United States v. Alaska

1

THE UNITED STATES OF AMERICA, Plaintiff, and KUSKOKWIM RIVER INTER-TRIBAL FISH COMMISSION, et al., Intervenor-Plaintiffs v. THE STATE OF ALASKA, et al., Defendants.

No. 1:22-cv-00054-SLG

United States District Court, D. Alaska

March 29, 2024

ORDER RE MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT

SHARON L. GLEASON UNITED STATES DISTRICT JUDGE

Before the Court at Docket 70 is the United States' Motion for Summary Judgment. The State of Alaska^[1] filed a Combined Motion for Summary Judgment and Opposition to the United States' Motion for Summary Judgment at Docket 72 and Docket 73.^[2] The United States filed a Reply Memorandum in Support of Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment at Docket 101. Intervenor-Plaintiffs joined the United States' Motion for Summary Judgment.^[3] Each filed a combined response in opposition to the State's motion for summary judgment and reply in support of the United States' motion for summary judgment.^[4] The State filed a Reply in Support of Motion for Summary Judgment at Docket 122. While the Court previously indicated that oral argument could be held,^[5] upon review of the parties' briefing oral argument was not requested by any party and was not necessary to the Court's determination.^[6]

BACKGROUND

The United States Supreme Court observed that Congress has “repeatedly recognize[d] that Alaska is different-from its ‘unrivaled scenic and geological values,' to the ‘unique' situation of its ‘rural residents dependent on subsistence uses,' to ‘the need for development and use of Arctic resources with appropriate recognition and consideration given to the unique nature of the Arctic environment.'”^[7] The unique situation of rural Alaskans' dependence on subsistence uses is squarely implicated in this case.

The Kuskokwim River runs more than 700 miles in southwest Alaska before it ends in the Bering Sea. Approximately 180 miles of the Kuskokwim River runs within the Yukon Delta National Wildlife Refuge (“the Refuge”) beginning at the mouth of the river.^[8] The Kuskokwim River contains several species of salmon, including Chinook and chum salmon. “The residents of the local villages along the Kuskokwim River and its tributaries are almost entirely federally qualified subsistence users, both native and non-native, who are highly dependent on salmon as a source of food.”^[9] In addition, “subsistence harvest of salmon is engrained within the culture and identity of these Kuskokwim area rural residents.”^[10]

I. Alaska National Interest Lands Conservation Act

In 1980, Congress enacted the Alaska National Interest Lands Conservation Act (“ANILCA”).^[11] One of ANILCA's primary objectives is to protect and preserve the opportunity for rural residents to engage in a subsistence way of life.^[12]Congress expressly found that “the continuation of the opportunity for subsistence uses by rural residents of Alaska, including both Natives and non-Natives, . . . is essential to Native physical, economic, traditional, and cultural existence and to non-Native physical, economic traditional, and social existence.”^[13] The “Congressional statement of policy” in § 802 of ANILCA provides that “the purpose of this subchapter is to provide the opportunity for rural residents engaged in a subsistence way of life to do so.”^[14]

Section 804 of ANILCA, entitled “Preference for subsistence uses,” provides that “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.”^[15] ANILCA defines “subsistence uses” to mean “customary and traditional uses by rural Alaska residents of wild, renewable resources.”^[16] Thus, Title VIII of ANILCA^[17] requires that “rural Alaska residents be accorded a priority for subsistence hunting and fishing on public lands.”^[18] In enacting Title VIII of ANILCA Congress indicated it was “invok[ing] . . . its constitutional authority under the property clause and the commerce clause to protect and provide the opportunity for continued subsistence uses on the public lands by Native and nonNative rural residents.”^[19]

Pursuant to § 805(d) of ANILCA, “Congress gave the state authority to implement the rural subsistence preference by enacting laws . . . consistent with ANILCA's operative provisions.”^[20] If Alaska “enforce[d] a rural subsistence priority through the exercise of its own sovereignty, Congress [would] return primary regulatory authority over [subsistence uses] to state stewardship,” but if Alaska failed to do so, then “the federal government would step in to protect subsistence [uses] as traditionally practiced by rural Alaskans.”^[21] Promptly after ANILCA's enactment, the State enacted laws consistent with Title VIII's rural subsistence preference, and, in 1982, “the Secretary of the Interior certified the state to manage subsistence hunting and fishing on public lands” in Alaska.^[22]

