Federal Agency To Sue State Over Kuskokwim River Salmon Management

In April, the state shut down king salmon fishing on the Kuskokwim River, citing a low projected return similar to 2021’s production. But other long-standing management policies from the Alaska Department of Fish and Game and the state of Alaska prompted a federal lawsuit that was filed on Tuesday. Here’s more from Alaska Public Media:

Gov. Mike Dunleavy’s office referred questions to the state Department of Law. The department’s spokesperson, Assistant Attorney General Grace Lee, said the state’s management is based on sound science and input from local stakeholders.

“This ensures that there are adequate subsistence opportunities for Alaskans while adhering to the sustainability principle enshrined in the Alaska Constitution,” she said in an email.

The lawsuit has its roots in the 1990s fights in Alaska about subsistence fishing and hunting on federal lands. Federal law requires that rural residents’ subsistence needs come first in times of scarcity. State law doesn’t allow a rural preference, the state Supreme Court decided in 1989.

Here are some details from the lawsuit filing letter. Read the complete text for the lawsuit here.

1, The United States brings this action against the State of Alaska to protect subsistence use of the Kuskokwim River Chinook and chum salmon populations by local rural residents who depend on these salmon for their physical, economic, traditional, and cultural existence. The United States seeks a declaration under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, that the State’s actions in contravention of a rural Alaskan subsistence priority are preempted by federal law and are therefore unlawful.

2. Title VIII of the Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, 94 Stat. 2371, 2371-2551 (1980) (codified at 16 U.S.C. §§ 3111–3126) (“ANILCA”), requires the Secretaries of the Interior and Agriculture to accord priority for the nonwasteful subsistence uses by rural Alaskans of fish and wildlife on public lands in Alaska. 16 U.S.C. § 3114.

3. The Federal Subsistence Board (“FSB”) accomplishes this mandate, under a delegation from the Secretaries of the Interior and Agriculture, through the adoption of regulations that implement the rural priority in a manner consistent with the preservation of healthy populations of fish and wildlife within national wildlife refuges and other conservation system units in Alaska. 16 U.S.C. § 3124-5; 50 C.F.R. § 100.18. This includes the FSB’s authority to: (a) adopt short-term emergency special actions to restrict or close public lands to the taking of fish and wildlife for non-subsistence uses when necessary to ensure the conservation of healthy populations of fish and wildlife or to continue subsistence uses, 16 U.S.C. § 3125(3); 50 C.F.R. § 100.19; and (b) to re- delegate its authority to agency field officials to set harvest limits, define harvest areas, and open or close harvest seasons within frameworks established by the FSB, 50 C.F.R. § 100.10(d)(6).

4. In 2021 and 2022, 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 (the “Refuge”) to non-subsistence uses, while allowing limited subsistence uses by local rural residents under narrowly prescribed terms and means of harvest. The FSB and authorized agency officials determined these actions to be necessary to conserve the fish population for continued subsistence uses of the Chinook salmon upon which rural residents of the area depend.