By: James Brooks, Alaska Beacon
The state of Alaska is asking the U.S. Supreme Court to decide whether rural Alaskans should continue to get preferential fishing rights on most rivers and lakes within federal parks, preserves and reserves.
On Monday, the Alaska Department of Law asked the Supreme Court to reconsider a ruling from a three-judge panel from the 9th U.S. Circuit Court of Appeals, which upheld the state’s existing two-tiered subsistence fishing system last month.
State attorneys have argued unsuccessfully since 2021 that federal law, as interpreted by recent rulings from the Supreme Court, means the state, not the federal government, has the power to regulate fishing in navigable waters on federal land.
A federal law, the Alaska National Interest Lands Conservation Act, requires that rural Alaskans be given preferential treatment when hunting and fishing are regulated in Alaska. Simultaneously, the Alaska Constitution forbids that kind of preference.
For decades, the result has been a two-tiered system under which the federal government regulates hunting and fishing on federal land and water, and the state regulates it everywhere else.
Under the state framework, someone from Anchorage would have the same fishing rights on the Kuskokwim River as someone who lives a mile away. Under the current system, the local resident gets priority in parts of the river within federal land.
In 2021, a regulatory dispute on the Kuskokwim River during a salmon shortage resulted in the federal government filing a lawsuit against the state. The Alaska Federation of Natives, Association of Village Council Presidents and other Native groups from across the state joined the lawsuit on the side of the federal government.
In 2024, a U.S. District Court judge in Alaska ruled in favor of the federal government, but the state appealed that decision. Last month, three judges from the 9th Circuit again ruled in favor of the federal government. Rather than appeal the issue to the full 9th Circuit, the state is going directly to the Supreme Court.
The state’s filing on Monday was formally known as a “cert petition,” which asks the court to take up the case.
The court takes only about 1% of the cases it receives, though the acceptance rate is higher (about 5%) if the large number of cases involving prisoners representing themselves in court are excluded.
In a written statement announcing the filing, Alaska Gov. Mike Dunleavy and Attorney General designee Stephen Cox said the state believes that federal law gives Alaska control of its navigable waters when it comes to fishing.
“Alaska is asking the Supreme Court to hold fast to the text, because fidelity to the law as written is the foundation of the rule of law,” Cox said in his statement.
Doug Vincent-Lang, commissioner of the Alaska Department of Fish and Game, said he believes the 9th Circuit decision “deepens a fractured system that undermines conservation, creates confusion, and threatens equitable access for all Alaskans. Salmon don’t recognize federal and state boundaries — our management shouldn’t either. We remain committed to sustainable management and will continue fighting for a system that works for every Alaskan. The Court should decide this case and reverse the Ninth Circuit.”
Attorneys representing Alaska Native groups said on Monday that they expected an appeal to the Supreme Court, even if they didn’t know the exact timing.
Nathaniel Amdur-Clark, who has represented the Kuskokwim River Intertribal Fish Commission in the lawsuit to date, said by text message on Monday that his clients “are disappointed, but not surprised, to see the state’s cert petition. It is just a continuation of the state’s push to undermine subsistence protections for Alaska Natives and rural Alaskans.”
The Supreme Court does not have a set timeline for considering the state’s petition, which will be taken up in a closed-door judicial conference after both sides of the argument file written briefs on the issue.
