Alaska’s federal and state governments have never comfortably co-existed on the Kuskokwim River. Each shares management of the river, and each has its own priorities. Now that the federal government has filed a lawsuit against the state, it’s come to a head.
The Alaska Federation of Natives is the latest party to side with the federal government. A federal judge last week granted AFN’s request to intervene in the case.
The Kuskokwim has historically provided a wealth of salmon to the communities that hug its shores. Decades ago, the river’s silty waters produced one of the largest king salmon fisheries in the state — enough to have both subsistence and commercial fisheries, as well as an abundance of chum salmon, sockeyes and silvers.
In recent years, king salmon numbers crashed to a crisis point that restricted and sometimes even closed subsistence harvests.
At that point, the U.S. Fish and Wildlife Service stepped in to enforce a federal rural subsistence priority in the lower stretches of the Kuskokwim, which flows through a federal wildlife refuge.
The state continued to manage the fisheries upriver, outside the refuge.
In 2021, the state opened up the whole river to subsistence fishing for all Alaska residents, because its managers felt there was a surplus of fish that season. But the federal government filed suit. It argued the state had not only overstepped its bounds but also failed to manage for a rural subsistence priority, breaking federal law.
AFN says it sought to join the federal lawsuit — because it believes the state’s actions threaten subsistence protections under the Alaska National Interest Lands Conservation Act, or ANILCA.
AFN legal counsel Nicole Borromeo says the landmark Katie John court case, which affirmed a rural priority for subsistence fishing, is also jeopardized by the state.
“It does more than challenge Katie John,” Borromeo said. “The state is arguing in no uncertain terms that Katie John is no longer good law.”
Katie John was a Mentasta elder who successfully sued the state to open the Copper River to subsistence fishing in a place where her family had fished for generations. It turned out to be a legal fight that went on for decades.
“We fought the battle. We’ve won the battle,” Borromeo said. “But apparently the state has yet decided to mount up again for another legal attack on the rural priority.”
State Fish and Game Commissioner Doug Vincent-Lang says it’s the federal government that’s picking this fight, not the state, which is simply following its constitutional duty to provide equal access to fish and game and protect its authority over navigable waters.
“Well, if we didn’t respond to this, we would have accepted the fact that the federal government could replace state management with federal management on any of Alaska that touches the federal reserve,” Vincent-Lang said, “and that becomes untenable.”
In times where the runs are strong enough to support subsistence fishing, the state has taken over management of subsistence fisheries in the Lower Kuskokwim, which Vincent-Lang says affects the overall management of the river.
“They’re basically managing within the refuge for subsistence priority,” Vincent-Lang said. “But that’s impacting our ability to meet escapements in the upper river.”
There is one thing the state and AFN agree upon, that this legal fight has far-reaching implications. Borromeo says this case may eventually have to go all the way to the U.S. Supreme Court to be resolved.
Otherwise, she says, the state will continue to make management decisions that undermine rural priority.
“The state’s been very clear that it will only stop if the U.S. Supreme Court tells them to,” Borromeo said, “So we need a ruling from the U.S. Supreme Court.”
Vincent-Lang also believes it may come to this.
“I think it needs to be settled,” he said.
It’s an old battle that stems from a problem that’s hard to fix — conflicts in the Alaska constitution with federal law that can only be resolved through a state constitutional amendment, which remains politically out of reach.