Editor’s note: This is a developing story that will be updated later today. Here is the link to the U.S. Supreme Court’s website for its latest orders.
For Alaskans who depend on wild fish and game, a big question loomed on Friday in the highest court of the land. The U-S Supreme Court met to decide whether to grant the state’s request to re-open a decades-long battle over subsistence. The United States Supreme Court has declined to do so in the past. But on Monday, the court will announce what it decided at Friday’s calendar conference.
The case involves a subsistence salmon fishery on the Kuskokwim River, in which the federal government sued the state in a dispute that goes back to the 2021 fishing season.
Last August, a federal appeals court sided with federal fishery managers. The decision from the 9th Circuit Court of Appeals follows an earlier one from U.S. District Court Judge Sharon Gleason. Both courts agreed with federal wildlife managers that the state failed to uphold a rural subsistence priority on the Kuskokwim River, as mandated by federal law.
In September, the Dunleavy administration asked the U.S. Supreme Court to weigh in, to protect state sovereignty and Alaska’s jurisdiction over its navigable waters.
The Kuskokwim River of Southwest Alaska may be long, wide and muddy. But in federal courts so far, the issue has been crystal clear. In areas where the river cuts through federal land, the federal government has the right to manage for a rural subsistence priority in times of shortage.
But in a 2021 fight over salmon management on the Kuskokwim, the state developed fishing regulations that conflicted with the federal mandate. It opened the river to the entire state for subsistence fishing, while federal managers invoked the rural priority. They worried about the repeated failure of salmon runs to return to the river in sufficient numbers.
The Kuskokwim River Intertribal Fishing Commission is one of four tribal groups which sided with the federal government in this dispute.
Their attorney, Tanner Amdur-Clark is cautiously optimistic that the U.S. Supreme Court will stay out of this fish fight.
“The Supreme Court only takes a limited number of cases. It only takes cases of national significance,” Amdur-Clark said. “This is just a case about Alaska, about a statute that only applies in Alaska, where the 9th Circuit has ruled on this three times now.”
Amdur-Clark is referring to the landmark Katie John case, also known as the Katie John Trilogy – a fight waged by an Ahtna Athabascan elder over her right to take salmon in her family’s ancestral fishing grounds, waters that also cross federal lands.
The Alaska National Interest Lands Conservation Act, or ANILCA, is at the heart of this battle – legislation Congress passed 45 years ago. It spells out a rural subsistence priority on federal lands – protections affirmed in the successive Katie John court battles.
Bob Anderson is one of the attorneys who represented the late Katie John in the early years of litigation. Although the Katie John decisions have remained in place, he’s worried.
“I think there is a real threat, if the Supreme Court grants review in this Alaska versus U.S. case,” Anderson said. “The effect of the state's current petition for review would be to return full state management, for the most part, to the state of Alaska — and get the federal government pretty much out of the business of managing subsistence fishing in Alaska.
Anderson says it would be a huge blow to the federal subsistence priority, as it has worked for the past 30 years.
And after all these years, the problem remains the same. The state’s constitution conflicts with the federal law that allows for a rural preference, which has led to a dual system of state and federal fish and game management.
The state could pass a constitutional amendment to resolve this conflict but has failed to do that. The Supreme Court, though, could potentially settle this question.
Safari Club International is one of the sport hunting and fishing groups which hopes that it does — and it has taken the state’s side in the case.
John Sturgeon, a longtime Alaska Safari Club leader, says he has no problem with subsistence, just federal overreach.
“One of our number one priorities is to get to have one manager of Alaska, Fish and Game, and we think should be the state of Alaska,” Sturgeon said. “And we have absolutely no problem with a rural preference.”
Sturgeon agrees with the state, that federal interference in state fisheries management is causing harm to salmon runs.
“It just doesn't make any sense to have dual management of the same resource by two different government agencies,” Sturgeon said. “It just doesn’t make any sense.”
Sturgeon believes federal managers do a poor job of working with the state.
“There's supposed to be meaningful consultation. When they make a decision, they can tell the state go jump in the lake,” he said.
Sturgeon is perhaps best known as the moose hunter who took his fight to use a hovercraft in the Yukon-Charley Rivers National Preserve to the U.S. Supreme Court and won. The key issue in Sturgeon’s legal battle, as in the Katie John litigation, involved control of navigable waters.
When taking up the Sturgeon case, the Supreme Court set aside the Katie John decisions as a separate matter – and said they would not be addressed in the Sturgeon litigation.
The state, though, in its request to the high court to review last year’s 9th Circuit decision, says the Sturgeon decision on navigable waters needs to be considered, because the federal managers are misinterpreting ANILCA.
Attorneys like Bob Anderson, who have a long history defending Katie John, says it is the state that is misinterpreting what Congress intended under ANILCA.
He also says the state does not have a good track record for protecting subsistence rights.
“It gives the Native community and pro-subsistence groups in Alaska a lot to worry about,” Anderson said, “and we won’t know until Monday morning, early, Alaska time, whether or not they’ve decided to review the case or not.” Anderson says it’s possible that the court could postpone a decision on hearing the case to its next calendar conference. “I’ll be on pins and needles, I guarantee you, at 5:30 on Monday morning,” he said.
It will take four justices to agree to hear the case. And there’s one wild card -- Chief Justice John Roberts -- who represented the State of Alaska in the Katie John case in the early 2000’s. He has intimate knowledge of the issues, so how will that figure in the decision?
In December 2000, Roberts, as a private attorney hired by the state, filed the state’s petition for a full 9th Circuit Court of Appeals review of the subsistence rights case.
In his brief, Roberts wrote:
“There remains an ongoing live case and controversy between the state, on the one hand, and the federal and private appellees, on the other. Appellees continue to maintain that the agencies may regulate fisheries in the navigable waters of Alaska, while the State continues to maintain they would not. The State has challenged the District Court’s final judgement.”
That was 25 years ago, and the arguments haven’t changed.
The only question is: Will the U.S. Supreme Court reversen course and step into the fray to settle this stand-off between the state and federal government?
Please note: KNBA requested comment from Alaska Attorney General Stephen Cox. His office responded with a press statement released on Sept. 15, saying it explains the state’s position on the case.
