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Lawmakers lose Katie John fight

High court rejects GOP legislators' bid to intervene

Posted: Tuesday, November 27, 2001

The U.S. Supreme Court has rejected a bid by Republican lawmakers to intervene in the Katie John subsistence lawsuit, dashing the GOP's hopes of ever winning the case.

The decision dealt a fatal blow to the Legislature's challenge of the lawsuit, which paved the way for a federal takeover of subsistence fisheries on federal land.

"We've exhausted every possible avenue in order to get the case resolved on the merits," said attorney Ted Popely, who represents the Republican majority in the Legislature. "That isn't going to happen now."

It was good news to people who saw the challenge as a waste of time by the GOP-controlled Legislature, which was represented in the case by lawmakers on the Legislative Council.

"I think even the Legislative Council should have realized it was futile for them to attempt it," said Rep. Al Kookesh, an Angoon Democrat and co-chairman of the Alaska Federation of Natives. "They didn't have (legal) standing."

But it came as a blow to others who saw the legal challenge as an opportunity to undermine federal control of navigable rivers and streams in Alaska.

"It's a major loss to the state in my estimation in terms of leverage to getting the feds the hell out," said Juneau's Carl Rosier, president of the Alaska Outdoor Council.

The Katie John case was named for an Athabaskan elder who was denied a subsistence fishing camp along navigable waters in the Wrangell-St. Elias National Park in 1990. John argued that a federal law granting a subsistence priority to rural residents on public lands extended to navigable waters.

A federal court ruled that the rural priority applied on navigable waters where the federal

government has a reserved water right - a decision that led to a federal takeover of subsistence fisheries on waters that cross federal land. Opponents fear that the feds eventually will expand their jurisdiction and take control of other waterborne activities, such as commercial fishing and tourism.

The state fought the Katie John lawsuit but lost on appeal, and Gov. Tony Knowles, a Democrat, dropped the case in August, saying he would not appeal to the U.S. Supreme Court.

The move outraged some Republicans in the Legislature, which tried to intervene so it could appeal the case. But the chief deputy clerk of the U.S. Supreme Court rejected the Legislature's petition in October, saying lawmakers missed the deadline to file.

Knowles initially had until Aug. 5 to appeal, but the Supreme Court granted him a 60-day extension to Oct. 4. Knowles dropped the case Aug. 27 and the Legislature filed its petition Oct. 4.

However, the court clerk ruled the 60-day extension applied only to Knowles, not to lawmakers, and rejected the petition on the grounds the Legislature missed the Aug. 5 deadline.

The Legislature appealed the clerk's ruling to the Supreme Court, arguing it did not know it needed to intervene until Knowles dropped the case after Aug. 5. However, on Monday the justices without explanation declined to hear the Legislature's arguments. The ruling came as no surprise to state Attorney General Bruce Botelho.

"When the Legislature made the decision to appeal the decision of the clerk to the U.S. Supreme Court itself, it was a virtual certainty that decision would be denied, and it was," Botelho said.

Palmer Republican Rep. Scott Ogan said the Legislative Council could intervene in a lawsuit recently filed by two residents on the same issue.

"The problem is we're back at ground level," said Ogan, who serves on the council. "They have to go through the lower courts and it just takes time. It's going to be many, many years before that case can get up to a Supreme Court level."

Kathy Dye can be reached at kdye@juneauempire.com.



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