Abysmal chinook and chum salmon returns to Western Alaska have made the state’s jurisdiction in fisheries management a prominent target on the legal radar again. Though Alaska’s subsistence challenges have been the bane of salmon management in some areas for more than a half century, recent run failures on the Yukon and Kuskokwim Rivers have rekindled arguments in the courts.
Most recently, a case filed in 2022 has gained momentum and will argue whether the State of Alaska and the Alaska Division of Fish and Game, or the federal government, calls the shots in setting subsistence openings and closures on a 191-mile stretch of the river.
“They’re literally fighting over crumbs here,” says Rep. Mary Sattler Peltola, D-Alaska. “This is a legal battle over crumbs. All subsistence harvesting captures less than 1 percent of Alaska’s resources. When I was growing up it was 2 percent, which was negligible; now it’s less than 1 percent, and when you’re talking about subsistence on federal land, that’s infinitesimal.”
The case is the latest in court gyrations that promise to test the validity of a landmark court ruling that was never settled to anyone’s satisfaction in the 1990s. That case, commonly referred to as “Katie John,” was named after the woman who challenged a state law of 1964 which prevented her from operating a fish wheel for her winter’s salmon. That ruling was supposed to have defined “subsistence priority” in fisheries management.
The suit, originally filed in 1985 by Katie John and other parties, challenged the state management system in a plea for subsistence rights. What ensued since then has been a fight between state and federal courts in defining what constitutes public lands, submerged lands, navigable waters on those lands and which government (state or federal) has rightful management of those waters to comply with language in the Alaska National Interest Lands Conservation Act (ANILCA).
While the McDowell ruling may have clarified the state’s position on the allocation of resources, the bigger battle worked its way up to the 9th Circuit U.S. Court of Appeals, which ruled in favor of Katie John. After that ruling, arguments continued their escalation through various courts until 2001, when then-Gov. Tony Knowles decided not to appeal in U.S. Supreme Court.
On the surface, the decision appeared to have been a definitive win for groups in rural Alaska.
And it might have worked, if not for ongoing legal challenges by the state of Alaska, and an urban moose hunter who drove a hovercraft into the headwaters of a national park and launched the country’s legal system into uncharted territory.
The hunter, John Sturgeon, tested federal law by running a hovercraft into the headwaters of a national park. The ensuing Sturgeon v. National Park Service case originated in 2011, on grounds of Sturgeon’s assertion that he was operating legally under state jurisdiction on public lands.
The National Park Service argued otherwise, but the U.S. Supreme Court sided with Sturgeon in November of 2018. That ruling in the highest court supersedes the 9th Circuit ruling that upheld Katie John.
In the courts, Alaska has everything to lose in its management of resources and in protecting the sovereignty to serve its residents. Advocates for rural communities say losing access to salmon that have been harvested by other user groups compromises tradition, health and wellness, and even village economics.
“Right now, this discussion is not about Native and non-Native,” says Peltola, who has lived and fishes on the Kuskokwim River. “It is about rural and non-rural harvests, and what it’s saying is that if you live in close proximity to the resource in lower abundance, then the person who lives in that proximity has a priority of harvest.”
Meanwhile, fish racks and smokehouses are empty. Subsistence needs have not been met.
“The cash economy along the road system and in urban Alaska is very different from the economy in rural and remote Alaska,” says Peltola. “Our economy is actual food on the table.”
In October, the Alaska Federation of Natives (AFN) put forth a list of resolutions challenging the State of Alaska on its failure to manage the Kuskokwim salmon effectively and sided with the federal government in the courts. The U.S. District Court allowed AFN to join the case as an intervenor. The feds responded in favor of the AFN resolutions. Alaska’s Department of Law responded to the resolutions with an emphasis that it does not intend to undermine the precedent that upholds Katie John.
“The title of the case shows that the State of Alaska did not bring this lawsuit,” says an Oct. 21 press release from the state Department of Law. “The federal government did. The State had no interest in revisiting the Katie John case.”
All sides know that the Katie John precedent will likely be challenged, and representatives from all sides say that they are incidental players in a fight they did not intend to start.
AFN in its filing to intervene with United States against the State of Alaska in the District Court seeks subsistence rights protection for 160,000 residents directly affected by future court decisions and their implications to the subsistence fishery management regime.
By Peltola’s definition, “rural priority” has been confined to immediate residents of the communities.
“If I live in the Kuskokwim River I do not have rural preference to harvest on the Yukon River,” she says. “So, if any area in Alaska has scarcity issues the people who live close to that resource have the first shot. I think that’s a really fair threshold.”
Attorneys for the state, however, point out that their position to manage salmon and other resources applies to all people, including Alaska Natives who have left those villages to live in Alaska’s largest cities: Anchorage, Fairbanks and other roadside or populated communities.
“Today, 60 percent of Alaska Native people reside in the state’s urban cities, not its rural villages, and 87 percent live outside of tribal areas,” says a Department of Law response to one of the AFN resolutions. “State laws and regulations protecting subsistence fishing for all Alaskans ensure that Alaska Native people can return home to practice their culture and traditions through subsistence fishing.”
In October attorneys representing the state urged the judge to throw out the AFN intervention on the basis it was not filed in a timely manner in the court. The court, however, sided with AFN, including the organization as a plaintiff along with the federal government.
As of November, action remained quiet in the courts. In the short term, the State of Alaska has called for a summary judgement in the District Court, according to Patty Sullivan, communications director with the Alaska Department of Law.
“We will file a response to the plaintiff and intervenors' briefs,” she says. “Then Judge Gleason will issue an order at some point within the next several months.”
All sides concur that the final rule about who manages the fishery and who has ultimate access to the fish will follow the path of the Sturgeon case in the U.S. Supreme Court.
The litigation promises to pit Native against non-Native residents, rural residents against urban residents, state managers against federal managers, and like other large-scale changes in fisheries management changes, opens the possibility of unintended outcomes.
“Anybody who’s ever fished for chum salmon with a gillnet knows that there are spinners,” says Peltola. “It’s hard getting one out of the net, and sometimes during the peak of the run you get four or five or six that are all tangled together. I used to see these chums in my sleep, and I feel that we are there now,” she says of the litigation ahead. “It’s like two or three chums that are twisted up in a knot together.”