A Kuskokwim River fishermen with a king salmon/Yukon Delta National Wildlife Refuge
What the federal government has against guys like Oscar Evon is hard to figure out, but it must be something.
Who you ask is Oscar Evon?
Evon is the director of regional affairs for the Anchorage-based Coastal Villages Region Fund, and he was one of the many defendants in court in Bethel a decade ago after the state of Alaska closed king salmon fishing in the Kuskokwim River to protect the struggling run of big fish.
Some fishermen along the more than 700-mile-long river that flows south-southwest through the state’s midsection from the glacier on the north side of the Alaska Range to Bering Sea protested the closure by ignoring it.
Those who joined in kept fishing, were cited and ended up before Alaska District Court Judge Fred Ward in the community of Bethel. Among them was Evon, an Alaska Native who grew up in the remote village of Kwigillingok where his then 84-year-old father was still living.
But in 2009, Evon revealed at trial, he’d left rural Alaska, as many do, for work in the state’s largest vity and biggest Native community. Anchorage is, according to Alaska Department of Labor data, home to nearly 23,000 Alaska Natives and American Indians, most of them in the former group.
In Anchorage, Yupik, Inupiat and Chugach Eskimos live peaceably alongside Athabascan, Tlingit and Haida Indians amid one of the country’s most diverse mixes of whites, Asians, blacks, Latinos and the more than 7 percent who classify themselves as multiracial.
The U.S. Department of the Interior has now sued the state of Alaska to take over management of fishing on the Kuskokwim to stop any of these people, including Evon, from fishing the river though few would if the state continued to manage the salmon there.
For someone living in Anchorage, it is a whole lot cheaper to drive 160 miles south to the Kenai River or 250 miles east to the Copper River to net a winter’s supply of fish. As Evon told Judge Ward, getting to Kwigillingok from Anchorage to fish is expensive.
“It’s not like we go fishing with six gallons of gas down(river) from Bethel,” he told the judge.
Decidedly not. There was in 2012 a $450 round trip airfare to Bethel with another $350 for a ticket to Kwigillinok and back. Then there was the 40 gallons of gas for the boat to run across Kuskokwim Bay to an upriver sit where the Evons have traditionally fished.
At 2012 prices in rural Alaska, Evon figured the gas cost $300. It’s a lot more expensive now.
If not for the family connections, it made little sense for Evon to travel all the way to Kwigillinok to subsistence fish salmon in 2012, and it would make even less sense in the current economic times.
So why is the federal government trying to prevent Evon or any other Anchorage resident from fishing the Kusko? One word: “Urban.”
Alaska’s great divide
ANILCA stipulates that the latter are to be given a priority when it comes to the harvest of fish and wildlife. Specifically, the law says this:
“…The taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes. Whenever it is necessary to restrict the taking of populations of fish and wildlife on
such lands for subsistence uses in order to protect the continued viability of such populations, or to continue such uses, such priority shall be implemented through appropriate limitations based on the application of the following criteria:
“(1) customary and direct dependence upon the populations as the mainstay of livelihood;
“(2) local residency; and
“(3) the availability of alternative resources.”
The law was well-intentioned when written and intended to protect the small number of people living off the land four decades ago with the population of rural Alaska small and only beginning to transition from a subsistence economy to a cash economy.
The state tried to follow the federal lead and similarly divide Alaskans, but a lawsuit filed against a rural-urban state law argued it was illegally discriminatory under the terms of the state constitution. The challenge, what is now widely called the McDowell Decision, reached the Alaska Supreme Court in 1989.
“The record supports the appellants’ claim that there are substantial numbers of urban subsistence users. A state study of subsistence use patterns found that of some 255 holders of subsistence salmon permits for the 1980 Tanana River fishery, approximately 20 percent exhibited the attributes commonly associated with a traditional subsistence lifestyle, even though they all resided in the urban Fairbanks area.”
Evon would be representative of one such urban individual connected to a traditional lifestyle in Alaska today.
