November 13, 2023 — Abysmal chinook and chum salmon returns to Western Alaska have made the state’s jurisdiction in fisheries management a prominent target on the legal radar again. Though Alaska’s subsistence challenges have been the bane of salmon management in some areas for more than a half century, recent run failures on the Yukon and Kuskokwim Rivers have rekindled arguments in the courts.
Most recently, a case filed in 2022 has gained momentum and will argue whether the State of Alaska and the Alaska Division of Fish and Game, or the federal government, calls the shots in setting subsistence openings and closures on a 191-mile stretch of the river.
“They’re literally fighting over crumbs here,” says Rep. Mary Sattler Peltola, D-Alaska. “This is a legal battle over crumbs. All subsistence harvesting captures less than 1 percent of Alaska’s resources. When I was growing up it was 2 percent, which was negligible; now it’s less than 1 percent, and when you’re talking about subsistence on federal land, that’s infinitesimal.”
The case is the latest in court gyrations that promise to test the validity of a landmark court ruling that was never settled to anyone’s satisfaction in the 1990s. That case, commonly referred to as “Katie John,” was named after the woman who challenged a state law of 1964 which prevented her from operating a fish wheel for her winter’s salmon. That ruling was supposed to have defined “subsistence priority” in fisheries management.
The suit, originally filed in 1985 by Katie John and other parties, challenged the state management system in a plea for subsistence rights. What ensued since then has been a fight between state and federal courts in defining what constitutes public lands, submerged lands, navigable waters on those lands and which government (state or federal) has rightful management of those waters to comply with language in the Alaska National Interest Lands Conservation Act (ANILCA).
An equally hefty argument has been the definition of who among Alaska residents has rightful access to natural resources – and when. As the Katie John case gained momentum in federal courts, an Alaska state Supreme Court decision in another case, McDowell v. State, had rendered that natural resources are the property of all residents: urban, rural, Native and non-Native, and that relegating rights to specific groups violated the state constitution.