Subsistence lawsuit pits urban hunters, fishermen against rural counterparts

Posted: Wednesday, July 26, 2006

ANCHORAGE - A panel of federal judges quizzed lawyers Tuesday in a lawsuit that pits hunting and fishing rights of all Alaskans against federal regulations restricting subsistence hunting and fishing to rural residents.

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A group of urban Alaska residents and several non-Alaska hunters and fishermen are challenging federal regulations stemming from the 1971 Alaska National Interest Lands Conservation Act.

That act says that only rural residents can obtain permits for subsistence fishing and hunting on federal lands in Alaska. Sixty percent of Alaska is federal land.

The plaintiffs contend excluding urban hunters and fishermen from federal lands for subsistence is unfair because the Alaska Constitution grants hunting and fishing rights to all Alaskans, regardless of where they live.

Plaintiffs' attorney Robert Erwin told the three-judge panel from the 9th Circuit Court of Appeals that the federal regulations are unconstitutional when applied to his clients.

The judges gave no indication when they would respond to the case. Erwin said it could take six months to a year.



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A lower court in 2005 dismissed the lawsuit challenging the federal regulations.

At Tuesday's session where lawyers for both sides were questioned by the panel, the judges appeared to be unsympathetic to Erwin's argument that the Alaska Constitution gives every citizen equal rights to fish and game.

Judge Richard Tallman asked Erwin wasn't it reasonable for Congress to restrict resources in order to protect them?

"The government says ... some people need it more than other people. What's wrong with that?" Tallman asked.

Erwin countered that certain people were being excluded based only upon where they live.

"What is wrong with that that makes it so evil?" asked Judge Alex Kozinski. "That's what government does. The nature of government is to draw lines between people."

Erwin later said the federal regulations have created an absurd situation in Alaska where neighbors can be classified differently, some rural and some urban.

He said the lawsuit asks this question of the federal government: Why did you create two classes of people when all have the same rights under the Alaska Constitution?

"Why shouldn't everybody be allowed to hunt and fish?" Erwin asked the panel.

Erwin told the panel that if fish and game are scarce, rural Alaskans should get first crack. But, he said, if there are enough to go around, then it should be open to all Alaskans, and after that non-Alaskans.

The case stems from 1998 when one Alaska resident, three nonresidents and a Kodiak guide had their permits pulled for a sheep hunt in the Brooks Range. The group had already flown to Fairbanks for the hunt when they were told that the federal subsistence board had issued an emergency closure. Erwin said later while scarcity is supposed, the reason for the order was never clearly stated.

"My clients have a constitutional right to hunt and fish," Erwin told the judges.

Kozinski responded that there was no federal right to hunt and fish.

Warren Olson, 66, of Anchorage, who formed the Alaska Constitutional Legal Defense Conservation Fund, a group of about 70 people involved in bringing the case, said the federal government is discriminating against urban residents when allocating the state's resources.

"We are dealing with a fundamental right," Olson told The Associated Press.

Olson said this case will be appealed to the U.S. Supreme Court, if necessary.

It's not the first time this type of case has been in the courts.

The issue of just who in Alaska gets first crack at resources was raised in the Katie John case, named for an Athabascan elder. That case established that the federal government has authority on most waters in Alaska to ensure a subsistence priority for rural residents. Former Gov. Tony Knowles refused to appeal the case to the U.S. Supreme Court.

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