The OVK – or Organized Village of Kake – petitioned the Federal Subsistence Board in 2020 shortly after nationwide lockdowns and supply chain disruptions threatened the food supply to the 500 residents of the community, located on Kupreanof Island, about 50 miles east of Sitka. (Melati Kaye photo)
The 3-judge panel handed down its ruling on June 2, in a case involving the Southeast community of Kake, which had asked the Federal Subsistence Board for an emergency hunt during the height of the pandemic in 2020. The board authorized the hunt over the objections of the state, which promptly filed suit.
James Brooks has been covering the case for the Alaska Beacon. He spoke recently with KCAW’s Robert Woolsey about what the decision means for subsistence in Alaska.
Note: In Kake’s emergency hunt in 2020, five deer and two moose were harvested out-of-season to mitigate a potential food shortage caused by the COVID-19 pandemic.
Brooks: “One of the best places to start might be to say that this is one of a number of lawsuits/conflicts between the state and the federal government over who should control subsistence hunting and fishing and how it should be run. In this case, you have to go back to 2020, during the COVID 19 pandemic, and everybody was extremely worried about how we would get food here in the Southeast Alaska, and in villages like Kake, that worry was particularly large. So people appealed to the Federal Subsistence Board (this is the board that oversees and regulates subsistence hunting on federal land in the state of Alaska) and they said, ‘Can we have an emergency hunt so we can make sure we have food during the pandemic?’ And the board considered this proposal and said, ‘Yes, and to make it speedier, we’ll have the Tribe run the hunt.’ The State of Alaska had an issue with this and sued. It said, ‘Hey, opening a hunt is not within the powers of the Federal Subsistence Board.’ And so that was their argument that’s gone on for five years now, back and forth between the US District Court in Anchorage and the Ninth Circuit Court of Appeals in California, and all along the west coast. And now, just recently, a three judge panel of the Ninth Circuit confirmed that the Federal Subsistence Board acted legally when it opened that emergency hunt back during the first weeks of the COVID-19 pandemic.”
KCAW: “And that is a very significant ruling on the part of the US Ninth Circuit. Is Alaska going to pursue this further? Because, as you say, subsistence has been a tug of war between the state and the federal government since ANILCA.”
Brooks: “Right. And you have to understand that ANILCA, the 1980 Alaska National Interest Lands Conservation Act (it’s a mouthful, that’s why we call it ANILCA) says rural Alaskans should have a preference for subsistence hunting and fishing. But the problem is that the Alaska constitution forbids giving some residents preferential treatment in hunting and fishing. So as a result, the federal government now oversees and controls subsistence hunting and fishing on federal land, and that conflicts with the state’s interest, which is sharing hunting and fishing equally across all residents. And so that conflict has been continuing for 45 years now.”
KCAW: “Getting back to my question, James: Is the state going to be content with this ruling? Because it’s a fairly significant blow in this ongoing struggle between the state and the federal government over subsistence management.”
Brooks: “The state hasn’t said whether it’ll appeal this or not. This ruling was from three judges on the Ninth Circuit, and the state could ask the entire Ninth Circuit – all of the judges on that court – to hear the case and then rule, or it could appeal to the US Supreme Court. And the thought might be that that court (the Supreme Court), which is a lot more conservative than the Ninth Circuit, might be more favorable to Alaska’s interests.”
