A federal judge has ordered the State of Alaska to pay nearly $ 1.8 million dollars in attorney fees to four Native groups, following a long-running fight over subsistence fishing rights in Southwest Alaska.
The case began four years ago when federal managers sued the state for failing to uphold a rural subsistence priority required under federal law. The Native groups joined the lawsuit. And the state ultimately lost a series of court battles, which culminated when the U.S. Supreme Court decided not to hear the case.
For now, this long-standing legal battle over subsistence management is at a standstill. But the legal bill is due — and the cost of that fight has raised new questions.
A clash of state and federal law
The litigation stems from a long-standing conflict between the Alaska Constitution and the Alaska National Interest Lands Conservation Act, or ANILCA, a law Congress passed in 1980. It gives priority to rural Alaskans to hunt and fish in times of scarcity.
But this kind of geographic preference runs up against the Alaska Constitution, which says all Alaskans have an equal right to natural resources. Under Article VIII, courts have ruled that giving preference based on where someone lives is unconstitutional and discriminatory.
The battle over rural priority led the federal government to take over management of subsistence in waters that flow through federal land. On the Kuskokwim River, dual management was especially problematic, because the 700-mile river runs through both state and federal lands.
For many years, state and federal managers shared responsibility for the fishery, with the state usually taking the lead in most of the decisions. But it was never an easy partnership, one that grew more difficult after salmon runs began to fail. In 2020, tensions reached a breaking point, when managers issued conflicting orders for subsistence fishing.
The federal government steps in
Then the federal government did what it rarely does. It sued the state.
The U.S. Fish and Wildlife Service said the state fishery managers violated the rural priority guaranteed under ANILCA, while the state countered that the federal government had overstepped its authority.
As the case moved forward, U.S. District Court judge Sharon Gleason allowed four Native groups to join the lawsuit. As the Interior Department’s top legal advisor during the Biden administration, it was Bob Anderson’s decision to sue the state, which he says dug in for a long fight.
“The state pursued this case aggressively through the district court, the Court of Appeals, and to the U.S. Supreme Court. And so, everybody lawyered up and fought off the state's effort, and they did it successfully.” Anderson said. “Judge Gleason recognized that and awarded this large sum of attorneys' fees.”
In her order granting the Native groups' attorney fees, the federal judge also rejected the state's claim that it had sovereign immunity from paying them under the U.S. Constitution's 11th amendment.
The Association of Village Council Presidents received the largest share – almost $520,000 —followed by the Kuskokwim River Inter-Tribal Fish Commission at about $513,000, and the Alaska Federation of Natives with $405,000. Judge Gleason also awarded $327,000 to two groups from the Eastern Interior of Alaska — Ahtna Inc, the regional Native corporation, and Ahtna Tene Nené, a tribal advocacy group.
The Ahtna groups joined the lawsuit to protect the legacy of Katie John and other Ahtna elders, who fought — and won — a series of court battles to uphold the rural priority for subsistence fishing on Alaska waters.
Anderson says the state forced Alaska Natives to defend rights they already had – and had reaffirmed — in the decades-long Katie John fight. He says that raises a bigger question about why the state chose to fight this battle again.
Anderson says most Alaskans support the right of Rural Alaskans to hunt and fish to put food on the table. “Ask their policy makers and their elected officials,” he said, “Why are you doing this? Why are you spending our money in this way?”
Native leaders: Fighting to protect a way of life
Alaska Federation of Natives President Ben Mallott says the fight took its toll — in time, energy and resources – but was necessary to protect a way of life at the heart of Alaska Native culture.
“The Rural determination in ANILCA is really our only protection, because we need that protection in times of need,” Mallott said. “If we would have lost, we would have to go back to almost square one.”
Mallott says AFN has no regrets about joining the lawsuit but said there are no true winners. He says AFN and other groups spent far more in legal expenses than the court awarded, while the state poured money down a legal drain that could have gone towards real needs in Alaska.
“It’s very frustrating. $1.8 million. That’s a lot of money our communities can be spending on other things,” he said.
Lawmakers question administration’s costly legal fights
Sen. Bill Wielechowski, an Anchorage Democrat, says the subsistence case reflects a broader pattern in Governor Mike Dunleavy’s administration of using litigation to score political points.
“We’ve been trying to reign the administration in on these ideologically driven, legal pursuits,” he said. “And they have cost the state quite a bit of money doing so.”
Wielechowski says these legal battles have become a sore point with lawmakers — so much so, they helped derail last month’s confirmation of Stephen Cox, the governor’s pick for attorney general. Wielechowski pointed to the number of friend-of-the-court briefs Cox filed in outside cases while working for the State Department of Law.
“When you’re filing hundreds of them, which is what he did in a short period of time, all sorts of ideological things that had very little impact on the lives of Alaskans, if any,” Wielechowski said. “But these are things like, should Donald Trump be able to fire the federal reserve chair?”
Wielechowski said that same approach carried over into the subsistence case, prolonging a legal fight that ultimately left the state responsible for $1.8 million in court costs.
State defends its position
From the state’s perspective, key legal questions were at stake in the federal government’s lawsuit over subsistence management on the Kuskokwim.
Acting Attorney General Cori Mills said in a statement that the subsistence lawsuit was neither initiated, nor sought by the State. She said it pursued the legal fight to seek clarity on how the long-running Katie John litigation fit with a newer U.S. Supreme Court decision on control of Alaska’s navigable waters.
In the statement she said, “The state and the federal government will have to work together on managing our fish resources, so that all areas, not just federal areas, have sufficient subsistence opportunity.”
Alaska Department of Fish and Game Commissioner Doug Vincent-Lang also said in a statement that it was unfortunate for the state to have been put in a position by the federal government to defend the State Constitution and the right to manage in the best interest of all Alaskans.
“We remain committed to sustainable management and will continue fighting for a system that works for every Alaskan,” Vincent-Lang said. “Management of our natural resources was a primary driver in Alaska for statehood.”
The state has not decided yet whether to appeal the court’s award. In its court filings, it said the Native groups’ legal fees are too high, and some of the work was duplicative.