Biden Administration/Alaska Tribes Push Back Against State’s Water Grab
By Hal Shepherd
This blog was posted yesterday prematurely. The update below has added content.
The Biden administration has filed a lawsuit against the State of Alaska regarding Federal regulatory authority of subsistence fishing on the Kuskokwim River in Southwest Alaska. The river, which runs through the Yukon Delta National Wildlife Refuge and is critical to local Alaska Native communities for subsistence fishing, experienced dismal returns for king and chum salmon in 2021. According to the complaint, the dispute arose out of the state’s practice of opening subsistence fishing opportunities to all state citizens while at the same time the federal government, in accordance with federal law, limits such fishing to only rural Alaskans on the section of the Kuskokwim that is in dispute.
The conflict arose, in part, out of Governor Dunleavy’s recent claim that the U.S. Constitution and federal law gives the State of Alaska exclusive rights to navigable waters and submerged lands within its borders. This claim is based primarily on a decision by the U.S. Supreme Court in the spring of 2019 in favor of John Sturgeon, who sued the National Park Service (NPS) in 2007 after rangers on the Yukon-Charley Rivers National Preserve told him he could not use a hovercraft for hunting moose on the Nation River near the Canadian border. The Court concluded that, for the purposes of the Alaska National Interest Lands Conservation Act, the Nation River did not qualify as “public land” and the Park Service, therefore, did not have the authority to prohibit power boating on the part of the river found within the preserve.
The Sturgeon Court kept intact, for now, the 9th Circuit Court of Appeals decision in the Katie John line of cases which says that the Alaska National Interest Lands Conservation Act established the Subsistence Priority for the benefit of rural Alaskans on federal lands. Rather than explain why Katie John was not implicated by its decision, however, the Court simply stated in a single footnote buried in the middle of the 46-page ruling that the Katie John ruling is “not at issue in this case, and we, therefore, do not disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters.” Any potential impacts of the Supreme Court’s opinion in Sturgeon on the subsistence rights of rural Alaskans therefore, is still a large question mark, especially after Governor Dunleavy’s announcement in the Spring of 2021 that, “I am asserting the state’s control of the navigable waters and submerged lands we received at statehood, and our right to manage them in Alaskans’ best interests.”
Governor Dunleavy relies on several legal principles for his claim to the state’s water resources, including the U.S. Constitution’s “equal footing doctrine,” which gives new states the same rights to bed and banks of navigable waters as existing states and ANILCA which after Sturgeon, potentially exempts navigable rivers inside federal lands from some federal regulation. According to the Governor:
John Sturgeon’s second Supreme Court victory in 2019 clarified ANILCA, making it clear that federal regulations do not supersede state ownership within ANILCA-established conservation units. It also rejected claims that laws affecting federal land in the lower 48 automatically apply in Alaska, clearly acknowledging our unique circumstances.
While it is generally considered that if a stream is determined to be navigable, it is state waters, the Supreme Court has consistently rejected complete ownership of water by either the federal or state governments. Any state claim of such ownership, therefore, likely does not justify interference with valid federal rights to regulation water use.
Despite the fact that Governor Dunleavy’s water grab is largely without basis, up until recently, he stood a good chance of pulling it off due to the fact that the Federal Government has been slow to respond to these allegations. Immediately after the decision in Sturgeon, for example, the Bureau of Land Management and National Park Service began discussions with the state about a memorandum of agreement addressing which waters could be defined as navigable and therefore would fall under the jurisdiction of the state. The parties were too far apart on the issues, however, and the MOU eventually fell apart. After that, the Dunleavy administration pushed its position by filing quiet title lawsuits on key rivers within the state, sponsoring state legislation, and applying state’s rights rhetoric to support its claim that the state owns all submerged lands within its boundaries.
When asked recently, what the Park Services was doing to counter the state’s stance on ownership of waters running through NPS and other federal lands, the answer was “not much.” Because the Park Service cannot take action on the dispute until an official position grinds its way through Department of Interior bureaucracy, they could not publicly act. The primary danger with this strategy is how it translates into the field, and questions have arisen as to how enforcement officers are able to issue tickets for or even prevent violations of Park regulations that occur on rivers running through federal lands.
Worse, until filing the Kuskokwim lawsuit, the federal government has basically stood by while the state sets in motion a process for reversing the 9th Circuit Court of Appeals decision in Katie John. This situation has been brought about by the fact that in Sturgeon, the Supreme Court has already set the stage for the argument that under ANILCA, federal regulations do not supersede state law on rivers running through federal lands. The concern, therefore, is that the state’s slew of lawsuits could lead the courts to apply Sturgeon to federal subsistence laws and throw out the application of those as well. In fact, one such suit calling for extinguishment of federal ownership over the Koyukuk River, an important subsistence river, could be just such a pre-curser.
ANILCA is also at the heart of the recent lawsuit on the Kuskokwim which, according to the federal government, applies only to federally qualified rural subsistence users. Alaska law on the other hand, allows for subsistence opportunities for all state citizens. The lawsuit is based on the fact that this summer’s salmon runs are expected to be so low that the federal government must limit fishing to rural subsistence users for the 180-mile stretch of river found on the Wildlife Refuge.
Another problem with the fed’s initial reluctance to counter Governor Dunleavy’s water grab is the fact that the state has been largely driving the narrative as to who has the right to regulate subsistence. After the Kuskokwim lawsuit, however, Alaska Tribes have begun to speak out in support of the Subsistence Priority.
The Kuskokwim River Inter-Tribal Fish Commission, which called last summer’s collapse of the Kuskokwim fishery a, “catastrophic multi-species salmon decline not seen in living memory,” is encouraged by DOI’s actions. Kevin Whitworth, who is the interim executive director for the organization that acts on behalf of tribal interests regarding the fishery, says “We’re heartened to see the federal government standing up for the protection of salmon and the importance of federal management.”
Similarly, in late May, the Norton Bay Inter-Tribal Watershed Council held a Workshop
attended by representatives from Tribes and Tribal organizations throughout the North Bering Sea region to talk about how federal and state policies are exacerbating climate impacts to water and subsistence resources and how tribes can regain local control over decision-making. As part of the day and a half workshop, the Council invited Maija Katak Lukin, the Alaska Native Tribal Affairs liaison, to give an update on the Kuskokwim litigation and other issues regarding the navigability/submerged lands debate. Katak Lukin said that a recently created federal interagency working group consisting of NPS, BLM and the US Forest Service representatives are working to develop a consistent policy on navigable waters.
Because of the implications of Sturgeon to the Katie John decision, the state’s attack on subsistence resources, and the need to make navigability determinations for certain rivers and streams this summer, the working group will be reaching out to tribal governments to ask them whether they are familiar with these issues and whether they would be interested in consulting in relation to protection of tribal interests. The NPS is also looking for tribal members who may be interested in joining the working group.
Finally, on June 14, Native Peoples Action held a “PROTECTING OUR WAYS OF LIFE” Rally as part of the National Congress of American Indian Mid-Year Conference. According to NPA’s Facebook page, the rally was held to allow Native Alaskans to voice, “support of fishing rights on the Kuskokwim River, where our relatives’ access to fishing on traditional lands and waters is at stake. The federal government has submitted a case to sue the State of Alaska over Kuskokwim salmon fishing rights…”
Anyone interested in finding out more about the Working Group or protecting subsistence uses on the state’s rivers can contact Maija Katak Lukin the Alaska Native Tribal Affairs Liaison to NPS for all of Alaska at Maija_Lukin@nps.gov; (907) 644-3510.