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As Kuskokwim fishing lawsuit grows, lawyers say subsistence could be affected across Alaska

Kusko-fish-wheel.jpeg
Charlotte Bodak
/
National Park Service
Residents of Nikolai, Alaska are seen building a fish wheel on the Kuskokwim River in June 2013 in this image from a National Park Service documentary. (Image by National Park Service/Charlotte Bodak)

A legal dispute between the U.S. government and the state of Alaska about subsistence fishing on the Kuskokwim River is growing, and a leading Native corporation says it could endanger subsistence hunting and fishing rights across Alaska.

In a filing this month, attorneys representing Ahtna Inc. said the state is arguing a position that — if upheld by a federal judge — could overturn the famed Katie John decisions that confirmed preferential subsistence hunting and fishing rights for rural Alaskans on federal lands and waters here.

“It’s a really big deal, and they’re kind of being sneaky about it,” said Anna Crary, an attorney representing Ahtna.

For years, state and federal officials have issued conflicting orders opening and closing salmon fishing on the Kuskokwim River in the Yukon Delta National Wildlife Refuge. These conflicts confused fishermen.

The state’s openings allowed all Alaskans to fish; the federal openings only allowed qualified subsistence users to fish.

In May, the federal government sued the state, seeking an injunction to block the state’s actions.

One month later, a federal judge ruled in favor of the federal government, issuing an order that temporarily prevents the Alaska Department of Fish and Game from opening gillnet fishing.

Meanwhile, the case is continuing toward a final, permanent result.

Consequences beyond the Kuskokwim

In a filing Thursday and in prior court documents, attorneys representing the state said Fish and Game should be in charge of deciding openings, among other reasons, because the Kuskokwim River “is not ‘public land’ under ANILCA.”

The Alaska National Interest Lands Conservation Act, a federal law, mandates preferential treatment for rural fishermen and hunters.

Because the Alaska Constitution mandates equal treatment for all fishermen and hunters, it’s illegal for the state to run a rural-preference program.

If the Kuskokwim is public land, the state — not the federal government — is in charge, and there’s no rural preference.

The definition of “public land” determines where preferential treatment applies, and a series of cases known as the Katie John decisions interpret how the federal programs run.

If the Kuskokwim is not public land, many other rivers may not be public either, overturning much of the legal ground beneath the Katie John decisions.

“If successful, the state’s attack upon the application of the rural priority to navigable waters will have far-reaching consequences extending well beyond the Kuskokwim River,” Ahtna’s attorneys said.

Arsenal of arguments

The state’s argument that the Kuskokwim River is not “public land” is one of seven affirmative defenses raised by the state in the lawsuit.

That makes the argument just one of multiple weapons in the state’s legal arsenal, and it may not be used, Crary said.

“I think that the state is using or raising a number of other arguments that it appears to be prioritizing,” she said. “But in the event that those arguments are not successful, what the state is doing is preserving for itself the opportunity to litigate that issue.”

Asked whether it is attempting to overturn Katie John, the Alaska Department of Law did not answer directly.

“We are in the very early stages of litigation,” said Patty Sullivan, communications director for the Alaska Department of Law, which is representing the state in the lawsuit. “The purpose of the (filing) is to preserve any potential defenses or claims, which will be fully evaluated and developed as the case proceeds. We are continually in the process of determining when and how to raise the appropriate claims and defenses in order to best represent Alaska on this matter of utmost importance.”

“Alaska’s right to manage its fish and game resources is critically important to our social, cultural and economic well-being,” Sullivan said. “The right to manage our resources was a primary driver for our statehood and was granted to our state under its statehood compact. The state primacy to manage its resources was not changed with the passage of ANILCA.”

“We believe that what the government is seeking would expand federal authority beyond any statutory justification and would undermine the careful balance between state and federal authority reached in ANILCA,” Sullivan said.

In 2018, when the U.S. Supreme Court considered the boundaries of state and federal control in a case known as Sturgeon, the state urged the court to leave Katie John precedent in place.

Since then, the state has pushed back against actions by the Federal Subsistence Board, which operates under that precedent.

In addition to the Kuskokwim lawsuit, the state has challenged the board’s ability to open special hunting seasons and regulate hunting in other ways. After losing in Alaska District Court, the state has appealed its loss to the 9th Circuit Court of Appeals.

The Department of Law appears to be readying itself for the possibility of a lengthy legal battle over the Kuskokwim River as well.

In a public notice published Friday, the Department of Law said it plans to hire a private firm to represent the state in the Kuskokwim case. It estimates that fighting the case in federal district court will cost $250,000.

That estimate was accompanied by a cautionary note: “It is not possible to accurately estimate the total amount of this contract, as it may be settled, or appealed and continued to be litigated, even as far as the Supreme Court.”

James Brooks | Alaska Beacon