State appeal of subsistence ruling attacked

Richard Mauer
Bill Roth

The Parnell administration's decision this week to ask the U.S. Supreme Court to overturn the latest Katie John subsistence ruling as a states' rights issue was described Tuesday as an assault on rural Alaska by leaders of the Alaska Federation of Natives.

The state on Monday appealed a ruling in July by the 9th U.S. Circuit Court of Appeals. The state said the appeals court improperly approved Interior Department rules enforcing federal subsistence fishing rights for rural Alaskans on navigable rivers that would otherwise be owned and managed by the state.

It will be up to the Supreme Court to decide whether to hear the case. Opposing parties on the issue, including AFN and the Alaska Outdoor Council, will likely weigh in before the justices decide what they will do.

The July ruling by the 9th Circuit was only one of many rulings by the courts since the first Katie John lawsuit was brought in federal court in Anchorage in the 1990s. At the time, John, a revered Athabascan elder from Mentasta Lake, had an active fish camp at the Copper River, where she asserted she had a federal right to catch the fish she needed to feed herself and others. When she died May 31, her age was listed as 97.

The issue emerged out of a conflict between the landmark Alaska National Interest Lands Conservation Act and the Alaska Constitution. Congress declared in ANILCA in 1980 that rural Alaskans had preference to fish and game, especially when there wasn't enough for everyone. The state managed fish and game under that principle until the Alaska Supreme Court ruled in 1989 that all Alaskans, rural and urban, were equally entitled to subsistence anywhere in the state.

The state lost virtually every federal court ruling in the Katie John cases. In 2001, after a precedent-setting decision in the 9th U.S. Circuit Court of Appeals that set the stage for the current fight, then-Gov. Tony Knowles visited John at her fish camp and came away saying he wouldn't appeal to the U.S. Supreme Court. That seemed to seal the matter, but the Murkowski administration found another issue to sue over in 2005, eventually resulting in the July ruling by the 9th Circuit against the state.

Attorney General Michael Geraghty said the 9th Circuit got it wrong.

"The purpose of the case is to try to restore state sovereignty over our navigable waterways and to try to correct a decision which I think is flawed," Geraghty said in an interview Tuesday.

The appeal, written by Gregory Garre, a former U.S. Solicitor General in the George W. Bush administration hired by the state, declares that federal regulation of subsistence on navigable rivers like the Copper River "intrudes on the State of Alaska's sovereign authority to regulate fishing and hunting along waters over half of Alaska."

Geraghty said the state isn't challenging the Interior Department's authority under ANILCA to regulate hunting and fishing in federal preserves and refuges, including on small, non-navigable streams there. But he says the state got title to navigable rivers at statehood, and the federal government has no business managing fishery resources there.

The appeal outraged AFN leaders, who called a news conference in Anchorage Tuesday to express their displeasure.

"The latest action by the state of Alaska is an assault upon the people of Alaska who depend upon hunting, fishing and gathering to feed their families," said Tara Sweeney, AFN co-chair.

"The state of Alaska's attempted overreach is a reckless attempt to unravel the precedents set by the lower courts and through administrative procedures," said Rosita Worl, chair of AFN's subsistence committee. "Too much time, energy and precious funding has been wasted in the state's ongoing attacks on subsistence. Enough is enough."

Knowles, reached by phone at his hospital bed where he is recovering from knee surgery, said he was surprised to hear the state is still fighting the Katie John case. He ridiculed Gov. Sean Parnell for raising it "from the grave" like "zombies."

"I think (the appeal) will go nowhere but just the mere fact that he's raised that as an issue, it's divisive, it will take time and energy when there's other important things like suicides, the violence against women in rural Alaska, energy for rural Alaska, and it's going to suck all the oxygen out of the room," Knowles said. "What you're talking about is a core value for rural Alaskan and Alaska Natives. When you challenge that, they will step up to the plate and they will have lots of support, and count me as one of them."

It would be a smarter demonstration of leadership for Parnell, Knowles said, to attempt what he was unable to do -- push the Legislature to change the state constitution to include a rural subsistence preference. That way, the federal government will back off and return all fish and game management to the state, he said.


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