TODD KIM
`Assistant Attorney General
`United States Department of Justice
`Environment and Natural Resources Division
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`PAUL A. TURCKE (Idaho Bar No. 4759)
`Trial Attorney
`Natural Resources Section
`P.O. Box 7611
`Washington, D.C. 20044
`202-353-1389 || 202-305-0275 (fax)
`paul.turcke@usdoj.gov
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`Counsel for Plaintiff
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ALASKA
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`THE UNITED STATES OF AMERICA,
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`v.
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`THE STATE OF ALASKA, THE ALASKA
`DEPARTMENT OF FISH & GAME, and
`DOUG VINCENT-LANG, in his official
`capacity as Commissioner of the Alaska
`Department of Fish & Game,
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`Plaintiff,
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`Defendants,
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`Case No.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`United States v. Alaska
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Plaintiff the United States of America, through its undersigned attorneys, by the
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`authority of the Attorney General, and at the request of the United States Department of
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`the Interior and the United States Department of Agriculture, through their Federal
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`Subsistence Board, brings this civil action for declaratory and injunctive relief against
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`Defendants State of Alaska, its Department of Fish & Game and Commissioner Doug
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`Vincent-Lang (collectively, the “State of Alaska” or “State”), and alleges as follows:
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`INTRODUCTION
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`1.
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`The United States brings this action against the State of Alaska to protect
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`subsistence use of the Kuskokwim River Chinook and chum salmon populations by local
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`rural residents who depend on these salmon for their physical, economic, traditional, and
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`cultural existence. The United States seeks a declaration under the Federal Declaratory
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`Judgment Act, 28 U.S.C. § 2201, that the State’s actions in contravention of a rural
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`Alaskan subsistence priority are preempted by federal law and are therefore unlawful.
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`2.
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`Title VIII of the Alaska National Interest Lands Conservation Act, Pub. L.
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`No. 96-487, 94 Stat. 2371, 2371-2551 (1980) (codified at 16 U.S.C. §§ 3111–3126)
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`(“ANILCA”), requires the Secretaries of the Interior and Agriculture to accord priority
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`for the nonwasteful subsistence uses by rural Alaskans of fish and wildlife on public
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`lands in Alaska. 16 U.S.C. § 3114.
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`3.
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`The Federal Subsistence Board (“FSB”) accomplishes this mandate, under
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`a delegation from the Secretaries of the Interior and Agriculture, through the adoption of
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`regulations that implement the rural priority in a manner consistent with the preservation
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`United States v. Alaska
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`of healthy populations of fish and wildlife within national wildlife refuges and other
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`conservation system units in Alaska. 16 U.S.C. § 3124-5; 50 C.F.R. § 100.18. This
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`includes the FSB’s authority to: (a) adopt short-term emergency special actions to restrict
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`or close public lands to the taking of fish and wildlife for non-subsistence uses when
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`necessary to ensure the conservation of healthy populations of fish and wildlife or to
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`continue subsistence uses, 16 U.S.C. § 3125(3); 50 C.F.R. § 100.19; and (b) to re-
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`delegate its authority to agency field officials to set harvest limits, define harvest areas,
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`and open or close harvest seasons within frameworks established by the FSB, 50 C.F.R. §
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`100.10(d)(6).
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`4.
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` In 2021 and 2022, the FSB and agency field officials exercised their
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`authority under ANILCA to issue emergency special actions to close the 180-mile-long
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`section of the Kuskokwim River within the Yukon Delta National Wildlife Refuge (the
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`“Refuge”) to non-subsistence uses, while allowing limited subsistence uses by local rural
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`residents under narrowly prescribed terms and means of harvest. The FSB and
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`authorized agency officials determined these actions to be necessary to conserve the fish
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`population for continued subsistence uses of the Chinook salmon upon which rural
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`residents of the area depend.
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`5.
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`In contravention of the federal regulatory scheme of ANILCA Title VIII
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`and the associated federal regulatory actions addressing Kuskokwim River fishing within
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`the Refuge, the State of Alaska, through the Alaska Department of Fish & Game
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`(“ADF&G”), issued emergency orders in 2021 and 2022 that purported to provide
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`opportunities for all Alaskans – not just rural Alaskan subsistence users – to fish on the
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`same stretch of the Kuskokwim River that had been closed to non-subsistence harvest by
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`federal emergency special action.
