Years ago, any Alaska governor who even hinted that he might not defend Alaska's newly won state rights against federal inroads would have been tarred and feathered and run out of the state. Today, Gov. Tony Knowles is waffling over whether he will appeal a flawed federal court decision clearing the way for a federal takeover of Alaska's fisheries in state navigable waters. What's worse, the governor previously promised to fight the takeover all the way to the U.S. Supreme Court.
Calling it a compromise, Knowles has now hinted that he may not appeal the Katie John case unless the Alaska Legislature approves a discriminatory constitutional amendment granting a "rural" subsistence priority for the taking of all renewable natural resources statewide, consistent with federal law. The governor's goal is to comply with a flawed federal law and accept the heavy-handed tactics used to ram it down the throats of all Alaskans. Calling such a plan a "compromise" is nothing short of a cruel hoax on the citizens of Alaska.
Appealing the Katie John case is a matter of gubernatorial duty. The feds extended their jurisdiction into state navigable waters even though federal law addresses only federal public "lands." They claimed that reserved water rights gave them that authority and the liberal Ninth Circuit Court of Appeals in San Francisco agreed.
Many constitutional lawyers doubt that the U.S. Supreme Court would uphold this lower court decision given the states rights bent of several high court justices. The Supreme Court has overturned over 90 percent of that circuit court's decisions in recent years. It is also doubtful that the conservative Bush administration is as committed to defending the federal fisheries takeover as was the liberal Clinton bunch. Should the high court hear Alaska's appeal, a victory for Alaska's state rights is likely.
Instead of moving forward with the appeal, Knowles has requested a 60-day extension of the deadline to make his decision. Rather than focusing on the violation of our state rights, Knowles has chosen to use his decision as leverage to coerce the Legislature into approving a "rural" constitutional amend- ment that has nothing to do with the issue at hand. The governor is purposely muddying the political waters by mixing apples and oranges in this case. At the very time the governor should be a statesman, he has again chosen to play the role of political manipulator.
This is upsetting to those of us who believe that the federal fisheries takeover had no basis in federal law and that the state of Alaska is perfectly capable of providing opportunities for traditional subsistence uses without federal oversight. I would like to see a truly Alaskan solution that is consistent with our current constitutional protections.
Some Alaskans have been purposely misled to believe that an appeal of the Katie John case would mean an end to subsistence, but this is untrue. The case has everything to do with protecting sovereign state rights against federal preemption and nothing to do with continued opportunities for subsistence use.
Alaska's 20-year subsistence dilemma can be resolved fairly. However, we must proceed in a logical manner. First, we must know whether the federal takeover of Alaska's fisheries is even legal. Only after the U.S. Supreme Court rules on that point will we know if we must amend our constitution to restore state management of our fisheries and state navigable waters.
Amending our constitution to comply with a discriminatory federal law now would give the federal government and federal courts oversight authority over all state fish and game management on all lands and waters in Alaska, not just federal lands as is the case now. That's a horrible thing for any Alaska governor to be championing.
For once, Gov. Knowles should take the high road and continue Alaska's challenge of the federal fisheries takeover. If we prevail, at the very least Alaska will retain state control of fish and game management on all state and private lands and navigable waters. Gov. Knowles should appeal the Katie John case at once with no political games.
Dave Kelleyhouse of Tok served as director of the state Division of Wildlife Conservation from 1991-94.
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