A fish wheel churning the Yukon River for salmon in 1917/University of Washington Image Bank

The state of Alaska and the federal government appear headed toward yet another tussle over the long controversial and divisive issue of “subsistence,” but this time with a twist.

Not only are federal officials considering taking over management of declining runs of Yukon River Chinook salmon, but they are also talking about – for the first time – deciding which subsistence fishermen should get to harvest the big kings.

Subsistence fishing in Alaska, like in Africa, is primarily geared toward providing food security for the poor even if it has become entangled in all sorts of cultural issues.

The U.S. Congress in the 1970s decided that it was important to preserve “the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation; for the making and selling of handicraft articles out of nonedible by-products of fish and wildlife resources taken for personal or family consumption; and for the customary trade, barter or sharing for personal or family consumption,” and enshrined those thoughts into law in 1980 in the Alaska National Interest Lands Conservation Act (ANILCA).

ANILCA thus established a “rural priority” for the harvest of wild resources, and it has been a contentious issue, primarily as regards wildlife management, almost ever since.

Given that Alaska is home to tens of thousands of hunters both urban and rural, not to mention about 900 guides who generate an estimated $62.4 million in economic output from approximately 3,100 non-resident hunters every year, there has seldom been enough game – as Alaskans often refer to wildlife – to go around.

And there never will be.

Though the state is often touted for its bounty of wildlife, the reality is that Alaska is a far northern region of the planet cursed with a lack of sunlight and long, cold winters. The Alaska Department of Fish and Game reports a statewide moose population of 175,000 to 200,000 animals or about one moose for every 3.5 square miles of land.

Sweden, where temperatures are significantly warmer than in Alaska thanks to the Gulf Stream, is home to about 400,000 moose or about 3 moose per square mile, making it almost the opposite of Alaska. Hunters in that Scandinavian country about a quarter the size of Alaska sustainably harvest about 100,000 moose per year.

Alaska hunting records show a total harvest of about tenth as many moose – 10,000 – in 2020, the last year for which complete records are available. Were the state to engage in more highly-controversial predator control, it might – at best – be able to double the size of that human harvest.

At best, and that would boost it to only about a fifth of the kill in Sweden at the expense of wild predators. In Alaska, moose are managed not only to feed people but also a lot of bears and wolves.

Given that the situation is much the same with other species of big game – caribou, Dall sheep and mountain goats the most obvious among them – there have been since the passage of ANILCA constant and heated battles over who is allowed to hunt where and what and when.

Salmon, however, have largely remained plentiful enough that in the few situations where protections were needed to maintain the subsistence priority there remained enough surplus fish to allow non-subsistence users to fish even if they were restricted from catching as many fish as some might have wanted.

No more.

Alaska’s Columbia

These days, the Chinook of the nearly 2,000-mile-long Yukon River are in as much trouble as the Chinook of the fabled Columbia River of the Pacific Northwest.

Hydroelectric dams are largely blamed for the decline of the big kings in the 1,250-mile Columbia, although a new study has pointed to marine survival in the North Pacific Ocean as an even bigger problem.

No one knows for sure why kings are suffering in the Yukon although some studies hint at the possibility they, too, could be losing out in the ocean due to competition for food as populations of Bristol Bay sockeye salmon and Russian pink salmon explode in a warming Bering Sea.

The only dam on the Yukon is near Whitehorse, Yukon Territory, Canada, approximately 1,750 miles from the sea at the far end of the range of Chinook spawners. The number of wild Chinook reaching the dam’s fish ladder peaked at 2,500 in 1996.

The 10-year average is now 1,074, according to the United States and Canada
Yukon River Joint Technical Committee, and only 274 made it back last year.

Under the terms of the Pacific Salmon Treaty, the U.S. is bound to restrict its Yukon fisheries to ensure at least 42,500 Chinook make it across the board into Canada. Last year, “only 15,815 Chinook salmon (were) counted at the Eagle sonar project near the U.S./Canada border” last year, according to Alaska Fish and Game, but the estimated total passage was about twice that.

The low numbers came despite the closure of the commercial fishery in Alaska and highly restricted subsistence harvests given a pre-season, “drainage-wide outlook…for a run size of 102,000 to 189,000 fish,” according to Fish and Game. “This outlook was smaller than the 2020 outlook, and potentially as small as the runs from 2012 and 2013.”