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`6.
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`The State of Alaska’s actions conflict with ANILCA Title VIII and federal
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`regulations. The State’s actions threaten the conservation of the Chinook and chum
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`salmon populations, usurp the rural priority, and reduce opportunities for those who are
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`most dependent on the salmon resources of the Kuskokwim River for their physical,
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`economic, traditional, and cultural existence – local rural residents.
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`7.
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`The United States therefore seeks a declaratory judgment that the State’s
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`regulatory actions that contravene or interfere with federal actions are preempted by
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`federal law. The United States also seeks to enjoin the State of Alaska, ADF&G, and
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`their officers, employees, and agents from continuing to adopt, implement or enforce any
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`state action that purports to authorize or encourage harvest of fish or wildlife that
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`contravenes or interferes with federal law or regulatory actions instituted by the FSB or
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`authorized federal officials.
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`PARTIES
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`8.
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`Plaintiff is the United States of America, acting through the United States
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`Department of the Interior and the United States Department of Agriculture, and the FSB.
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`The FSB administers subsistence uses in Alaska pursuant to and in accordance with
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`federal law.
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`9.
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`Defendant, the State of Alaska, is a State of the United States. The State of
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`Alaska includes all of its officers, employees, and agents.
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`10. Defendant ADF&G is an agency of the State of Alaska charged with
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`implementing state law to manage, protect, maintain, improve, and extend the fish, game,
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`and aquatic resources of Alaska.
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`11. At all times relevant to the events that are the subject of this dispute,
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`Defendant Doug Vincent-Lang has served as Commissioner of the ADF&G.
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`Commissioner Vincent-Lang is the highest-ranking official within the ADF&G and, in
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`that capacity, has ultimate responsibilities for the administration and implementation of
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`fish and wildlife management under Alaska law and for ADF&G’s compliance with all
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`applicable federal laws. He is sued in his official capacity.
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`JURISDICTION AND VENUE
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`12.
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`This Court has jurisdiction pursuant to 28 U.S.C. § 1345 (United States as
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`plaintiff), 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (declaratory relief), and
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`28 U.S.C. § 2202 (injunctive relief).
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`13. Venue is proper in the District of Alaska pursuant to 28 U.S.C. §
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`1391(b)(1)-(2) because Defendants reside within this judicial district, a substantial part of
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`the acts or omissions giving rise to this action arose from events occurring within this
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`judicial district, and the Kuskokwim River and Refuge are situated in this judicial district.
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`LEGAL BACKGROUND
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`14.
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`The Supremacy Clause states “[t]his Constitution, and the laws of the
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`United States . . . shall be the supreme law of the land; and the judges in every state shall
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`be bound thereby, anything in the Constitution or laws of any State to the contrary
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`notwithstanding.” U.S. Const. art. VI, cl. 2.
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`15. Over forty years ago, Congress passed ANILCA, which combined three
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`existing National Wildlife Ranges or Refuges, including all “lands, waters, and interests,”
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`as well as approximately 13.4 million acres of additional public lands, to establish the
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`Refuge. ANILCA § 303(7)(A), 94 Stat. 2392. ANILCA directed that the Refuge be
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`managed as part of the National Wildlife Refuge System “to conserve fish and wildlife
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`populations and habitats in their natural diversity including, but not limited to . . . salmon
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`[. . . .]” ANILCA § 303(7)(B)(i), 94 Stat. 2392. ANILCA also directed that the Refuge
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`be managed “to provide . . . the opportunity for continued subsistence uses by local
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`residents.” ANILCA § 303(7)(B)(iii), 94 Stat. 2393 (emphasis added).
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`16. ANILCA Title VIII requires the Secretaries of the Interior and Agriculture,
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`and therefore the FSB, to implement a priority for the nonwasteful “subsistence uses” of
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`fish and wildlife on public lands in Alaska over the taking on such lands of fish and
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`wildlife for other purposes. 16 U.S.C. § 3114.
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`17.
