Alaska Subsistence A National Park Service Management History

B. The Katie John Decision

Well before the government published its 1992 final rule on Alaska subsistence management, both federal officials and a broad spectrum of other interested individuals recognized that actions were taking place in the federal courts that had the potential to significantly broaden the federal government's role in the management of the state's subsistence fisheries. Court actions had begun during the mid-1980s, and by the time the final rule was published, a decisive case was ready to be ruled upon by a district court judge. [4]

The case, Katie John vs. the United States of America (known informally as the "Katie John case,"), had its origin in a longstanding quarrel over fishing rights. Batzulnetas, a longtime Ahtna village, was located along the banks of the swift, silty Copper River at the confluence of Tanada Creek, a clearwater stream. The site was thus "the perfect location for a fish camp," and for hundreds of years, area Natives harvested the sockeye salmon that ascended the drainage each summer. Batzulnetas remained an active seasonal village until the middle of the twentieth century; its last chief was Sanford Charlie, who died during the 1940s. After World War II, the village's residents resettled at Mentasta Lake and other year-round settlements accessible to the newly-developed highway system. But Batzulnetas, located not far south of Nabesna Road, continued to be widely used as a seasonal fish camp through the early 1960s.

In 1964, however, the Ahtnas' seasonal lifestyle was dealt a severe blow when the Alaska Board of Fisheries and Game shut down subsistence fishing (that is, fishing with nets and fishwheels) at Batzulnetas and other upriver fish camps. Fisheries managers did so because the Copper River, by this time, was supporting a wide array of commercial, sport, and personal-use fisheries, and state biologists posited (correctly or not) that if the Ahtnas caught too many fish in certain upriver "terminal streams," it would have disastrous effects, both on the various downstream users and on the viability of certain salmon stocks. After that decision, the village site was used less often, and before long, Batzulnetas was effectively abandoned. [5] And not long after that, the village and other area lands came under scrutiny by conservationists and Interior Department officials. In December 1978, President Carter included the former village site in Wrangell-St. Elias National Monument, to be administered by the National Park Service, and two years later, the old village was included as part of the 8.3 million acre Wrangell-St. Elias National Park. [6]

Although local Natives did not legally protest the state's 1964 fishing closure, many remained interested in the old village site. During the early 1970s a newly-established regional Native corporation, Ahtna, Inc., filed a 1,600-acre claim to the lands surrounding the village. Three local Native residents—Katie John, Doris Charles, and Gene B. Henry—filed claims to smaller parcels in and around old Batzulnetas. [7] None made an immediate attempt to resettle in the area, but by the early 1980s, Katie John and Doris Charles—two Ahtna elders residing in Mentasta Lake—"began talking about going back" to the former village site. The women may then have spoken to NPS officials about the situation. [8] In 1984, John and Charles traveled to Fairbanks and presented their case to the Alaska Board of Fisheries. The Board, however, voted 5 to 2 against their proposal; it suggested instead that they fish at various downstream sites—Slana, Chistochina, or Chitina—where subsistence harvesting was allowed. [9]

Katie John near her fishwheel on the Copper River, 1994. Erik Hill, ADN

The elders, however, persisted. (As John later noted, "We're Indian people and I don't like park rangers or game wardens coming in here telling us what to do like they own everything. That makes me mad. ... I don't want to be on somebody else's land. I like to do my fishing on my own land right there.") Hoping to gain fishing rights for herself, and for her grandchildren as well, she began talks with the Boulder, Colorado-based Native American Rights Fund (NARF), which was opening an office in Anchorage. Attorneys Robert T. Anderson and Lawrence Aschenbrenner, representing NARF, agreed in 1985 to file a lawsuit (Katie John vs. State of Alaska) on John and Charles's behalf. That suit, filed against the State of Alaska in U.S. District Court, requested that the residents of Dot Lake and Mentasta (i.e., where former Batzulnetas residents were now living) had the right to fish at the old village site. The fish board, in response to the suit, relented in 1987 and allowed locals, after obtaining a permit, to harvest a maximum of 1,000 sockeye salmon. The following year, the board further relaxed its rules and eliminated the salmon quota. But the women pressed on, still feeling that their rights were being curtailed. John and Charles, who by now were joined by the Mentasta village council, launched another District Court suit to allow continuous fishing and without the need for a permit. The plaintiffs were victorious in court, and by that fall they had won the right to a subsistence fishery that was continuously open from June 23 through October 1. But before the order could take effect, the December 1989 McDowell decision struck down the rural preference that Alaska subsistence users had previously enjoyed. The net result of the year's two court decisions was the creation of a subsistence fishery that included Batzulnetas in which all Alaskans could take part, regardless of their rural or urban residency. [10]

