Judge rules in favor of Biden administration in fight with Alaska over rural priority for subsistence fishing

A federal district court judge on Friday ruled in favor of the Biden administration in its battle with the Alaska state government over management authority of subsistence fishing related to struggling salmon runs on a Southwest Alaska river.

The federal government can legally give rural residents priority for subsistence fishing on the Kuskokwim River, in line with the 1980 Alaska National Interest Lands Conservation Act, U.S. District Court Judge Sharon Gleason wrote in a 29-page decision.

The case has implications for subsistence management in Alaska that extend well beyond the Kuskokwim River.

Alaska Attorney General Treg Taylor said Friday the state will appeal the decision and said the administration of Gov. Mike Dunleavy wanted the argument settled by the U.S. Supreme Court.

The Biden administration sued the state of Alaska in 2022, arguing that the Alaska Department of Fish and Game had announced fishing openers that conflicted with the federal government’s authority to provide subsistence management on the 180-mile portion of the Kuskokwim that runs through the Yukon-Delta National Wildlife Refuge. The federal government had argued that the state’s openers confused subsistence users and were not legitimate.

The Alaska Federation of Natives joined the federal government in the case, asserting that the state’s argument in the lawsuit threatened the legal underpinning of federal subsistence fishing rights that give priority to rural subsistence users in times of shortage.

Gleason said in her ruling that the federal government succeeded on the merits in the case and is entitled to a permanent injunction to stop Alaska from issuing similar conflicting orders in the future.

The federal government has demonstrated “irreparable harm to the United States’ ability to enforce ANILCA’s rural subsistence priority and to federally qualified subsistence users caused by the state’s issuance of conflicting emergency orders,” Gleason wrote.

Alaska cannot reinstate Fish and Game’s 2021 or 2022 orders, Gleason wrote. The state also cannot take “similar actions interfering with or in contravention of federal orders addressing (ANILCA) and applicable regulations on the Kuskokwim River within the Yukon Delta National Wildlife Refuge,” Gleason wrote.

In the case, the state had argued that Gleason should not follow the precedent established in the so-called Katie John cases that ended in 2014, which upheld the federal subsistence priority for rural users on waters associated with federal lands.

[Alaska lawmaker proposes constitutional amendment to unify subsistence management under the state]

Instead, the state argued the court should apply the U.S. Supreme Court ruling in the 2019 decision in the so-called Sturgeon case, when the court found that Alaska’s Nation River is not “public land” under federal law.

The Supreme Court said then that the Katie John decisions were “not at issue” in the Sturgeon case, leaving the rural subsistence fishing priority intact on what are called “navigable waters” in federal areas.

The Alaska Department of Law is disappointed in Gleason’s decision, Taylor said in an emailed statement.

“Although we just received the ruling and have not yet reviewed it fully, we are disappointed that the Court did not recognize the clear conflict between the U.S. Supreme Court decision in the Sturgeon case and the federal actions here, but it is also not surprising,” Taylor said.

“We were always expecting this case to go up to the highest court in order to get a final decision,” Taylor said. “The state plans to appeal.”

Alaska Department of Fish and Game Commissioner Doug Vincent-Lang said in a statement, “It’s disappointing to see the court seemingly complicit in the Federal government’s attempted re-write of its agreements with Alaska. It’s a sad day for State sovereignty, self-determination, and terms like ‘justice.’ ”

Alaska and the federal government have long been at odds over the rural subsistence priority, leading to a patchwork of state and federal management regimes across the state.

The Alaska Constitution guarantees all Alaskans equal access to fish and wildlife.

Federal law, on the other hand, allows a subsistence priority for rural residents, predominantly Alaska Natives.

An Alaska representative has recently reignited a controversial and decades-old issue to settle the matter, by proposing to amend Alaska’s constitution and create a unified, state-managed system across Alaska.

Skeptics are already raising concerns about the complex proposal, which faces a steep hurdle. Passage would require two-thirds approval by both chambers in the state Legislature before it could be considered by Alaska voters.