ANCHORAGE, Alaska — The state is asking the U.S. Supreme Court to take up its fight with the federal government over salmon management on the Kuskokwim River in Southwest Alaska.

Alaska Attorney General Stephen Cox on Monday petitioned the court to hear the case.

The state asserts that the issue is a matter of state control over “public lands” in navigable rivers as they flow through federal conservation areas, according to a statement from the Alaska Department of Law on Monday.

The lawsuit pits the state against Alaska Native groups that have joined the side of the federal government in the case, including the Alaska Federation of Natives and the Kuskokwim River Inter-tribal Fish Commission that represents more than two dozen tribes along the watershed.

The Native groups argue that the state is trying to strike at the heart of the rural subsistence priority and the Katie John court decisions. Those decisions upheld rural priority on waters associated with federal lands, including in 2014, when the Supreme Court at the time refused the state’s request to hear an appeal from the 9th Circuit Court of Appeals. The priority puts rural residents, who are usually Alaska Native, first in line for fish and wildlife resources on federal lands and waters in the state.

The state is specifically challenging the priority along a 180-mile section of the Kuskokwim River that passes through the Yukon Delta National Wildlife Refuge.

The state argues that a Supreme Court decision in 2019 known as Sturgeon II established that navigable waters within federal conservation units like the refuge are not “public lands” under the 1980 Alaska National Interest Lands Conservation Act. They are therefore not subject to federal control, the state argues.

But last month, a three-judge panel of the 9th Circuit Court of Appeals rejected that argument.

The panel found that the term “public lands” can have two different meanings within different titles in the act. The panel said the act broadly interpreted the term when it comes to the rural subsistence priority, and that view was upheld in the Katie John decisions.

The state also lost before U.S. District Court Judge Sharon Gleason last year.

Cox said in a statement Monday that Congress gave the term “public lands” a clear meaning in the lands conservation act.

“Courts don’t get to rewrite statutes by giving words different meanings in different sections,” Cox said. “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.”

Nathaniel Amdur-Clark, an attorney for the Kuskokwim River Inter-tribal Fish Commission, said the group is “disappointed but not surprised” by the state’s latest action.

“It’s just a continuation of the state push to undermine subsistence protection for Alaska Natives and rural Alaskans, and it continues the waste of Alaska’s public resources,” he said.

The petition is part of the state’s broader attempt to erode subsistence protections established by Congress, he said.

“Rather than getting the statute amended, if that’s what they wanted, they just are basically trying to act like the statute doesn’t exist,” he said.

Fundamentally at odds

The federal government brought the case in 2022.

The salmon and other fish in the Kuskokwim River have historically supplied residents from the area with a vital source of food for the winter.

But, facing a shortage of salmon, federal managers had issued emergency orders for two straight years to limit gillnet fishing to only rural subsistence users, in line with federal law.

In conflict, the state had issued its own orders to allow fishing for all subsistence users from around the state, not just rural ones, setting up the lawsuit.

Alaska and the federal government have locked horns over the rural subsistence priority for decades. In 1989, the Alaska Supreme Court found that equal-access clauses of the Alaska Constitution prohibit a hunting and fishing preference for rural residents.

The two sides operate their own management regimes, sometimes for the same fish and wildlife populations, as they migrate over state and federal lands, leading to what’s called dual management.

The state argues in it petition that the conflict in the Kuskokwim exemplifies the problems created by piecemeal management. Just one-fourth of the 700-mile river runs through the refuge, so the federal government has focused on providing the subsistence priority on only a portion of it, the state said.

The “regulatory narrowness” has led to overfishing within federal areas and deprived communities upstream of fishing opportunities, the state argues.

“Salmon don’t recognize federal and state boundaries — our management shouldn’t either," Doug Vincent-Lang, commissioner of Alaska Fish and Game, said in the statement. “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.”

Amdur-Clark countered that the state has mismanaged fish and wildlife resources, as indicated by the Alaska Native groups that have joined the lawsuit to protect the federal subsistence priority.

“There are no subsistence groups in this lawsuit that are supporting the state,” he said.

He said Congress wanted to protect subsistence fishing and hunting in Alaska in a way the state can’t.

He asserted that the array of Alaska Native groups that have joined the fight, including entities from the Ahtna region in Southcentral Alaska, shows the issue is truly about subsistence, while the implications are statewide.

“The state couches it in terms of being about state’s rights, but it’s really about the state wanting to put in a regime that is more more friendly to commercial and sport fishing than subsistence fishing,” he said.

The state says in a “frequently asked questions” webpage that if the Katie John decision is struck down, it would be bound by the state constitution to manage subsistence for all Alaskans and give it the highest management priority above other users.

Amdur-Clark said the state could could have appealed the case to the full 9th Circuit Court of Appeals, before trying the U.S. Supreme Court.

It’s difficult to know if the court will take up the case, he said.

“The 9th Circuit’s decision was clear, very straightforward, and correct on the law,” he said. “There’s a lot of reasons for the Supreme Court not to bother with this.”

The state’s petition, seeking to bypass lower courts, is not a first.

The Dunleavy administration in 2023 unsuccessfully asked the Supreme Court to take up its case to overturn a decision by the U.S. Environmental Protection Agency to halt the proposed Pebble mine.

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