State of Alaska vs Food Security in Rural Alaska

Food security for the Interior villages has been unstable given both the COVID-19 pandemic and the record low salmon runs which has limited the ability for tribal members to store enough food for the winter. Several tribes requested assistance from the State and Federal managers to provide emergency hunts. The State of Alaska denied the requests. The Federal Subsistence Board took various actions and their decisions were eventually taken to court by the Dunleavy administration.

This spring, as the COVID-19 pandemic hit the tribal communities in rural Alaska, tribes sought assistance from the Hunting, Fishing, and Gathering Task Force (Task Force) to ensure the tribes could provide for their communities through their traditional hunting practices. The Task Force used the administrative procedures and processes to request a state emergency hunt.

According to the pleadings that were presented by the attorney general, the Alaska SEOC Operations Section Chief for the Unified Command Mass Care Group (“Mass Care”), stated that there were no food security problems or food supply disruptions resulting from the COVID-19 pandemic and communicated this assumption with the federal employees, without considering input from impacted Tribes.

The Federal Subsistence Board (FSB) was the next avenue for the Tribes to request emergency hunts, this time on federal public lands. The Task Force worked with Tribes to prepare and submit Special Action Requests (SAR) to the FSB.

The Koyukuk tribe submitted a SAR, WSA19-15, for an out of season moose hunt in the Game Management Unit 21D on Federal Public lands near or in the Innoko National Wildlife Refuge, BLM administered land, Special Management Area, and Koyukuk National Wildlife Refuge. Koyukuk cited food security issues during the pandemic and heavy reliance on subsistence ways of life to provide nourishment for their community as the reason for the SAR.

On August 4th, Chief Leo Lolnitz received a letter from the FSB stating the Board voted to defer Koyukuk’s SAR for an emergency hunt. The reason for the deferred vote stated the need for well-defined criteria and guidance to be developed for the determination on how and when food security concerns become a demonstrable and imminent threat to public safety. Federal subsistence regulations authorize the Board, in emergency situations, to open federal public lands for the taking of wildlife for subsistence uses, under certain circumstances, including for public safety reasons.

The FSB took action on other tribal requests, including the Village of Kake’s request to allow a short-term subsistence hunt of moose and deer. FSB authorized a limited hunt of no more than two moose and five deer per month over a 60-day period, “for reasons of public safety related to food security concerns in Kake due to intermittent and unreliable food deliveries caused by the COVID-19 pandemic and limited ferry service.”

On August 10, the State of Alaska sued the FSB citing violations of ANILCA, the Open Meetings Act, and the Administrative Procedures Act. The State’s Complaint argues the FSB: exceeded its authority under ANILCA by “opening” new harvests as they only have authority to “close” or restrict a harvest; violated ANILCA by allowing a hunt for Kake tribal members only and not all federally qualified members; violated ANILCA in its decision to close Unit 13 for two years to non-federally qualified hunters in order to limit competition between hunters; and violated the Open Meetings Act and acted without adequate notice and in violation of the Administrative Procedures Act when field managers took action.

On August 20, 2020, several Alaska Native entities including the Organized Village of Kake, Central Council Tlingit and Haida Indian Tribes of Alaska, Bristol Bay Native Association, Kuskokwim Inter-Tribal Fish Commission, Native Peoples Action, First Alaskans Institute, and Sealaska Corporation took a stance against the State’s actions and in a public news release stated, “The Alaska state government in its current lawsuit against the federal government, is once again prioritizing action to sue its own citizens. Unfortunately, this is a continuation of attempts by the State to target and punish Alaska Native peoples for living our ways of life by usurping the laws of the land in such a way as to try to deny our inherent sovereignty and constitutionally protected rights. This action is stunningly shameful.”

The Native Village of Kake then filed for intervention on August 27, 2020. On September 18, 2020, Judge Gleason denied the State’s request for preliminary injunction regarding Game Management Unit 13 (Ahtna area). The denial of preliminary injunction does not mean the FSB won the matter.  The denial means the court will not take immediate action in the State’s interests before the court’s final decision.  The case will now proceed to the briefing phase.