By July 1990, federal assumption of subsistence hunting was an accomplished fact, at least for the time being. Rural residents, as a result, once again had a statutory advantage in the harvest of game animals. But because fish populations in the state's navigable waters were still managed by state authorities, urban populations still had the same opportunities to harvest fish for subsistence purposes as their rural counterparts. Mentasta area residents felt that that system was unfair, so in September 1990, John and others petitioned the newly-established Federal Subsistence Board for reconsideration of the temporary regulations that applied to subsistence fishing at Batzulnetas. The Board, however, denied their request, based in large part on the fact that navigable waters did not fall within the definition of "public lands." [11]

Then, in early December 1990, the plaintiffs sought a judicial remedy. Three parties—Katie John, Doris Charles, and the Mentasta Village Council—challenged the federal government's recent decision that placed Alaska's navigable waters under state control. (This decision, as noted above, had been announced in the June 29, 1990 Federal Register.) The plaintiffs, backed by NARF, filed Katie John vs. United States of America in hopes of broadening the definition of "public lands" as noted in Section 102 of ANILCA to include navigable waters; and on a more pragmatic note, the plaintiffs also asked for a federal subsistence fishery in the Batzulnetas area. Named as plaintiffs in the suit were the federal government along with the Interior and Agriculture Department secretaries. [12]

The lawsuit was soon placed before U.S. District Court Judge H. Russel Holland. Fewer than sixty days after it was filed, federal attorneys analyzed the case and concluded that an additional defendant needed to be the State of Alaska, which managed the state's subsistence fisheries. [13] Soon afterward, state lawyers agreed to join the case; on the plaintiff's side, the Alaska Federation of Natives signed on in a supporting role. (After this point, state lawyers were the primary defendants, while federal solicitors took an increasingly neutral position.) The case was argued before Judge Holland in December 1991, but no decision was immediately forthcoming. Over the next two years the case ballooned in importance as a number of similar, ancillary suits—regarding subsistence fisheries management in Copper Center, Quinhagak, Stevens Village, and elsewhere—were consolidated into the Katie John case. [14] By 1993 the case had been consolidated with State of Alaska vs. Babbitt, in which Holland was also the deciding judge. [15]

A new wrinkle was injected into the fray in July 1993 when the Native American Rights Fund submitted a petition to the Secretaries of Agriculture and the Interior. That petition requested that the two secretaries include navigable waters within the definition of "public lands" as used in implementing Title VIII, and they were intended to validate the regulations pertaining to fish and shellfish that the federal government, on June 1, 1993, had issued for the 1993-1994 season. The secretaries made no immediate response to this petition; instead, they hoped that Judge Holland's court decision would clear up the murky waters surrounding this issue. [16]

In the fall of 1993, Judge Holland made the first of a series of preliminary findings in the Katie John case. In mid-November, according to a contemporary news report, he was "seriously considering arguments by state lawyers that federal subsistence management in the state was never intended when Congress passed [ANILCA]." More specifically, Holland was "tentatively of the opinion" that ANILCA provided little direction regarding whether the federal government had the power to take any subsistence regulation away from the state. State lawyers were "tentatively very happy" with the finding; they envisioned, at the very least, that subsistence fisheries rulings would continue to be enforced by ADF&G, and some people felt that Holland's remarks had presaged the disbanding of the federal government's entire, three-year-old subsistence management program. [17] But a second preliminary ruling, made two months later, was less favorable to the state's interests. Holland tentatively concluded that public lands as defined in ANILCA included both land and water. "Much of the best fishing is in the large navigable waterways where one has access to the most fish," he wrote. "By their regulations which exclude navigable waters from the jurisdiction of the Federal Subsistence Board, the Secretary abandoned to [the] state control of the largest and most productive waters used by rural Alaskans who have a subsistence lifestyle." The ruling, if finalized, promised to impose federal subsistence law on all of the state's navigable waters and make only rural Alaskans eligible for subsistence fishing rights under the Federal regulations. [18]

Given those preliminary rulings, Holland gave both sides in the case one last opportunity to present arguments. By this time the federal government, though a nominal defendant in the case, had largely stayed away from the fray. But when lawyers met on March 18, Justice Department lawyers—prodded by a their superiors in the Clinton administration—argued that federal law should apply on at least some of the state's navigable waters: specifically, on waters within national parks, wildlife refuges, and other designated conservation units. [19]

In his final ruling, however, Holland rejected the federal government's middle-of-the-road offerings and ruled strongly in favor of Alaska's Native groups. In a 42-page ruling issued on March 30 in Anchorage, Holland concluded (according to a local newspaper account) that "the needs of rural Alaskans aren't being met by current policies and that the federal government has the legal power and obligation to take over management of subsistence fisheries on all navigable waters." Using language similar to that initially used in his January 1994 preliminary ruling, he wrote that

By limiting the scope of Title VIII to non-navigable waterways, the Secretary has, 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. Much subsistence fishing and much of the best fishing is in the large navigable waterways where one has access to the most fish....