The state justices in 1989 went to some length to describe the inherently discriminatory nature of the urban-rural separation, noting that a study of fish and wildlife use found more than 38 percent of the residents of Homer, an urban-designated community at the southern end of the Kenai Peninsula, obtain at least half of their meat and fish supply by hunting or fishing, while in Sitka, a Southeast Alaska community designated rural and granted a priority, 26 percent of households did no hunting and 7 percent did no fishing.
“We therefore conclude that the requirement contained in the 1986 subsistence statute, that one must reside in a rural area in order to participate in subsistence hunting and fishing, violates sections 3, 15, and 17 of article VIII of the Alaska Constitution,” they wrote in summary.
“The conclusion we have reached does not mean that everyone can engage in subsistence hunting or fishing. We do not imply that the constitution bars all methods of exclusion where exclusion is required for species protection reasons. We hold only that the residency criterion used in the 1986 act which conclusively excludes all urban residents from subsistence hunting and fishing regardless of their individual characteristics is unconstitutional.”
A bit of chaos ensued, although the takeover of hunting on federal lands wasn’t as big a deal as it appeared. Much of the 222 million acres owned by the federal government is comprised of mountain tops, glaciers, and national parks.
The Alaska Statehood Act allowed for the selection of about 104 million acres by the state, and much of that land is in the road-accessible parts of the state where most of the hunting and fishing by urban residents has traditionally taken place.
Plus the state, like the other states, owns the water and was given ownership of the beds of navigable rivers. What rivers were “navigable” did become another issue of dispute between state and federal officials but a federal court finally ruled that any body of water that could be used “as a route for transportation” qualified.
That 1987 ruling basically granted the state control of anything on which someone could float a two-person canoe, and thus the state was considered to have secured the authority to continue to manage salmon fisheries.
Water equals land
Enter the late Katie John, an Athabascan elder living far up the Copper River in the 1960s when the state banned fishing with nets and fishwheels in the upper river, arguably to protect runs of Chinook (king) and sockeye salmon.
The Alaska Board of Fisheries, which sets fishing regulations, was then even more dominated by commercial fishing interests than it is today, and among commercial fishermen, the belief is in-river harvest of salmon is an inherently bad thing because it disturbs salmon on their “spawning beds.”
The Park Service had become involved in managing the area near Batzulnetas as the result of the 1980 ANILCA creation of the more than 20,000-square-mile Wrangell-St. Elias National Park and Preserve, the largest federal reserve in the nation.
In 1984, John and Charles petitioned the state Fish Board to allow fishing to resume at Batzulnetas, but the Board turned down the idea, suggesting the women fish farther downriver at Slana, Chistochina, or Chitina, where subsistence fisheries still existed.
John didn’t like the decision. She, according to the Park Service history, observed that “we’re Indian people and I don’t like park rangers or game wardens coming in here telling us what to do like they own everything. That makes me mad…. I don’t want to be on somebody else’s land. I like to do my fishing on my own land right there.”
She got in touch with the Colorado-based Native American Rights Fund (NARF), which sued the state on her behalf. Rather than fight a long legal battle, the state in 1987 allowed for a permitted fishery at Batzulnetas with a limit of 1,000 sockeye. NARF didn’t like the limit; so the state lifted it in 1988.
Still, NARF attorneys pressed on, arguing that requiring permits was an onerous restraint, and a federal District Court judge in 1989 granted John and Charles a permit-free fishery to remain open continuously from June 23 through October 1.
It was the same year as the McDowell decision.
“The net result of the year’s two court decisions was the creation of a subsistence fishery that included Batzulnetas in which all Alaskans could take part, regardless of their rural or urban residency,” the Park Service history says.
John and others did not like this idea. Where is the subsistence “priority” for rural residents if there is the potential for some urban residents to participate in the fishery even if they don’t?
So John and NARF asked a newly created Federal Subsistence Board to make sure this couldn’t happen. The Board deferred, saying it had no authority over navigable waters.