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`The phrase “subsistence uses” is defined in ANILCA as “customary and
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`traditional uses by rural Alaska residents of wild, renewable resources for direct personal
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`and family consumption as food, shelter, fuel, clothing, tools, or transportation; for the
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`making and selling of handicraft articles out of nonedible byproducts of fish and wildlife
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`resources taken for personal or family consumption; for barter, or sharing for personal or
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`family consumption; and for customary trade.” 16 U.S.C. § 3113 (emphasis added).
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`18. Congress implemented the rural subsistence use priority after finding that:
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`a.
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`The continuation of the opportunity for subsistence uses by rural residents
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`of Alaska on public lands is essential to both Native physical, economic, traditional, and
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`cultural existence, and to non-Native physical, economic, traditional and social existence;
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`b.
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`The situation in Alaska is unique in that, in most cases, no other practical
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`alternatives are available to replace the food supplies gathered from fish and wildlife
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`resources by rural residents dependent on these resources; and
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`c.
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`Continuation of the opportunity for subsistence uses is threatened by the
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`increasing population of Alaska. 16 U.S.C. § 3111.
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`19.
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`The Ninth Circuit has affirmed the “great emphasis” placed by Congress on
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`providing rural Alaskans with an opportunity to maintain a subsistence way of life and
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`the FSB’s obligation to provide rural subsistence users with a meaningful use preference.
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`Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1192-93 (9th Cir. 2000);
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`see also Native Vill. of Quinhagak v. United States, 35 F.3d 388 (9th Cir. 1994).
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`20.
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`The FSB generally implements the rural priority through the adoption of
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`permanent regulations on a biennial cycle, issuing wildlife regulations in even-numbered
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`years and fisheries regulations in odd-numbered years. 16 U.S.C. § 3124; 50 C.F.R. §
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`100.18.1 During the intervening periods, the FSB may also adopt temporary or
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`emergency special actions when necessary for conservation or to continue subsistence
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`1
`Identical regulations promulgated by the Department of Agriculture are found at
`36 C.F.R. Part 242. Citations herein are to the Department of the Interior regulations at
`Title 50, Part 100 of the Code of Federal Regulations.
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`uses, among other reasons. 16 U.S.C. § 3126; 50 C.F.R. § 100.19. In the interest of
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`efficiency in decision-making and reliance on local expertise, the FSB often re-delegates
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`its authority to federal land managers in the field who are best situated to adopt out-of-
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`cycle special actions within their units that are necessitated by changing circumstances or
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`conditions to address the rural subsistence use priority, conservation needs, or other
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`considerations. 50 C.F.R. § 100.10(d)(6). This re-delegation is particularly necessary
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`and beneficial to address uncertain predictions and rapidly changing conditions as actual
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`run strength information becomes available during the salmon spawning season.
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`21.
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`The Refuge manager has been delegated the authority by the FSB to serve
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`as the local agency decision maker for the Kuskokwim River.
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`FACTUAL BACKGROUND
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`The Kuskokwim River and Chinook Conservation
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`22. At over 700 miles long, the Kuskokwim River is the longest free-flowing
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`river in the United States. It drains a remote area of the Alaska interior on the north and
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`west side of the Alaska Range and flows generally westward into Kuskokwim Bay on the
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`Bering Sea. There are numerous subsistence-dependent rural villages along the river and
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`its tributaries, most of whose residents are members of the thirty-three different federally
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`recognized tribes located in the Kuskokwim drainage area. The lower 180 river miles are
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`within the boundaries of the Refuge.
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`23.
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`The Kuskokwim River supports stocks of Chinook (or king), chum (dog),
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`sockeye (red), humpback (pink), and coho (silver) salmon. To conserve healthy
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`populations of salmon, the State of Alaska has established minimum goals for
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`escapement of the five species of salmon to allow them to spawn. Escapement refers to
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`the number of fish allowed to escape the active fishery and reach traditional spawning
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`areas. The State expresses its escapement goal for Chinook on the Kuskokwim as a range
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`of between 65,000 and 120,000 fish. However, both the federal in-season manager and
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`Kuskokwim River Inter-Tribal Fish Commission (the “Inter-Tribal Fish Commission”),
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`which is comprised of local residents with traditional ecological knowledge of salmon
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`fisheries as well as a former federal biologist, have concluded that the escapement goal
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`must be set at a minimum of 110,000 to preserve future run strength.
