Supreme Court declines to revisit Alaskan fishing rights dispute

(CN) — The Supreme Court on Monday rejected Alaska’s bid to review a ruling affirming Alaska Native fishing rights in a case tied to a broader legal battle over subsistence fishing that began more than 40 years ago.

The high court’s denial of Alaska’s petition for writ of certiorari marks the fourth time a court has rejected what Lloyd Miller, attorney for the Kuskokwim River Inter-Tribal Fish Commission, has described as Alaska’s attempt to “wipe out the subsistence fishing and hunting rights that rural Alaskans, and especially Alaska Native communities, depend upon for the very survival."

The denial allows residents to continue subsistence fishing along the Kuskokwim River in southwest Alaska.

Vivian Korthius, CEO of the Association of Village Council Presidents, celebrated the decision.

“This is a moment of relief for our communities, but our work is not done,” Vivian Korthius said in a statement. “While the Supreme Court’s decision allows the hard-won protections for subsistence to stand, we know that many of our families are still unable to access the resources that sustain our way of life.”

Korthius called on Alaska to end its legal and administrative attacks on federally protected subsistence rights.

“We will continue to fight for every community’s right to fish, gather, and live according to our traditions,” Korthius said.

In May 2021, the Federal Subsistence Board closed gillnet fishing of salmon along 180 miles of the Kuskokwim River for all but five days and to everyone but those who qualified as federal subsistence users. Days later, the state issued an emergency order allowing subsistence gillnet fishing along the river to all Alaskans on the same dates chosen by the board.

The river contains several species of salmon, including Chinook salmon and chum salmon. Most residents of local villages along the river and its tributaries are federally approved subsistence users — whether they are native or non-native to the area — that are highly dependent on the fish.

The federal government, the Kuskokwim River Inter-Tribal Fish Commission and the Association of Village Council Presidents sued the state, arguing that it lacked the authority to override the Federal Subsistence Board’s orders.

In federal court, U.S. District Judge Sharon Gleason, a Barack Obama appointee, sided with the federal government. On appeal in the Ninth Circuit, Alaska argued that the Katie John trilogy, a series of binding precedents on the Alaska National Interest Lands Conservation Act, should be overturned.

The Katie Johntrilogy, which began in 1985 when Alaska Native and activist Katie John sued the state over subsistence fishing rights, holds that a reserved water right can make navigable waters public land.

Under Title VIII of the Alaska National Interest Lands Conservation Act, Congress included a priority for the taking of fish and wildlife by rural Alaskans for subsistence purposes. In 1990, the Departments of the Interior and Agriculture created the Federal Subsistence Board to implement rural subsistence priorities.

Following the third Katie John case, the United States implemented the Alaska National Interest Lands Conservation Act’s rural subsistence priority on the span of the Kuskokwim River within the Yukon Delta National Wildlife Refuge.

Before the Ninth Circuit last year, the state argued that Katie John Iwas no longer binding due to the Supreme Court’s decision in *Sturgeon v. Frost,*two cases in which the Supreme Court held that the Alaska National Interest Lands Conservation Act defines navigable waters in the state as “non-public” lands exempt from the National Park Service’s regulations.

However, the Ninth Circuit ultimately ruled, in a footnote in Sturgeon, that the high court explicitly chose not to disturb the Katie Johntrilogy’s definition of “public land” as used in the Act’s subsistence-fishing provisions. Under Katie John, the National Park Service may regulate subsistence fishing on navigable waters.

In the Sturgeon footnote, the Supreme Court cited the state’s amicus brief arguing that the case doesn’t implicate the Katie Johndecisions — a position that it reversed when challenging the Kuskokwim subsistence fishing allowances.

In declining to hear the appeal of the Kuskokwim case, the Supreme Court let stand the Katie Johnsubsistence fishing precedent.

An attorney with the Native American Rights Fund also welcomed the ruling.

“Today’s decision closes the door on decades of costly and prolonged litigation — efforts that have spanned generations and consumed millions of dollars,” Erin Dougherty Lynch, attorney with the Native American Rights Fund, said in a statement.

The federal government declined to comment and the state did not respond to a request for comment before press time.