The actual return, based on a sonar count from the lower river, was later calculated at approximately 125,000 Chinook with about 33,000 of those fish believed to have been of Canadian origin.

“The harvest of Canadian-origin Chinook salmon in the U.S. was estimated to be 1,214 fish, which was above the U.S. harvest share of zero fish,” the joint, end-of-season report from the U.S. and Canada concluded. “The estimated U.S./Canada border passage of Chinook salmon was 31,758 fish. The mainstem harvest of Chinook salmon in Canada was estimated to be 306 fish, which was above the Canada harvest share of zero fish. The spawning escapement of mainstem Canadian-origin Yukon River Chinook salmon was estimated to be 31,452 fish, which was below the lower end of the interim management escapement goal range of 42,500–55,000 fish.”

The outlook for this year isn’t much better. The joint forecast is for a return to the Yukon of 41,000 to 62,000 Canadian-origin kings. If the return is in the lower end of that range, it would already be below the minimum goal for the escapement of Chinook into Canada.

Given the grim forecast, it would appear to make little difference who manages a fishery in which little or no fishing takes place. Runs of chums to the Yukon are bigger than runs of Chinook, and some fishing is expected to be allowed for the former with the possibility for some Yukon Chinook fishing if early sonar counts in the lower river are high enough.

But whether the state manages or the feds manage, fishing is expected to be just as sharply restricted.

Still, the Federal Subsistence Board held hearings on a plan to take over management and is to make a decision in early May.

State’s rights

The Alaska Statehood Act, which preceded ANILCA by a couple of decades, granted Alaska the authority to manage fish and wildlife within the boundaries of the state as in the other 49 states.

But that authority was in 1985 challenged by the late Katie John, an Alaska Native from the village of Mentasta along the Copper River near the U.S.-Canada border. She argued that a state closure of subsistence fishing in the upper reaches of the Copper violated the ANILCA requirement for a priority for a “rural resident” harvest of fish.

After she filed suit, a National Park Service history notes, the Alaska Board of Fisheries responded by allowing Mentasta area “locals, after obtaining a permit, to harvest a maximum of 1,000 sockeye salmon. The following year, the Board further relaxed its rules and eliminated the salmon quota. But the women pressed on, still feeling that their rights were being curtailed.”

Lawyers for John argued the state should not be allowed to limit the fishing season to specific openings or require permits. A federal District Court judge subsequently ruled the fishery should run from June 23 to October 1 with no permit requirement.

“But before the order could take effect,” the park service history notes, “the December 1989 McDowell decision (by the Alaska Supreme Court) struck down the rural preference….The net result of the year’s two court decisions was the creation of a subsistence fishery that included (the community of) Batzulnetas in which all Alaskans could take part, regardless of their rural or urban residency.”

There was never a rush of urban Alaskans to Batzulnetas, which is not the best place to fish for sockeye or king salmon in the Copper River drainage, but the McDowell decision lit a flame under the already contentious harvest of the state’s very limited number of big-game animals, and in 1990, the feds seized the authority to manage wildlife on federal lands in the state.

Alaska Fish and Game remained in charge of management on 103 million acres of state land, where is found much of the more productive wildlife habitat in the more accessible areas of the state, and of fish in Alaska’s “navigable waters” over which the Statehood Act granted authority.

John and her attorneys went back to court then, “because,” as the Park Service history puts it, “fish populations in the state’s navigable waters were still managed by state authorities, (and) urban populations still had the same opportunities to harvest fish for subsistence purposes as their rural counterparts.”

Eventually, U.S. District Court Judge H. Russel Holland ruled that the “navigable waters” in Alaska were “public lands” under the terms of ANILCA, which gave the federal government the ultimate authority over their management. The state appealed the ruling, but lost the case before the California-based Ninth Circuit Court of Appeals.

The case was eventually appealed to the U.S. Supreme Court, but it in 1996 turned down a request for review. Some thought the contentious battles between urban and rural Alaskans over hunting and fishing “rights” that had gone on for years would end there.

They didn’t.

Navigable versus navigable

Enter Anchorage moose hunter John Sturgeon who had for decades hunted moose on the remote and difficult to access Nation River, a Yukon tributary.

Sturgeon solved the access problem there by hauling a small, one-person hovercraft down the Yukon to the Nation and then using it to travel up and down the shallow waterway. No one ever complained.

