Press Release
FAQs on the Kuskokwim Case
September 1, 2023
What is the issue at hand?
The issue at hand is who has the authority to manage fish and wildlife resources in Alaska, for the benefit of all Alaskans: the State or the federal government.
Why now?
The federal government is suing Alaska to challenge our authority under the Statehood Act and ANILCA to manage our fish and wildlife resources.
What happens if the State does nothing?
The authority being asserted by the federal government in this case would be precedent setting across Alaska and would usurp our management authority, giving full control to unaccountable, unelected federal officials to make decisions impacting all Alaskans.
Does this impact the Katie John court decision?
Yes, because of the federal government is attempting to overstep its authority and preempt State management. This is not a fight we picked, but if we don’t fight back, it will lead to federal takeover of our management rights.
What happens to the Katie John ruling if state wins?
Again, it is the federal government that filed this lawsuit, not Alaska. And so it is the federal government that has put the Katie John ruling at issue. Moreover, it was the Supreme Court in Sturgeon that rejected the same theory and reasoning underlying the Ninth Circuit’s decision in Katie John. If the Court recognizes that the Katie John decision is no longer good law, the State is still bound by our Constitutional mandate to manage our resources for the benefit of all Alaskans, and subsistence is and will remain the highest priority use under State management.
What is the disagreement in this case?
In spring 2021, the State issued orders restricting salmon fishing on the Kuskokwim River except for on certain dates when Alaskans could engage in limited subsistence fishing opportunities. But the federal government attempted to override the State’s orders by issuing orders restricting subsistence fishing only to “rural” residents. The refuge manager issued these orders despite having no evidence that the small number of non-rural subsistence fishers would have any negative impact on the salmon population. Then, in 2022, the federal government issued orders contradicting the State’s fishing restrictions by opening the Kuskokwim to subsistence fishing on multiple days, despite the State’s determination that the salmon population was too low and uncertain to support fishing on all of these dates.
The federal government then sued Alaska, claiming that its orders superseded the State’s and applied over waters that are legally under State jurisdiction. This egregious federal overreach is wrong, and the State has a constitutional obligation to defend Alaska’s right to manage its own waters.
Many Alaskans have cultural ties to rural fisheries but have been displaced to urban areas of the state. Today, 60 percent of Alaska Natives reside in the state’s urban cities, not its rural villages, and 87 percent live outside of tribal areas. State laws and regulations protecting subsistence fishing for all Alaskans ensure that individuals can return home to practice their culture and traditions.
Who are the parties involved?
The United States is suing the State of Alaska. The Kuskokwim River Inter-Tribal Fish Commission, Association of Village Council Presidents, and Ahtna, Inc. have joined with the federal government as intervenor plaintiffs. The State of Alaska is defending itself and its rights granted at statehood.
On what section of the 702-mile Kuskokwim River does this case center?
From the mouth of the Kuskokwim River to Aniak, 191 miles upriver. Aniak sits at the edge of the Yukon Delta National Wildlife Refuge.
What authority does the State have on the Kuskokwim River?
Alaska gained ownership of the lands under the Kuskokwim River when it joined the Union in 1959. As a result, the State has plenary authority to manage fisheries in the navigable waterway.
What is the federal authority on the Kuskokwim River?
The Kuskokwim River is a navigable waterway. The federal government has disclaimed any interest in the submerged lands beneath the sections of river at issue in this case. Thus, the river is not Public Land under ANILCA, and the federal government has no authority to implement Title VIII.
What is the Katie John Ruling and why is it an issue here?
Essentially, the Katie John cases allowed the federal government to take over management of fisheries in rivers above state-owned riverbeds to enforce the rural subsistence preference under ANILCA. The Katie John cases from the late 90s held that although the submerged lands under rivers such as the Kuskokwim River are State owned and not federally owned, the doctrine of federal reserved water rights provided an avenue to have the federal government manage for the rural subsistence preference despite the lack of ownership by the federal government. The case arose from a State closure of fishing in an area that Katie John had traditionally fished. Those areas are currently not closed off under State management, and in fact, it is now the federal government that is impacting the subsistence lifestyle of those upriver of the federal areas as well as those that have traditional and cultural ties to the area but no longer live there. The ruling is at issue here because the U.S. Supreme Court has now stated that the reasoning underlying the Katie John decision was wrong—therefore, the State owns the submerged lands beneath the rivers and manages the fisheries on the Kuskokwim River, and the federal government has no authority.
