Subsistence Management Notes – No. 4

On March 30th, 1994, in a decision that could fundamentally change the role the State of Alaska has traditionally played in the management of fisheries resources, Federal District Court Judge H. Russel Holland ruled that the State of Alaska did not have the authority to regulate subsistence fisheries within navigable waters of the state.

Judge Holland referenced public lands managed for subsistence must be within the State of Alaska as defined within ANILCA. These boundaries are delinated by the inland waters (i.e., most lakes, streams, rivers, and salt water areas) which extend three miles from the coastline.

In his ruling, Judge Holland stated that, “By limiting the scope of Title VIII (of ANILCA) to non-navigable waters”, the Secretaries of Interior and Agriculture have, “to a large degree, thwarted Congress’ intent to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.”

Judge Holland’s ruling is the latest in a series of long and complicated legal challenges between the state and federal agencies over the question of subsistence management. The precedent setting decision came in the case of two Athabascan elders, Katie John and Doris Charles, who wanted to be able to subsistence fish at their traditional camp along the Copper River of Alaska’s interior. The two women sued the federal government, arguing federal agencies have the responsibility to ensure subsistence rights under ANILCA.

1. The court ruling addressed two broad questions: Who is entitled to manage subsistence fisheries under ANILCA?; and
2. Where does ANILCA apply?

The “who” question is rooted in federal law which mandates a rural preference for the taking and use of subsistence resources. While state law allows all Alaskans equal access to these resources, regardless of where they live.

In answering the “where” question, judge Holland ruled that the federally mandated rural preference should apply to all navigable and non-navigable waters within the state.

Judge Holland granted a 60 day “stay” order on the decision. This is to allow for possible appeals to the Ninth Circuit Court. Should the Ninth Circuit uphold (rule in favor of) judge Holland’s decision, this will “preclude the State of Alaska from managing fish resources in navigable waters throughout the state of Alaska for subsistence purposes.”

It will also require the Secretaries of Interior and Agriculture, through the Federal Subsistence Board, to immediately take over and implement Title VIII of ANILCA in navigable waters in the State of Alaska.