But in 2007, a National Park Service ranger who happened to be on patrol in the remote and seldom-visited corner of the Yukon-Charley Rivers National Preserve where the Nation meets the Yukon said the hovercraft was a no-no because the Park Service had arbitrarily banned hovercraft from the lower-48 lands it manages long ago.

He ordered Sturgeon off the Nation. Sturgeon countered that ANILCA itself made exceptions for motorized vehicles in Alaska as the Park Service itself conceded in recognizing that “the types of access found in ANILCA park areas are generally more permissive than what is found in parks in the Lower 48…(But) this (access) section also authorizes the Secretary (of the Interior) to close an area otherwise open to these types of motorized vehicles for such ‘special access’ if, after notice and a hearing in the vicinity of the affected area, the Secretary finds that such use would be ‘detrimental to the resource values of the unit or area.'”

Sturgeon thought the Park Service needed to show how his one-man, 10-foot-long hovercraft – a vehicle specifically designed to travel over water or land without damaging the surface below – could be “detrimental to the resource” in the Nation River drainage. The Park Service decided it didn’t need to bother with such things and quickly dismissed his appeal of the ranger’s decision.

So Sturgeon, the one-time director of the Alaska Division of Forestry, went to court. It seemed a foolish move. It’s hard to beat Uncle Sam in court.

And Sturgeon predictably lost his case before U.S. District Court Judge H. Russel Holland. Sturgeon appealed. Veteran lawyers didn’t think he had a chance before the historically and notoriously liberal Ninth Circuit.

He didn’t.

The Ninth Circuit couldn’t understand why any special accommodations need be made for travel along Alaska rivers in the modern age. The judges figured Alaskans had no need to use rivers for access to any place anymore because people can now fly from place to place if they need to get around.

Sturgeon appealed again, this time to the Supreme Court of the United States (SCOTUS). It was the ultimate long shot. SCOTUS only hears a few cases per year.

A dispute involving a lone moose hunter and the Park Service in a remote corner of a 4,000-square-mile natural preserve visited by less than 15,000 people per year didn’t seem like a case that would rise to the level of a Supreme Court review.

But the court decided to hear it and, in a rare show of unanimity that surprised many, ruled 9-0 in Sturgeon’s favor. The court concluded the Nation River was navigable; the state, not the Park Service, had authority over the management of navigable waters; and thus the Park Service had no authority to tell Sturgeon what he could or couldn’t do on the Nation.

The Katie John ruling by the Ninth Circuit – the one concluding that navigable waters are “public lands,” at least for the purposes of fishery management? It was pretty much left hanging in limbo where it still hangs.

Attorneys for Ahtna, Inc. – an Alaska Native corporation whose lands border the Copper River – described the problem this could cause in a brief before the court ruling in the Sturgeon case. They warned that granting the state – not the federal government – control over navigable waters would eliminate the federal government’s authority to manage the fisheries on Alaska’s major rivers.

Ahtna attorneys Nicholas Ostrovsky and Jonathon Katchen cautioned that state authority over fish could reignite the “subsistence wars.” But those wars never really ended, and it seems inevitable that they will continue as Alaska’s population grows.

Alaska’s limited wildlife population, in particular, can feed a comparative handful who subsist on wild game, or it can provide hunting opportunities for the many with seasons managed to ensure most go home emptyhanded.

And the unpredictability of the state’s salmon returns ensures commercial fishermen, who now net more than 98 percent of the catch, cannot be guaranteed; subsistence fisheries may not always be able to provide; and the rural-urban divide that split the state since the passage of ANILCA might end up pitting village against village.

The Federal Subsistence Board is now looking at prioritizing which people in which villages are allowed to fish if there is fishing allowed along the Yukon this year.

Strangely quiet in all of this is the Alaska Outdoor Council (AOC), which has long taken the position that hunting and fishing priorities are divisive and not all that effective. It has said nothing publicly about the federal plan.

When queried about the issue, AOC director Rod Arno indicated only that it would seem better for the feds to take the heat than the state if anyone is to start deciding how to allocate fishing privileges at the village level.

The state, meanwhile, has yet to say whether it will abdicate to a federal takeover or not, although Deputy Commissioner of Fish and Game Ben Mulligan, told a federal hearing in Fairbanks that if federal fishery managers are put in charge they “would still need to seek our guidance and approval for any management actions they recommend as this would impact the obligations the Department of Fish and Game has under the Pacific Salmon Treaty as a responsible management entity to manage for the objectives for Canadian-origin stock,” KUAC-TV reported.