Did the State set out to reverse the Katie John ruling?
No, but the State was forced to defend itself because the federal government is suing the State. The federal government has been growing more and more aggressive in its efforts to take over State management of Alaska resources. The federal government is picking winners and losers based on whether they happen to fish in a federal area or not. The State cannot roll over and cede its authority to the detriment of subsistence users across the state. To defend the State’s authority, we have to follow the law, and the law is clear that the Kuskokwim River is a navigable waterway under State authority, and, therefore, the federal government has no authority as it is not Public Land under ANILCA, the Alaska National Interest Lands Conservation Act.
What changed to cause the litigation?
It has long been federal policy to defer to State management of the Kuskokwim River whenever possible. But in 2021, the federal government began issuing orders that were directly at odds with State management. Then, in April 2022, the United States sent a letter to the State threatening legal action if the State continued to "authorize subsistence harvest by all Alaskans on a day when no comparable federal opening exist[s]" or issued any other orders "authoriz[ing] harvest of Kuskokwim salmon within the [Yukon Delta National Wildlife] Refuge in a manner contrary to the Board’s actions." In response, Alaska wrote that protecting subsistence fishing for all Alaskans was critical because “many of the users who are not federally qualified have cultural ties to the Kuskokwim fishery but have been displaced to urban areas of the state," and the State again noted that it was legally required “to provide a subsistence opportunity for [these] users when a harvestable surplus exists.”
The following month, the State was preparing to issue new orders restricting gillnet fishing due to the historically low levels of chum salmon escapements the prior year. But on May 2, federal authorities issued an emergency special action inexplicably authorizing rural residents in and near the federal area (known as federally qualified subsistence users) to fish using gillnets on June 1, 4, 8, 12 and 16. The State asked the federal government to provide a “biological justification” for its actions and never received a response.
On May 13, consistent with these concerns, the State issued emergency orders that prohibited subsistence fishing with gillnets in the Kuskokwim River beginning on June 1, but opened subsistence fishing for all subsistence users only on June 1, 4, and 8. The State did not permit gillnet fishing on June 12 and 16.
On May 17, four days after the State issued its orders, the United States sued the State of Alaska. The United States sought an order enjoining the State’s "emergency orders purporting to open harvest on the public waters of the Kuskokwim River during the federal closure in 2021 and 2022, and any similar actions interfering with or in contravention on federal orders addressing ANILCA Title VIII…"
What does the State seek?
The State seeks summary judgment on two grounds. First, the Kuskokwim River is not "public land" under ANILCA, so the federal government cannot preempt the State’s orders. 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 this stretch of the river.
Second, the Federal Subsistence Board violates the Appointments Clause because it was not established "by Law" and its members are "principal" officers who were not nominated by the President and confirmed by the Senate.
What have the feds done in this case?
The federal government issued several orders that were directly at odds with State management on State waterways. The government then threatened the State with legal action if the State continued to open the State subsistence fishery in State waters and subsequently sued when the State did not agree to its demands.
What court is this litigation at and what are next steps?
Motions for summary judgment are currently pending before the U.S. District Court for the District of Alaska. Any appeal from the judgment of the District Judge would be heard by the U.S. Court of Appeals for the Ninth Circuit.
If the U.S. District Court rules in favor of the federal government, what else is at risk for the State and why?
The stakes for Alaska couldn’t be higher. If this federal overreach is allowed to stand it is a slippery slope to losing our right to manage our fisheries on significant waterways beyond the Kuskokwim such as on the Yukon and Copper Rivers.
# # #
Department Media Contacts: Communications Director Patty Sullivan at patty.sullivan@alaska.gov or (907) 269-6368. Information Officer Sam Curtis at sam.curtis@alaska.gov or (907) 269-6269.