The subsistence litigation of Mentasta elder Katie John was back in court recently when a three-judge panel of the 9th circuit held hearings in Anchorage. John’s first case went to the U.S. Supreme court and established that congress intended through title 8 of the Alaska National Interest Lands Conservation Act or ANILCA to protect fish and game, including navigable waters of Alaska. After the rule making in that decision, the state of Alaska asked an en banc panel of the 9th circuit to review the case. The decision in favor of John was reaffirmed.
The state’s latest challenge contends the regulations expanded federal authority to waters beyond what congress intended. Heather Kendall-Miller is the Native American Rights Fund attorney who has argued the case for Katie John. Kendall-Miller says the regulations don’t go far enough.
“The regulations were limited to just the waters within the conservation boundaries, but should have extended to those waters in between,” Kendall-Miller said.
Kendall-Miller argued because the regulations limit the scope of the federal government’s jurisdiction to the conservation unit area boundaries, it does not identify and extend authority over the additional waters required for migrating fish to insure healthy populations that will support subsistence.
“Most villages are not located inside the conservation system units and therefore the federal rule doesn’t protect most of subsistence fishing,” Kendall-Miller said. “And that cannot be what congress intended when it passed title 8 of ANILCA to protect subsistence fishing.”
Kendall-Miller says it could be four months or more before the 9th circuit makes a decision. But she says even after the justices rule in the case, it may not be the end of the litigation.
“Katie john is now 96 years old,” Kendall-Miller said. “She’s been litigating for more than 20 years, all with the goal of trying to protect subsistence fishing which is only 1 percent of the overall fishery.”
“Until we have a management program in place that does so, I think litigation will continue.”
The state has the right to ask for further review if the 9th circuit again decides against them. They can once again ask for an en banc or full panel review of 11 judges. Kendall-Miller says that could be difficult based on the last en banc the state was granted in this ongoing litigation.
“It was announced in its decision that it felt it had been an unnecessary thing to do and the state had gotten two bites at the apple,” Kendall-Miller said. “So given that prior dismay at having taking the case back up again when they viewed it as unnecessary, I think that might be difficult to ask the court again, but one never knows.”
State assistant attorney general Mike Mitchell who represented the Parnell administration in the latest round in this case declined comment.
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