NARF then went back to court once more to argue that the Copper River, in which John and Charles were fishing, should be considered “public land” under the terms of ANILCA.
The case was argued before U.S. District Court Judge H. Russel Holland in 1991, but dragged out for years as other villages filed similar claims for relief and NARF pressed the Secretaries of Agriculture and Interior to seize control of fisheries management on Alaska rivers.
The secretaries, however, refused to take action until after Holland in 1993 wrote a draft opinion in which he observed “much of the best fishing is in the large navigable waterways where one has access to the most fish. By their regulations which exclude navigable waters from the jurisdiction of the Federal Subsistence Board, the (Interior) Secretary abandoned to state control of the largest and most productive waters used by rural Alaskans who have a subsistence lifestyle.”
“Justice Department lawyers – prodded by their superiors in the Clinton administration,” according to the Park Service history, at that point advised the secretaries that they should take over management on some public waters, but Holland granted them far broader authority.
In March 1994, the judge declared the navigable waters of Alaska “public lands.”
“Native groups, not surprisingly, were elated by the decision,” according to the Park Service. The administration of then Gov. Wally Hickel was not. It immediately appealed to the Ninth Circuit Court of Appeals, where a three-judge panel upheld the ruling on a 2-1 vote.
The California-based justices did, however, limit Holland’s ruling. Navigable waters were “not ‘public land’ within the meaning of ANILCA because the United States does not hold title to (them),” they wrote, but ANILCA appeared to give the federal government the authority to take control of fisheries management in the navigable waters of parks, refuges and possibly within the boundaries of some other public lands.
“ANILCA’s language and legislative history do not give us the clear direction necessary to find that Congress spoke to the precise question of which navigable waters are public lands,” they added, along with a wish “that the federal agencies will determine promptly which navigable waters are public lands subject to federal subsistence management.”
What followed was a state attempt to write a new subsistence law similar to the federal law so that the feds might return day-to-day management authority to federal managers. That failed.
Efforts to broker some other sort of arrangement that allowed for the return of management to the state went on for years, but an agreement was never reached. State and federal fisheries managers, eventually, settled into an uneasy system of co-management wherein the feds tried to ensure a subsistence priority to salmon in rural areas while the state tried to maintain sport fisheries and largely continued to manage the commercial salmon fisheries in marine waters.
Deal breaker
Then along came a very stubborn moose hunter named John Sturgeon. For years, he’d hauled a one-man, air-cushioned vehicle – commonly known as a hovercraft – from the tiny community of Eagle down the Yukon River into the beyond-seldom-visited Yukon-Charley Rivers National Preserve and used it to navigate up the shallow Nation River draining Canada’s Yukon Territory to the north and west.
Having solved the problem of how to easily travel up and down the Nation, Sturgeon had his own little moose hunting paradise until a National Park Service ranger came along and told him he couldn’t use his hovercraft in the preserve.
Sturgeon protested that ANILCA, the same ANILCA that created the subsistence mess, also specifically protected “traditional” means of travel in the state’s newly created parks and preserves, and the hovercraft was established as traditional before the law was written.
Furthermore, he argued, the Nation River was navigable, meaning that not only was the water in the river state-owned but so was the riverbed beneath and thus the Park Service had no authority to dictate who got to use it.
No, no, the ranger said. The river is in the preserve, which gives the Park Service authority, and hovercraft are banned because they are banned everywhere in parks in the U.S. Sturgeon appealed the ranger’s decision to his superiors, but these things being what they are, the ranger’s superiors decided they needed to back their man and let the ranger write the rules for the Yukon-Charley.
Sturgeon called bullshit on that and did the only thing there was left for him to do. He sued.
Amazingly, his lawsuit involving a lone moose hunter and a national preserve rarely visited by more than 2,000 people per year in recent times (for comparison sake, Yellowstone National Park can welcome more visitors on a busy summer day) went all the way to the Supreme Court of the United States, where the nation’s chief jurists decided that Sturgeon was right and the Park Service was wrong.