However, in 1989, the Alaska Supreme Court in McDowell v. Alaska “struck down the state act granting the rural subsistence preference as contrary to the Alaska state constitution.”^[23] The court “stayed its decision to give the [Alaska] legislature an opportunity to amend the constitution or otherwise bring its program into compliance with ANILCA,” but the state legislature “failed to act.”^[24] Therefore, in 1990, “the federal government withdrew Alaska's certification and took over implementation of Title VIII.”^[25] To this day, the relevant provisions of Alaska's Constitution remain the same, and so a rural subsistence preference remains unconstitutional under Alaska law.

In ANILCA, Congress directed the Secretaries of the Interior and Agriculture to promulgate regulations in furtherance of ANILCA's directives.^[26] Following McDowell, the Secretaries enacted temporary emergency regulations in 1990 creating the Federal Subsistence Board (“FSB”) to “administer[]” “[subsistence taking and uses of fish and wildlife on public lands.”^[27] The regulations were made permanent in 1992, and they presently provide that the Secretaries of the Interior and Agriculture “assign [the FSB] responsibility for administering the subsistence taking and uses of fish and wildlife on public lands.”^[28] The FSB is composed of:

A Chair to be appointed by the Secretary of the Interior with the concurrence of the Secretary of Agriculture; two public members who possess personal knowledge of and direct experience with subsistence uses in rural Alaska to be appointed by the Secretary of the Interior with the concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; Alaska Regional Director, National Park Service; Alaska Regional Forester, U.S. Forest Service; the Alaska State Director, Bureau of Land Management; and the Alaska Regional Director, Bureau of Indian Affairs.^[29]

The FSB is “empowered . . . to implement Title VIII of ANILCA,” and it is authorized to “[i]ssue regulations for the management of subsistence taking and uses of fish and wildlife on public lands”; “[a]llocate subsistence uses of fish and wildlife populations on public lands”; and “[r]estrict the taking of fish and wildlife on public lands for nonsubsistence uses or close public lands to the take of fish and wildlife for nonsubsistence uses when necessary for the conservation of healthy populations of fish and wildlife, to continue subsistence uses of fish and wildlife, or for reasons of public safety or administration.”^[30] The FSB can also entirely “[r]estrict or eliminate taking of fish and wildlife on public lands.”^[31] In addition, the FSB has the authority to adopt “special actions” to “open or close public lands for the taking of fish” “if necessary to ensure the continued viability of a fish . . . population” or “to continue subsistence uses of fish.”^[32]

II. Federal and State Closures of the Kuskokwim River

In 2021 and 2022, the FSB and federal field officials determined that closing the 180-mile section of the Kuskokwim River within the Refuge to non-subsistence uses was “necessary to conserve the fish population for continued subsistence uses of the Chinook salmon upon which rural residents of the area depend.”^[33]Accordingly, “the FSB and agency field officials exercised their authority under ANILCA to issue emergency special actions to close the 180-mile-long section of the Kuskokwim River within the Yukon Delta National Wildlife Refuge . . . to nonsubsistence uses, while allowing limited subsistence uses by local rural residents under narrowly prescribed terms and means of harvest.”^[34] In both 2021 and 2022, the Alaska Department of Fish and Game (“ADF&G”) subsequently issued its own emergency orders that overlapped with, and to some degree were inconsistent with, the FSB's emergency actions.^[35]

a. 2021 Closures

In May 2021, federal authorities, in an emergency special action, closed the Kuskokwim River located within the Refuge to all gillnet fishing of salmon, beginning on June 1,2021. However, the closure action provided five dates during which federally qualified subsistence users could use gillnets to fish.^[36] Federal authorities later added additional days and locations during which federally qualified subsistence users could use gillnets within the Refuge.^[37] At no time during the federal closure were non-federally qualified users allowed by federal emergency special actions to gillnet fish on the Kuskokwim River within the Refuge.

Several days after the first federal closure order was issued in May 2021, ADF&G issued an emergency order closing parts of the Kuskokwim River to gillnet fishing, which was consistent with the federal closure action.^[38] At the same time however, ADF&G...