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Kenaitze Indian Tribe v. Alaska

Citation: 19 ELR 20241
No. No. 87-4110, 860 F.2d 312/(9th Cir., 10/24/1988, 01/04/2089)

The court holds that the state of Alaska violated provisions of the Alaska National Interest Lands Conservation Act (ANILCA) giving subsistence users in federal waters in rural areas priority over commercial sport fishing. The state had issued a regulation defining "rural" as only those areas dominated by subsistence uses. The principal effect of this regulation was to deny the subsistence fishing priority to residents of areas dominated by a cash economy, even though the areas might otherwise be characterized as rural and a substantial proportion of the area residents may engage in subsistence activities. The court first holds that it does not owe deference to the interpretation of the statute advanced by the state and approved by the Department of the Interior. The Department's approval of the state's definition of "rural" in a 1986 letter has no legally binding effect, since the state elected for self-regulation with federal oversight. That the state is operating similar to a federal agency with respect to its implementation of ANILCA is an insufficient basis for the court to defer to the state's interpretation. Although Alaska has a long history of managing large wilderness areas, it lacks expertise in implementing federal laws and policies and does not have the national perspective of a federal agency. Moreover, ANILCA's provision for self-regulation allows the state to regulate in a manner consistent with federal law, but does not delegate any independent authority under ANILCA.

The court then holds that the state's definition of "rural" violates ANILCA § 803, which directs that priority be given to subsistence uses by rural Alaska residents. The state's definition causes subsistence users who happen to live in areas with a primarily cash economy to be denied the subsistence priority, and would exclude many areas in the United States that one would consider rural. The court rejects the state's argument that its definition promotes ANILCA's policy of protecting the subsistence way of life by excluding areas where that way of life has been supplanted by a cash economy. Although statutory language may sometimes be ambiguous, the state may not invent a completely new meaning for a statutory term, and the federal government has often used the term "rural" in a manner consistent with conventional understanding. Congress did not limit the benefits of ANILCA to residents of areas dominated by a subsistence economy, and to accept the state's definition would materially change the statute's scope. Moreover, the state's interpretation would lead to an inconsistency within ANILCA, since its definition would result in ANILCA's two priority levels becoming redundant.

Counsel for Plaintiff-Appellant
Carole H. Daniel, Donald S. Cooper
Alaska Legal Services Corp.
550 W. Eighth Ave., Anchorage AK 99501
(907) 272-9431, (907) 276-6282

Counsel for Defendant-Appellee
Sarah E. McCracken, Ass't Attorney General
1031 W. 4th St., Ste. 200, Anchorage AK 99501
(907) 276-3550

Before Noonan and Thompson, JJ.*