State’s claim to ownership of Kuskokwim River threatens local communities and salmon

In a Sept. 21, Homer News opinion piece, Doug Vincent-Lang, commissioner of the Alaska Department of Fish and Game, and Treg Taylor, Alaska attorney general, claim, we “find ourselves today in our legal response to the federal government’s repeated attempts to seize control of the Kuskokwim River and take charge of the fish within.”

According to the authors:

Alaska, like all states, was granted ownership of its navigable waters at statehood. The Kuskokwim River was deemed “navigable waters,” making the riverbed the property of the State of Alaska from mean high water marks on both sides of the river. This fact is undisputed. In 1980, Congress passed a law that made the federal government “neighbors” to the riverbed by giving them land next to the river, but ownership of the Kuskokwim did not change. Despite this, the federal government is attempting to seize control of the fisheries in the Kuskokwim…

Rather than “neighboring” the river, however, the Kuskokwim actually runs right through the Yukon Delta National Wildlife Refuge. Because the river, therefore, runs through federal lands, any state claim of such ownership likely does not justify interference with valid federal rights to regulate water use or fishing. In this case, 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 subsistence fishing to only rural Alaskans. As Vincent-Lang and Taylor admit, the “federal move seeks to make it a crime for most Alaskans to fish on the Kuskokwim …”

In fact, such regulations are critical at this time because while the Kuskokwim is one of the most important subsistence rivers in the state to local residents, both king and chum salmon returns have been dismal for the last several years, preventing Native communities from critical salmon harvests. Therefore, by forcing the State to limit fishing to local Native communities only, the feds are enforcing the “Rural Preference” as required by the Alaska National Interest Lands Conservation Act and simultaneously protecting the fishery.

Regardless, Vincent-Lang and Taylor claim that “in a bizarre twist in 2022, the Biden Administration’s Department of Justice sued the State of Alaska for managing its own river in an aggressive push to wrest management control of the Kuskokwim from Alaska.” While if a stream is determined to be navigable it is generally considered state waters, the Supreme Court has consistently rejected complete ownership of water by either the federal or state governments where as in the case of the Kuskokwim, the river or stream is located on federal land.

Even more ominous for Native fishing rights is the fact that, in furtherance of the State’s assertion of ownership of the Kuskokwim River, Vincent-Lang and Taylor claim that the “U.S. Supreme Court reaffirmed in Sturgeon v. Frost that ‘navigable waters’ are State-owned and managed and they are exempt under ANILCA.” That decision came after John Sturgeon, in 2007 sued the National Park Service after rangers for 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 ANILCA, the River did not qualify as “public land” and the Park Service, therefore, did not have the authority to prohibit power boats on the part of the river found within the preserve.

The fact that the State similarly claims that the Kuskokwim River is not public land is a direct threat to the federal rural preference because, if this argument prevails in court, it would likely result in overturning of the Katie John case, which arose out of similar circumstance to the Kuskokwim dispute. That case began in 1964 after the State of Alaska closed the subsistence fishery on the Batzulnetas River, citing conservation reasons despite no evidence of such need, while at the same time allowing downstream non-Native sport and commercial fishermen to continue to take fish. Ultimately, the Ninth Circuit Court of Appeals decided against the State, and ANILCA established the rural preference to benefit rural Alaskans who subsistence fish or hunt on federal lands.

In a July 22, 2022, interview with Alaska Public Media, Anna Crary, an attorney with Ahtna Inc. which is one of the plaintiffs in the case, affirmed the threat to Katie John should the state’s argument regarding the definition of public lands in the Kuskokwim litigation prevail, stating this is a “really big deal, and they’re kind of being sneaky about it.” When asked whether it is attempting to overturn Katie John as part of the Kuskokwim lawsuit, the Alaska Department of Law merely stated that this is only one of many of the State’s legal strategies.

So, when Vincent-Lang and Taylor claim that the State has to prevent the United States from “seizing control of the Kuskokwim River” because the “mismanagement of our fisheries resources from outside entities was one of the primary drivers behind statehood,” we should be asking them why want to take away a major means of protecting those same fisheries and the rights of Native Alaskans to continue to access critical subsistence resources.

Hal Shepherd is the principal consultant with Water Policy Consulting, LLC in Fritz Creek.