Sturgeon’s battle with the ultimate City Hall cost him more than $1 million, but in the end the judges decided that the Nation River was navigable; the Statehood Act had awarded Alaska title to the land beneath navigable waters; and thus the state – not the Park Service – was the only government entity with authority to establish the rules for who could or couldn’t use the waterway.
And this created a bit of a problem as noted by attorney Don Mitchell, the former general counsel to the Alaska Federation of Natives (AFN) and a man who in that role was deeply involved in helping draft ANILCA.
The legal question in the Sturgeon case, he says, “was whether the navigable Nation River was ‘public lands’ as section 102(3) of ANILCA defined that term. That was the exact same legal question as the legal question that had been at issue in Katie John.
“In Sturgeon v. (National Park Service Regional Director Bert) Frost, a decision it issued in 2019, a unanimous US Supreme Court said the answer was no.
“At the time everyone understood that Sturgeon and Katie John involved the same legal issue. Those everyones included (then) Gov. Bill Walker and his attorney general (AG), Jahna Lindemuth.
“But Walker was trapped. Because as governor he had to publicly side with Sturgeon. But in order to have any chance of being reelected in 2018 he needed the Native vote. And the Natives would have been outraged if his AG had gone out after Katie John.
“To try and square that circle politically, in a brief on behalf of her client,” Lindemuth argued that a web-footed bird paddling around on the pond and quaking was a seagull, not a duck.
Unfortunately, Mitchell said, it’s obvious the duck is a duck.
“It is so obvious that if the Sturgeon decision is correct (and it is because the U.S.Supreme Court says it is), then the Katie John decisions are wrong and should be overruled that when (Republican Mike) Dunleavy became governor, I assumed he would tell his AG to defend the State’s regulatory authority be suing to invalidate the Katie John decisions,” Mitchell said. “But Dunleavy hasn’t done that.”
Instead, the opposite has happened. The federal government has sued the state to take over management of the Kuskokwim River because it passes through the Yukon Delta National Wildlife Refuge.
Mitchell, who is no longer with the AFN, and has fallen out of favor with attorneys now advising Alaska Natives leaders, admits he doesn’t get it, but figures the feds must have some plan.
“In 1992 Bob Anderson,” he notes, was the head attorney at the NARF office in Anchorage, and Anderson “came up with the legal theory in the Katie John lawsuit he filed that the navigable Copper River qualified as ‘public lands’ because the federal government had ‘federal reserved water rights’ and those rights were tantamount to an ownership interest” that gave the feds the authority to manage the fish in those waters.
This is the same Bob Anderson who became the chief attorney for Interior in January of last year.
Mitchell admits he can’t figure out what’s up, “but Anderson is a smart fellow and now a long experienced attorney. Being such, he understands both everything that I’ve related above and that the Katie John decisions cannot be reconciled with the Sturgeon decision.”
“I was general counsel of AFN at the time (of Katie John), and I advised that Anderson’s theory was, as a matter of law, nonsense. But shortly after Anderson filed Katie John I departed AFN and, as a consequence, I had no further involvement other than to watch from the sidelines as the litigation played out.”
He is still watching, and now there appear several possibilities for what is going on:
1.) Anderson believes Interior can get the courts to carve out an exception to the standards governing ownership of navigable waters, as the Ninth Circuit of Appeals suggested, that leaves Alaska’s navigable waters in state ownership only for certain purposes.
2.) Anderson believes Interior can come at the Sturgeon case from a different direction and somehow get the Supreme Court to reverse its earlier decision, something some national environmental groups would love to see happen.
3.) Anderson is simply putting on a show to try to convince Alaska Natives that the Democrat Biden administration cares about them more than the Republican Dunleavy administration.
Whatever the case, the only real losers appear to be guys like Evon if, of course, the feds intend to enforce their law limiting subsistence to “rural” residents and not create a new definition for “rural” as well.
