Alaska cannot override federal subsistence fishing regulations, judge rules

(CN) — A federal judge sided with the U.S. government on Friday night to bar the state of Alaska from allowing subsistence gillnet fishing by all Alaskans on the Kuskokwim River.

The order from U.S. District Sharon Gleason marks a win for the federal government and the Kuskokwim River Inter-Tribal Fish Commission after they sued Alaska in May 2022 for issuing conflicting orders regulating subsistence gillnet fishing on the Kuskokwim River, which runs for 700 miles in southwest Alaska.

The river contains several species of salmon, including Chinook salmon and chum salmon, and most residents of local villages along the river and its tributaries are federally approved subsistence users — whether they are native or non-native to the area — that are highly dependent on the fish.

In 2021 and 2022, the Federal Subsistence Board and agency field officials issued emergency orders to close a 180-mile stretch of the Kuskokwim River within the Yukon Delta National Wildlife Refuge for all gillnet fishing of salmon.

The orders — exercised under the authority of Title VIII of the Alaska National Interest Lands Conservation Act — intended to conserve the river’s salmon population for rural subsistence purposes and provided narrow windows for federally qualified subsistence users to use gillnets within the refuge.

After the Federal Subsistence Board issued its closure notices in 2021 and 2022, the Alaska Department of Fish and Game issued conflicting emergency orders that allowed subsistence gillnet fishing along the river for all Alaskans — not just federally qualified subsistence users — on the same dates that the federal government reserved for qualified fishing and on dates that the federal government closed to all gillnet fishing.

According to the department, its conflicting 2022 orders provided an opportunity for individuals displaced to urban areas to still participate in their traditional and cultural subsistence practices tied to the Kuskokwim River.

However, it failed to convince Gleason that it could mount a defense of a preliminary injunction that year, and, on Friday night, the judge issued a final order reflecting the same conclusion.

“As the state’s arguments against federal preemption of ADF&G’s orders pursuant to Sturgeon and the Appointments Clause fail, the state is not entitled to summary judgment,” Gleason wrote in her order. “And because the state has failed to create a genuine dispute of material fact as to federal preemption, the court grants summary judgment to the United States. The United States can impose a rural subsistence priority on the Kuskokwim River under ANILCA.”

The department’s conflicting orders, Gleason explained, irreparably harmed the federal government’s ability to enforce rural subsistence priority and its federally qualified subsistence users.

“And [the plaintiffs] have shown that the balance of the equities and the public interest support a permanent injunction, as allowing a state to enforce a regulation that is preempted by federal law in violation of the Supremacy Clause is neither equitable nor in the public interest,” Gleason added.

Moving forward, the Alaska Department of Fish and Game is prohibited from reinstating its orders from 2021 and 2022. It’s also enjoined from taking similar actions that interfere with federal orders under Title VIII of the Alaska National Interest Lands Conservation Act and applicable regulations on the Kuskokwim River in the wildlife refuge.

Representatives for the department and the Kuskokwim River Inter-Tribal Fish Commission did not immediately respond to a request for comment.

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