An emergency subsistence hunt held in Kake at the start of the COVID pandemic has been found to be lawful, over the objections of the state.
The ruling by the United States District Court of Alaska earlier this month further strengthens the federal government’s position in subsistence management in Alaska.
The hunt was authorized by the Federal Subsistence Board, and managed by the Forest Service, Petersburg Ranger District, after a request from the tribal government of Kake.
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.
Hunters designated by OVK were allowed to take two bull moose, and five male Sitka blacktailed deer per month, outside of the state-regulated seasons for these animals. Meat from the harvest was distributed to 135 households in Kake.
The hunt prompted a swift legal response from the state, essentially a new challenge to a three-decade old conflict in Alaska: the discrepancy between the 1980 Alaska National Interest Lands Conservation Act,or ANILCA, which – in the simplest terms – grants a rural subsistence priority, and the Alaska Constitution, which does not.
The November 3 ruling by US District Court Judge Sharon Gleason reaffirmed that, when push comes to shove, federal laws supersede state laws in matters of subsistence.
In its initial lawsuit against the Kake hunt, the state argued that nowhere in ANILCA is there language authorizing emergency subsistence hunts, and that the Federal Subsistence Board lacked the authority to create them. The state took the issue as far as the 9th Circuit Court of Appeals this past March, and even claimed victory when the justices rejected the United States’ claim that the question was moot, and remanded the matter to the Alaska District Court for review.
US District Court Judge Sharon Gleason, however, concluded that the ANILCA gave the US Secretary of Interior broad discretionary power to authorize emergency hunts, even though they’re not strictly spelled out. She wrote, “the Court finds that the Secretary’s regulation (at 50 C.F.R. § 100.19) which authorizes the Federal Subsistence Board to ‘open . . . public lands for the taking of fish and wildlife’ for ‘public safety reasons,’ is valid as applied to the emergency hunt that the board authorized for Kake.” And Judge Gleason lets the state know they should have seen it coming. Citing one of the first major subsistence cases following ANILCA, “Katie John,” Gleason wrote, “Congress was clear in ANILCA’s text that enforcement of the subsistence priority would entail altering the traditional balance of power between the State of Alaska and the federal government.”
