US v. Alaska
Background
In 2021 and 2022, the Federal Subsistence Board and the Yukon Delta National Wildlife Refuge Manager closed the section of the Kuskokwim River within the Refuge to non-subsistence fishing. This measure was taken to safeguard the fish population for continued subsistence use by rural residents, who are classified as “federally qualified users.” During the closures, the federal government allowed limited subsistence fishing by residents.
However, in both years, the State issued orders that ignored the federal government’s orders, opening up the same stretch of the Kuskokwim to fishing by all Alaskans.
The Lawsuit
In May 2022, the federal government filed a lawsuit against the State for issuing conflicting orders and disrupting its management of the Kuskokwim. On September 1, 2023, the State requested that the court declare that the State, not the federal government, holds the management authority over subsistence fisheries like the Kuskokwim. The State also requested that the court overrule the Katie John cases.
This means the State is essentially seeking to nullify Title VIII of ANILCA. Title VIII provides a priority for subsistence takings by rural residents during times of shortage.
Katie John is a trilogy of cases that upheld the federal government’s authority under Title VIII to manage subsistence fishing within federal public lands.
The State is also asking the court to invalidate the Federal Subsistence Board (FSB). The FSB is the decision-maker that oversees the Federal Subsistence Management Program.
The State likely intends to take this case to the U.S. Supreme Court. Even though the Supreme Court only agrees to review a small number of cases each year, this threat to Alaska Native subsistence should not be understated. The State’s bold attack on Alaska Native ways of life poses a significant threat.
If the court overturns Katie John, there will no longer be a rural subsistence priority and management of all subsistence fisheries will be in the hands of the State. Moreover, subsistence fishing will be open to all Alaskans even during times of shortage.
On October 12, 2023, AFN successfully joined U.S. v. Alaska, ensuring there is a statewide voice for Alaska Natives in the case advocating to protect Katie John and the rural subsistence priority. The Kuskokwim River Inter-Tribal Fish Commission, the Association of Village Council Presidents, Betty Magnuson, Ivan M. Ivan, Ahtna Tene Nené, and Ahtna, Inc. have also joined the lawsuit to protect subsistence.
On October 27, 2023, the United States filed its brief responding to the State’s argument that Katie John is no longer good law.
November 3, 2023, AFN and the other intervenors filed their briefs responding to the State’s argument that Katie John is no longer good law.
What’s Next
The State is allowed to file one more brief, which is due on December 22, 2023. After that, we expect the judge to schedule an “oral argument,” which is an opportunity for all parties to briefly make their case before the judge and answer any of her questions. The oral argument will likely be scheduled in January or February of 2024 and will be at the U.S. District Court at 222 W. 7th Ave in Anchorage. AFN will update this webpage and send an email to its members when oral argument is scheduled. The public may attend. After that, we wait for the judge to make her decision.