The Ninth U.S. Circuit Court of Appeals has granted the state's request that it take another look at its decision on a key subsistence lawsuit.
On Friday, the court said it would appoint 11 judges to review a 1995 ruling by a smaller, three-judge court of appeals panel. The 1995 decision expanded federal authority to protect rural subsistence rights to navigable waters. That lead to the Oct. 1 federal takeover of subsistence fisheries management for most of the state's waterways.
After the 1995 decision on what's called the Katie John case, the suit was sent back down to U.S. District Court in Anchorage. In January, that court made a final determination in the case, which the state appealed in March.
Alaska Attorney General Bruce Botelho said today the state's appeal was an effort to protect Alaska's right as a state, rather than an effort to undermine subsistence protections granted rural residents by the Alaska National Interest Lands Conservation Act of 1980.
``We have no conflict with the federal government that subsistence rights should be protected,'' Botelho said.
The administration of Gov. Tony Knowles has pushed for an amendment to Alaska's constitution that would allow for a subsistence preference based on where people live. Such an amendment would bring the state's constitution in line with ANILCA.
The reason the state is appealing, he said, is to protect traditional state authority. Typically, a state gets to manage the fish and game resources within its boundaries. The Katie John decision extended federal management into waters the state should control, he said.
``One cannot demonstrate a clear, unequivocal congressional intent to deprive the state of its traditional powers,'' Botelho said.
Heather Kendall-Miller, the Native American Rights Fund's lead attorney on the case, said the new review may turn out to be a boon. The initial appeals court ruling, she said, could be strengthened.
``It means we're going to have to go a second round,'' she said today. ``Our arguments are so strong that even an 11-judge panel will agree with them and we'll end up with a stronger opinion.''
She said the main argument in her favor is that ANILCA clearly included federally reserved waters, and that the federal government is obliged under the law to manage subsistence fisheries in those waters.
Kendall-Miller said a schedule hasn't been sent out by the appeals court yet, but she suspects oral arguments on the case won't be heard until this winter.
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