by the Alaska Dept. of Law
T
oday (Sept. 1, 2023) the State of Alaska filed a motion for summary judgment asking the U.S. District Court in Alaska to reject claims brought by the federal government that would strip Alaska of its right to manage fisheries on the Kuskokwim River.
The Biden Administration’s Department of Justice filed suit against the State of Alaska in May 2022 after two years of conflicting management emergency orders. The dispute focuses on implementation of subsistence priority for fishery management, and more specifically, the applicability of a priority for “rural” subsistence for fishery management on the Kuskokwim.
In 2021 and 2022, the Federal Subsistence Board, FSB, issued emergency special actions for the portion of the Kuskokwim River that is within the Yukon Delta National Wildlife Refuge. The Alaska Department of Fish and Game also issued emergency orders for the Kuskokwim River during that time frame. The orders from the Federal Subsistence Board and those from ADF&G conflicted. For example, one of the FSB’s orders purported to authorize limited subsistence fishing on the Kuskokwim only for rural residents, but ADF&G’s order opened the Kuskokwim to subsistence fishing for any Alaskan eligible for subsistence fishing. The full account of conflicting management can be found in a sworn declaration by Commissioner Vincent-Lang.
The State argues that the federal government does not have the authority to manage the fishery on the Kuskokwim because the Kuskokwim River is not “public land” under the Alaska National Interest Lands Conservation Act. Furthermore, the appointments to the Federal Subsistence Board violate the Appointments Clause of the U.S. Constitution, and federal orders that violate the Appointments Clause have no effect.
The State’s defense is supported by the 2019 U.S. Supreme Court decision in Sturgeon v. Frost and is further supported by other recent SCOTUS decisions.
The State is defending the rights it was granted at statehood, and the federal government has no legal basis to overreach and take control of fisheries management on the lower stretch of the river to the detriment of the upper part of the river.
If the Biden DOJ is successful in its lawsuit, it will set precedent to cede management of Alaska fisheries to the federal government – reverting to a situation that was the primary motivating factor for Alaska statehood in the first place.
“If this federal overreach is allowed to stand, it opens the door to the State losing its right to manage Alaska fisheries on significant waterways beyond the Kuskokwim, including the Yukon and Copper Rivers,” said Governor Mike Dunleavy. “Not only was fisheries management a right granted at statehood, but sustainably managing our fisheries is a principle enshrined in the Alaska Constitution. The Biden Administration has been growing more and more aggressive in its efforts to take over State management of our resources, and we have essentially been backed into a corner. Alaska has no choice but to fight for its rights and its citizens.”
“For years, the State and federal government peacefully co-existed, with federal management relying on the State’s science and sustainability goals. But that ended when the federal government sued us over our actions taken to protect not only downriver subsistence fishermen but upriver as well,” said Alaska Attorney General Treg Taylor. “The federal government is doing everything it can to seize fish and game management authority that rightfully belongs to the State as the State tries to fulfill its constitutional mandate to manage these resources for all Alaskans, including former rural Alaskans who are not allowed to participate in the federal subsistence fisheries. Comprehensive management based in sound science to protect subsistence and future returns is what is needed, and that is exactly what the State provides. The federal government’s picking of winners and losers without regard to future returns is an assault on all Alaskans,” Attorney General Taylor said.
“Management of our natural resources was a primary driver in Alaska for statehood,” said Doug Vincent-Lang, Commissioner of the Alaska Department of Fish & Game. “Alaska’s right to manage our fishery resources was guaranteed under our Statehood Compact with the federal government and reaffirmed under ANILCA. Now the federal government is reneging on these agreements and replacing State management with federal management on State-owned waters. This is resulting in differential treatment of Alaskan citizens with some gaining priority access to resources while others who have cultural and traditional ties are excluded, based solely on where in our great state they live. This runs contrary to the Alaska Constitution, ANILCA, and more importantly, to how Alaskans treat Alaskans. Our defense stands up for all Alaskans. It is unfortunate that we have been put into a position by the federal government to defend our Constitution and our right to manage in the best interest of ALL Alaskans. In this time of fiscal uncertainty, money and resources could be better spent restoring depressed salmon runs,” Commissioner Vincent-Lang said.
