Governor should appeal Katie John decision or risk impeachment

Alaskans have right to finality

Posted: Thursday, August 16, 2001

Gov. Tony Knowles must appeal the "Katie John" case or Alaska will lose its opportunity to manage Alaska's fisheries under Alaska Law.

In spite of recent rhetoric, the governor knows that the "Katie John" case is only about whether Alaska law will control Alaska's navigable waters and fisheries or whether they will be controlled by federal agencies and the federal courts. In January 2000, Alaska's attorney general said: "Simply put this [Katie John] case is only about the state's authority to manage its own waters."

In September 2000, Knowles stated, "It would be irresponsible to turn over our right and responsibility to manage Alaska's fish and game to the federal government, a right that was at the heart of statehood."

Knowles, in an article titled "Katie John's Appeal is about State Sovereignty," stated that: "No governor of any state would -- or should -- ever voluntarily relinquish this authority back to the federal government. He further stated: "I believe it is my clear responsibility, even in a face of a difficult political battle, to vigorously defend this important aspect of state sovereignty ... to the Supreme Court if necessary."

Nothing has changed. The governor's current alleged quandary as to whether to appeal this case to the U.S. Supreme Court defies logic and is totally contrary to his stated belief that Alaska should control and manage its fisheries and state waters. If the governor unilaterally gives up Alaska's sovereign ability to manage its waters, even if Alaska would amend its constitution, there would be no waters left in which to manage our fisheries. Quite simply, if this case is not appealed to the U.S. Supreme Court, federal agencies will control Alaska's fisheries in all navigable waters.

Claims that Alaska merely needs to amend its constitution to once again be able to manage its resources are fundamentally flawed. The federal register Volume 64, No. 5, p. 1282, Section .14, Relationship to State Provisions and Regulations clearly states that: The Secretary (of the Interior) will not certify the state subsistence management program unless the state enacts and implements laws of general (statewide) applicability which are consistent with and which provide for the definition, preference and participation specified in sections 803, 804, and 805 of ANILCA.

ANILCA provides that federal oversight authority will continue (regardless of any changes to Alaska's Constitution). The only change that would occur is that Alaska could manage using federal law, federal regulations and federal bureaucratic and federal court oversight. Yes, even if Alaska changes its constitution (by abandoning our equal protection and equal rights) to be given some semblance of regulatory management (under federal law -- ANILCA), in the future, if Katie John or any other individual perceives that their subsistence allocation is not enough, they could instantly file suit in federal court. The state of Alaska would then have to defend in federal court bureaucracies and federal law.

Put simply, without appealing this case to the U.S. Supreme Court, Knowles will forgo this critically important opportunity to achieve finality and the opportunity to return Alaska's fisheries to Alaska management under Alaska law. If the U.S. Supreme Court rules in Alaska's favor, then state management under Alaska Law would return on all state lands and waters. If an adverse ruling occurs, then Alaska is no worse off but could and should file quiet title actions on all state-owned navigable waters over which the federal agencies have assumed control. (Alaska has already filed such actions regarding Glacier Bay and Tongass waters.)

Fourteen other western states filed Amicus (Friend of the Court) briefs defending Alaska's sovereign ability to manage its own resources. If Alaska fails to take this appeal to the U.S. Supreme Court, then our sister states also lose this critical opportunity to stop federal incursion. The governor should consider the Alaska businesses and fishermen that are already being run off Alaska's rivers.

The U.S. Forest Service has instituted regulations which prevent the Alaska guides in Southeast from even transporting vehicles or empty boats or persons on Alaska's rivers without a federal license and/or having a difficult to secure federal permit. The Federal Subsistence Board recently closed commercial and sport fishing in the Yukon River drainage.

Some Alaskans believe that Gov. Knowles should have been impeached when he dismissed, for political reasons, the appeal of the Alaska v. Babbitt case in which he voluntarily relinquished Alaska's appeal of the issue of whether the federal government can manage wildlife on federal lands in Alaska. Now, if he voluntarily drops the Katie John suit (for political, not legal, reasons), where the agencies of the federal government have asserted authority over nearly all of Alaska's navigable waters on state lands, then the number of Alaskans seeking his impeachment will grow rapidly.

Giving up our state's ability to manage our fisheries on Alaska lands and waters is not in the best interest of any Alaskans other than the small special interest groups the governor supports.

Alaska's subsistence statute already provides a priority for subsistence uses statewide and, in times of shortage, provides preferences for subsistence users.

Claims that rural Alaskans are being denied access are hollow. No one has ever explained what access is being denied or how it would improve under federal management. The fact is that under federal subsistence regulations the majority of Alaskans are categorically denied any subsistence opportunity. Consequently, all of Katie John's relatives who may live in Fairbanks or Anchorage and have historically returned to their fish camps each summer are denied access under federal regulations but may qualify for subsistence priority under Alaska's subsistence statute (which provides equal protection for all Alaskans).

It is the governor's legal and sworn duty to defend Alaska's sovereignty, and the current attempt to balance or blackmail the Legislature into special session is pure smokescreen. Though the Legislature previously filed an action challenging the federal regulations, the federal courts have ruled that only the governor of Alaska has the authority to represent and defend Alaska's sovereign rights.

A special session of the Legislature could do nothing to restore Alaska Law. The Legislature has been advised that previous constitutional amendments advocated by the governor could not be brought as a legislative initiative.

In 1999, the Alaska Supreme Court, in Bess v. Ulner, ruled that proposed amendments would have affected Alaskans' equal protection and equal rights, modifying over 10 sections of our constitution and, thus, would not be permitted by initiative.

The Alaska Supreme Court, in Totemoff v. State, stated definitively that federal agencies are without authority to regulate hunting and fishing in Alaska's navigable waters. There is no reason to believe that Alaskans would vote to give up their equal protection and equal rights under Alaska's Constitution. In fact, Alaskans voted overwhelmingly in 1982 for the "Tundra Rebellion Initiative," which sought to maximize Alaska state control over all lands in Alaska.

There is no legal reason why the governor should compromise Alaskans' equal protection, equal rights or our state's sovereignty. It is the governor alone (and not the Legislature) who has the responsibility and must demonstrate the courage to achieve finality in the U.S. Supreme Court. Otherwise the governor will be solely responsible for giving up the farm and for Alaskans becoming sharecroppers in the soon to be federal fiefdom formerly known as Alaska.

Lynn E. Levengood, Esq.

Executive Board Member

Alaska Wildlife Conservation Association

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