 1958); Lummus Co. v. Commonwealth Oil Ref. Co., Inc., 297 F.2d 80, 83 (2d Cir. 1961), cert. denied, 368 U.S. 986 (1962). Heretofore the first sentence of subdivision (b), in referring to a notice "served" on the "adverse party" on which a "hearing" could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all. Before notice can be dispensed with, the applicant's counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard. The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice when the circumstances warrant. Subdivision (c). Original Rules 65 and 73 contained substantially identical provisions for summary proceedings against sureties on bonds required or permitted by the rules. There was fragmentary coverage of the same subject in the Admiralty Rules. Clearly, a single comprehensive rule is required, and is incorporated as Rule 65.1. NOTES OF ADVISORY COMMITTEE ON RULES -1987 AMENDMENT The amendments are technical. No substantive change is intended. COMMITTEE NOTES ON RULES -2001 AMENDMENT New subdivision (f) is added in conjunction with abrogation of the antiquated Copyright Rules of Practice adopted for proceedings under the 1909 Copyright Act. Courts have naturally turned to Rule 65 in response to the apparent inconsistency of the former Copyright Rules with the discretionary impoundment procedure adopted in 1976, 17 U.S.C. §503(a). Rule 65 procedures also have assuaged well- founded doubts whether the Copyright Rules satisfy more contemporary requirements of due process. See, e.g., Religious Technology Center v. Netcom On -Line Communications Servs., Inc., 923 F.Supp. 1231, 1260 -1265 (N.D.Cal.1995); Paramount Pictures Corp. v. Doe, 821 F.Supp. 82 (E.D.N.Y.1993); WPOW, Inc. v. MRLI Enterprises, 584 F.Supp. 132 (D.D.C.1984). A common question has arisen from the experience that notice of a proposed impoundment may enable an infringer to defeat the court's capacity to grant 14 effective relief. Impoundment may be ordered on an ex parte basis under subdivision (b) if the applicant makes a strong showing of the reasons why notice is likely to defeat effective relief. Such no- notice procedures are authorized in trademark infringement proceedings, see 15 U.S.C. §1116(d), and courts have provided clear illustrations of the kinds of showings that support ex parte relief. See Matter of Vuitton et Fils S.A., 606 F.2d 1 (2d Cir.1979); Vuitton v. White, 945 F.2d 569 (3d Cir.1991). In applying the tests for no- notice relief, the court should ask whether impoundment is necessary, or whether adequate protection can be had by a less intrusive form of no- notice relief shaped as a temporary restraining order. This new subdivision (f) does not limit use of trademark procedures in cases that combine trademark and copyright claims. Some observers believe that trademark procedures should be adopted for all copyright cases, a proposal better considered by Congressional processes than by rulemaking processes. Changes Made After Publication and Comments No change has been made. COMMITTEE NOTES ON RULES -2007 AMENDMENT The language of Rule 65 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of former Rule 65(c) referred to Rule 65.1. It is deleted as unnecessary. Rule 65.1 governs of its own force. Rule 65(d)(2) clarifies two ambiguities in former Rule 65(d). The former rule was adapted from former 28 U.S.C. §363, but omitted a comma that made clear the common doctrine that a party must have actual notice of an injunction in order to be bound by it.Amended Rule 65(d) restores the meaning of the earlier statute, and also makes clear the proposition that an injunction can be enforced against a person who acts in concert with a party's officer, agent, servant, employee, or attorney. Changes Made After Publication and Comment. See Note to Rule 1, supra. COMMITTEE NOTES ON RULES -2009 AMENDMENT The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6. 15 SEAN PARNELL, GOVERNOk P. O. SOX 115526 DEPARTMENT OF FISHL AND GA)VIE JUNEAU, AK 99811 -5526 PHONE: (907) 465 -4100 (907) 465 -2332 OFFICE OF THE COMMISSIONER FAX 6 January, 2011 Mr. Tim Towarak, Chairman Federal Subsistence Board Office of Subsistence Management U. S. Department of the Interior 3601 C Street, Suite 1030 Anchorage, AK 99503 RE: FRFR 09 -01 and FP 09 -07 Ninilchik C &T Kenai River Area fish stocks Dear Mr. Towarak: As provided for in Subpart B, 36 CFR §242.20 and 50 CFR § 100.20, of Subsistence Management Regulations for federal public lands in Alaska, the Alaska Department of Fish and Game hereby requests that the Federal Subsistence Board reconsider and rescind its decisions of November 12, 2009, and November 9, 2010, on Fisheries Request for Reconsideration RFR 09- 01 and related Fisheries Proposal FP 09 -07. The Board improperly reconsidered a proper denial of FP 09 -07 and improperly granted a customary and traditional use (C &T) determination to Ninilchik (including Happy Valley) to all fish including resident species in the Kenai River Area, contrary to the evidence and detrimental to subsistence by diluting the C &Ts of other communities in the area that have demonstrated evidence of C &T use of these fish stocks. These decisions will purportedly be effective upon publication in the Federal Register. The enclosed Request for Reconsideration details the reasons for our request. The State requests an opportunity to further explain these procedural and factual errors during Board deliberations on this request. We also request that the Board act expeditiously. Sincerely, �uk 1 Kelly Hepler Assistant Commissioner Enclosures REQUEST FOR RECONSIDERATION OF FEDERAL SUBSISTENCE BOARD ACTIONS ON FRFR 09 -01 AND FP 09 -07 The State of Alaska (State), through its Department of Fish and Game, respectfully requests that the Federal Subsistence Board (Board) reconsider, rescind, repeal, and correct its actions taken on November 12, 2009, and November 9, 2010, upon Fisheries Request for Reconsideration RFR 09 -01 and related Fisheries Proposal FP 09 -07.1 As set out at 36 CFR §242.20 and 50 CFR §100.20, reconsideration is warranted because those Board actions were based on incorrect information and/or because, in taking those actions, the Board's interpretation of information, applicable law, or regulation was in error or contrary to existing law. The Board improperly reconsidered a proper denial of FP 09 -07 and improperly granted a customary and traditional use (C &T) determination to Ninilchik (including Happy Valley) to all fish, including resident species, in the Kenai River Area, contrary to the evidence as described in three points below. In addition, Board action granting C &T to those who do not qualify and not based on evidence undermines ANILCA and is detrimental to subsistence by purposefully diminishing the availability of resources to those C &T users that have demonstrated evidence of customary and traditional use of these fish stocks. First, the Board improperly accepted a request for reconsideration on November 12, 2009, contrary to the analysis and recommendation of its staff and without any basis satisfying the Board's regulation on reconsideration. A desire to re- evaluate a prior decision based on the same evidence without identifying potential error is not a valid basis for reconsideration. Second, Board C &T action on November 9, 2010, was contrary to the Board's own regulations and unsupported by substantial evidence — for reasons set out in the transcript of Board meeting proceedings (e.g., pages 53 -56 and 63 -74) and in the record referenced there, including previous written and oral comments. That record includes Board proceedings on September 13, 2007, and January 14, 2009, at which the Board twice rejected that C &T proposal upon considering the evidence and analyses presented, including State papers and Board staff analysis .2 The Board previously determined that stocks of rainbow trout, lake trout, Dolly Varden, and other resident species within federal boundaries in the Kenai River area constitute distinct stocks which residents of Ninilchik have not customarily and traditionally taken in meaningful numbers. The only documented use of those stocks was by 0 -1% of the Ninilchik community for the two years surveyed. Ninilchik's take of those distinct resident stocks has been too small and infrequent to demonstrate a consistent, long -term pattern of community use under regulations governing Board C &T determinations. These deficiencies and the different types of available information were also presented and thoroughly explained at the Board meetings on September 1 Board actions which are the subject of this request for reconsideration (RFR) are not yet published, and the State reserves the right to supplement this RFR. It is also the State's position that, under the circumstances presented, it does not have to make this RFR in order to exhaust administrative remedies. However, this RFR provides the Board with reasonable opportunity to address State grievances immediately and thereby resolve the matter without resort to other legal remedies available to the State. Transcripts of Board meetings are accessible on the OSM website. See especially September 13, 2007 Board Mtg. Tr. pp. 17 -19, 24 -28, 30 -33 and January 14, 2009 Board Mtg. Tr. pp. 184 -190 and 192 -197. 13, 2007, and January 14, 2009, including in State papers to the Board dated March 8, 2007 (Enclosure 1) and April 30, 2007 (Enclosure 2) ignored by Board staff and the Board in their analysis and deliberations on RFR 09 -01 and FP 09 -07. As the recent OSM Executive Summary for RFR 09 -01 reported, "There is no new information to consider for Proposal FP07 -09 since it was last addressed by the Federal Subsistence Board in January 2009." The Board's reversal on November 9, 2010, is unsupported by the available evidence. Third, the Board is dependent upon legal counsel for guidance; however, the Board action on November 9, 2010, was unfairly predisposed in its C &T action by an internal July 12, 2010, memorandum of its legal counsel that was prejudicial against the State. Counsel characterized the State as "simplistic," "plain wrong," run by hunting groups "much motivated by curly horns, very little by winter meats," and seeking to `restrict subsistence use" and "keep it ... small "a by "flyspecking every jot and jiggle of the Board's determinations." (Enclosure 3, distributed during November 9. 2010, Board Mtg. Tr. Pages 81, 85)) The relatively new Board members were presented with this purportedly "legal" analysis that packaged personal biases against the State and the general recreational hunting community as legal authority instead of reviewing the regulations and previous record of evidence that persuaded their predecessors on the Board to decide in 2007 and again in 2009 that there was no evidence to support a customary and traditional use by Ninilchik. Accordingly, the Board is respectfully requested to reconsider, rescind, repeal, and correct its improper, incorrect, and unlawful actions taken with respect to RFR 09 -01 and FP 09 -07. DATED: I ldao t i STATE OF ALASKA COMMISSIONER ' Board counsel memorandum also asserted that "ADF &G argues often and long for the perceived necessity of more and more `substantial evidence' — without ever specifying what it thinks such evidence is." To the contrary, the State has explained that necessary degree of evidence several times, in writing and at Board meetings, including at pages 10 -11 of Enclosure 2 provided to the Board in 2007 in relation to the Ninilchik C &T proposal, but not provided to the Board revisiting that issue on November 9, 2010.