While Alaska Attorney General Jahna Lindemuth has been trying to convince Alaskans the state should have no problem gaining legal right to its navigable waters while leaving the federal government in charge of managing the fish in those waters, attorneys for Ahtna Inc., an Alaska Native corporation, have made clear the inherent problem in the water-rights litigation now before the Supreme Court of the United States.
If the high court simply overturns the latest Ninth Circuit Court of Appeals ruling in the case of moose hunter John Sturgeon, they warn, the federal government’s authority to manage the fisheries on Alaska’s major rivers will go away.
As a result, attorneys Nicholas Ostrovsky and Jonathon Katchen are pleading for the justices to employ some legal sleight of hand to sidestep that old hobgoblin of consistency and prevent 49th state’s never-ending tussle over subsistence from again erupting into new “subsistence wars.”
Sturgeon challenged the authority of the Park Service to order his small hovercraft off that navigable waterway in the Yukon-Charley Rivers National Preserve. The Alaska Statehood Act, he said, granted the state – not the Park Service – authority over navigable waters.
A federal District Court judge in Alaska disagreed. So, too, the big-government-oriented Ninth Circuit in California. The Supreme Court over-ruled them and sent the case back to the Ninth Circuit.
It promptly found new grounds to rule against Sturgeon for a second time. He appealed once more to the Supreme Court. He was given a slim chance of getting another hearing on the same case, but Sturgeon prevailed.
And in the process, the significance of his case grew enormously.
Because the Ninth Circuit used what is called the “federal reserved water rights doctrine” to rule against Sturgeon the second time, attorney Matthew J. Sanders wrote last year in Trends, a publication of the American Bar Association, “Sturgeon III may have morphed from a little case about an arcane statutory provision into a much larger one about the source and scope of federal authority over public waters in Alaska.”
The reserved water rights doctrine is what the Ninth Circuit used to wrest management of subsistence fisheries from the state and turn that authority over to the federal government in 1995 in the well-known Katie John case.
While the Sturgeon case doesn’t mention subsistence, Ahtna attorneys Ostrovsky and Katchen note that the Ninth Circuit “implicated the subsistence priority by relying on Katie John….”
“The court,” they write in an amicus brief, “bootstrapped the Katie John decisions onto the instant dispute—even though the present litigation does not involve subsistence priority issues. In doing so, the Ninth Circuit simply assumed that ‘public lands’ has the same meaning under (the subsistence section of ANILCA) as it does throughout the rest of ANILCA.”
The only way Ostrovsky and Katchen see for the Supreme Court to fix this without reopening what they repeatedly refer to as the “subsistence wars” is for the justices to settle on different meanings for the term “public lands” for different sections of ANILCA.
Most attorneys seem to think this a legal stretch too far, but the Ahtna lawyers argue it is a necessity.
“Decades of turmoil and uncertainty have been replaced with some stability,” they argue. “And because the instant suit (Sturgeon) does not involve Title VIII’s subsistence priority, there is no basis for disrupting this equilibrium.”
A long, winding road
Ahtna is one of 12 regional Native corporations formed after passage of the Alaska Native Claims Settlement Act of 1971. That land-settlement legislation granted 52,000 Native people almost $1 billion and legal title to 44 million acres of land, a chunk of real estate about the size of Missouri.
The deal, Ostrovsky and Katchen argue, was negotiated with the “clear intent that the land conveyed to Alaska Native corporations should be used for economic development.”
Economically, Ahtna has been successful. Alaska Business last year ranked it as the 16th largest company in the state with $217 million in annual revenue. But a significant number of the corporation’s 1,800 shareholders still living in the Copper River basin depend on fish and wildlife for their sustenance, and they have long enjoyed a federal fishing and hunting priority over Alaskans from outside the region.
That priority stems from the Alaska National Interest Lands Act of 1980 (ANILCA), which created more than 100 million acres of new national parks and wildlife refuges in Alaska, and established special hunting and fishing privileges for “rural Alaskans.”
Ostrovsky and Katchen contend the subsistence provision in ANILCA was meant to make up for the failure of Congress to grant special hunting and fishing privileges to Alaska Natives in ANSCA, but that’s not what ANILCA says.
The ANILCA legislation says a priority was created for the “continuation of the opportunity for subsistence uses by rural residents of Alaska, including both Natives and non-Natives, on the public lands and by Alaska Natives on Native lands.”
As it stands today, Kodiak, population 6,100, is a federally designated rural community. Homer, population 5,600, is not. Glennallen, population 483, is a rural community. Moose Pass, population, 218 is not.
An estimated 60,000 Alaska Natives live in rural areas where they qualify for the subsistence priority. About the same number of Natives live in non-rural areas and are denied the priority.
Meanwhile, the state has its own subsistence law with a priority based on a variety of factors with place of residency but one of them, and some Alaskans remain opposed to whole the idea of granting priorities to anyone in the simple belief that all Alaskans should be treated equally.
ANCSA, Ostrovsky and Katchen concede, “extinguished any aboriginal hunting or fishing rights that may exist.’ (But) Natives gave up these rights because they were led to believe that these rights would be protected by the state and federal agencies.”
When that failed to happen, in the view of the two attorneys, Congress returned to the issue in ANILCA.
“…One of Congress’ primary aims in passing ANILCA was to codify the promises made during ANCSA that Native subsistence rights would be protected,” they contend, though the law provided only an “opportunity for subsistence” and doesn’t mention race.
An opportunity is not a right, and ANILCA, as managed by the federal government for decades now, has applied the subsistence priority broadly across color lines.
The largely white-bread community of Hope on the Kenai Peninsula just across Turnagain Arm from Anchorage is a designated subsistence community. It is 85 percent white and less than 5 percent Native, according to the demographic data provided by City-Data.com
And, though, Ostrovsky and Katchen repeatedly make references to a Native “hunting and fishing right,” no such right exists. ANILCA granted a “priority.” The “right,” if there is any, remained with the fish and wildlife.
Title I of ANILCA says, “it is the intent of Congress in this Act…to provide for the maintenance of sound populations of, and habitat for, wildlife species of inestimable value to the citizens of Alaska and the Nation.”
“Sound populations” sometimes come into direct conflict with subsistence, which in its pure form ties people to living off the land. And for people living off the land, conservation is not a consideration, because in the simple realities of survival it doesn’t matter if there are animals around next year if you starve to death today.
Thus ANILCA provided for an “opportunity for subsistence,” not subsistence. What people are to do when the opportunity fails to arise because hunting or fishing must be limited for resource conservation was not mentioned.
The lack of clear guidelines as to how this is all to work and how much opportunity is warranted in times of shrinking resource abundance led to civil disobedience in Western Alaska in 2012 when the Chinook salmon run to the Kuskokwim River faltered.
And at the state level, annual battles continue between Alaskans over who qualifies for the subsistence priority to kill big game and what the standards should be to define those granted a hunting priority.
Ostrovsky and Katchen consider this an equilibrium, but the Alaska subsistence battles are like an active volcano. They are always just a pulse away from erupting again.