[Therefore], the court concludes that the Secretary, not the State of Alaska, is entitled to manage fish and wildlife on public lands in Alaska for purposes of Title VIII of ANILCA. ... The court further concludes that the Secretary's interpretation of Section 102 is unreasonable. For purposes of Title VIII, "public lands" includes all navigable waterways in Alaska. [20]

In his decision, Holland declined to use the "reserved water rights" doctrine as a means of determining the geographic scope of Title VIII. (This latter doctrine would have provided an additional basis for federal jurisdiction over a navigable waterways in so-called "federal enclaves.") He did, however, invoke a more broadly-defined "navigational servitude" doctrine, which meant that a federal preference should apply to all navigable waters, including most rivers, lakes, and coastal waters inside the state's three-mile jurisdiction. (He noted that "even if navigational servitude is viewed as a power to regulate rather than as a property interest, Congress exercised that power to protect subsistence uses by rural Alaskans.") [21]

Native groups, not surprisingly, were elated by the decision. Hickel administration officials, by contrast, pronounced the judge's conclusion "incorrect." They vowed to appeal the decision to the Ninth District Appeals Court; as a stopgap measure, they intended to ask for a stay in the ruling until after the appeal had been decided. [22]

Soon after he made his decision, Holland agreed to the requested stay, and the Ninth Circuit Court of Appeals agreed to hear the case. [23] Meanwhile, federal bureaucrats acted to continue the validity of the fish and shellfish regulations. (Those regulations, as noted above, had been issued on June 1, 1993; they were valid for the 1993-1994 season, but they were set to expire on June 30, 1994.) Worried that "a lapse in regulatory control after July 1 could seriously affect the continued viability of fish and shellfish populations [and] adversely impact future subsistence populations for rural Alaskans," the Office of Subsistence Management issued an interim rule on June 27, 1994 that "effectively extends the existing regulations until December 31, 1995, ... or until the court [of appeals] directs the preparation of regulations implementing its order." The current fish and shellfish regulations, therefore, remained on hold pending the Court of Appeals' decision. [24]

That fall, the appeals court placed the state's appeal of Judge Holland's on a "fast track," and on February 8, 1995, three appeals-court judges heard oral arguments on the case in Seattle. By this time, state attorneys—who were backed in their effort by their counterparts in six other western states—had conceded that some of their previous opinions could not withstand the appeals process. State attorneys, therefore, argued that the subsistence priority granted by the federal government applied only to navigable waters on federal land, while attorneys representing Native groups, citing ANILCA language, argued that all of the state's navigable waters should be included under the subsistence preference. [25]

In August 1995, the Alaska Supreme Court strongly upheld states' rights in the Totemoff case. Justices on the court that year included (left to right) Dana Fabe, Jay A. Rabinowitz, Robert L. Eastaugh, Allen T. Compton (chief), and Warren W. Matthews. Alaska Court System

On Thursday, April 20, Senior Circuit Judge Eugene A. Wright of the Ninth U.S. Court of Appeals issued the long-anticipated ruling in the Katie John case. The 2-1 ruling, expressed in a nine-page opinion, supported some of Judge Holland's conclusions but rejected others. In a major victory for Native groups, the Ninth Circuit stated that Congress clearly intended the subsistence preference to apply to fisheries on navigable waters; federal intervention, the court noted, was needed because state subsistence policies had failed to protect villagers. As Judge Wright noted,

ANILCA's language and legislative history indicate clearly that Congress spoke to the precise question of whether some navigable waters may be public lands. They clearly indicate that subsistence uses include subsistence fishing. ... And subsistence fishing has traditionally taken place in navigable waters. Thus, we have no doubt that Congress intended that public lands include at least some navigable waters. [26]

In making that decision, the Circuit Court reversed two key decisions that the District Court had made a year earlier, namely about the reserved water rights doctrine and the navigational servitude concept. Specifically, the appeals court decision noted that "the definition of public lands includes those navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine..." These waters, at a minimum, were those that ran through national parks, preserves, forests, and wildlife refuges, but they might include other federal lands as well. But the appeals court rejected the notion that the federal government had broader jurisdiction, because it noted that "the navigational servitude is not 'public land' within the meaning of ANILCA because the United States does not hold title to it." The court, in fact, admitted that "ANILCA's language and legislative history do not give us the clear direction necessary to find that Congress spoke to the precise question of which navigable waters are public lands," so it concluded by imploring, "let us hope that the federal agencies will determine promptly which navigable waters are public lands subject to federal subsistence management." [27] Given that task, Interior Department agency heads met just a day after the ruling to determine which waterways might be included. State lawyers, disappointed with the ruling, responded by asking for a stay of Wright's ruling. In addition, they promised that they would appeal the case yet again, to the U.S. Supreme Court if necessary. [28]