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`24. While the 25-year average escapement is 243,000 Chinook, even the
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`minimum State escapement goals were not met in 2010, 2011, 2012, 2013, and were just
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`barely met in several other recent years despite conservation efforts.2 When fishing is
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`open, the average annual subsistence harvest is 87,000 Chinook. The Chinook harvest
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`constituting the amount necessary for subsistence uses is 67,200 to 109,800 fish.
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`25.
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`The Kuskokwim River has historically supported Alaska’s largest
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`subsistence salmon fishery, based on both numbers of rural residents supported and
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`2
`Data that is more recent reflects a continuing trend, if not increasingly dire
`circumstances. On January 21, 2022, at the request of the Alaska Governor, the National
`Oceanic and Atmospheric Administration issued multiple fishery disaster determinations,
`including for the 2020 Kuskokwim salmon fishery. See https://www.noaa.gov/news-
`release/secretary-of-commerce-issues-multiple-fishery-disaster-determinations-for-alaska
`(last visited May 16, 2022). Among other criteria, this determination requires a finding
`of fishery impacts from “natural causes beyond the control of fishery managers to
`mitigate.”
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`salmon harvested. Per capita income in this area is among the lowest in the State, with a
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`disproportionately high production of wild foods for local use. Salmon traditionally
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`comprise about half of the total weight of food produced for local village residents. The
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`importance of salmon to local residents, and particularly Chinook, extends beyond
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`nutrition. Coexistence with, and harvest of, these fish are interwoven with these
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`communities’ sociocultural identity and way of life.
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`26. When the population of one species is low but others remain healthy,
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`conservation efforts are complicated by the fact that the run timing of these different
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`species overlap such that it is impossible to fish for the healthy species without
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`inadvertently catching those for which there is a conservation need. Gillnetting is the
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`only practical method for catching enough salmon to meet subsistence needs on the
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`Kuskokwim, but fish caught in gillnets do not survive and cannot be returned to the river
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`unharmed.
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`27.
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`Since at least 2009, the Kuskokwim Chinook runs have been significantly
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`below historic levels, causing local residents to supplement their catch with other species
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`to address subsistence harvest needs. These particularly include chum salmon, which
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`have become critical for food security and are also necessary for unique traditional foods
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`that cannot be prepared using other species. However, the 2021 Kuskokwim chum
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`salmon returns were “the lowest on record” with estimated escapement of only 4,153 in
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`comparison to the target escapement of 15,000-49,000 for chum salmon. See
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`https://www.adfg.alaska.gov/static/applications/dcfnewsrelease/1345527186.pdf at 4 (last
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`visited May 16, 2022).
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`Federal Actions and Conflicting State Actions
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`28.
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`Every year since 2012, in response to the downward trend in the Chinook
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`salmon population and the repeatedly low numbers predicted by the State’s pre-season
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`run projections, both federal and state managers have announced emergency closures to
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`gillnet fishing at the start of the season for a period of at least several weeks until run
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`strength can be verified and adequate escapement assured.
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`29.
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`These closures are typically punctuated by short openings to certain types
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`of fishing by federally qualified subsistence users. Federal decision-making with respect
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`to the details of these openings always follows pre-season and in-season coordination
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`between state and federal managers, and consultation with the Inter-Tribal Fish
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`Commission, a State advisory group called the Kuskokwim River Salmon Management
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`Working Group, and the Chair of the local Subsistence Regional Advisory Council. It is
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`also common for the federal manager to hold pre-season public outreach meetings in
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`villages along the river.
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`30.
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`Following a series of discussions with the Inter-Tribal Fish Commission
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`and ADF&G representatives starting in late 2020 and the first half of 2021 in preparation
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`for the upcoming season, including a telephonic meeting to receive public comments, the
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`federal in-season manager with delegated authority from the FSB, Mr. Boyd Blihovde,
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`issued a federal emergency special action on May 7, 2021, in which he closed the
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`Kuskokwim River main stem to the harvest of all salmon by using gillnets, and also
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`closed various tributaries to the harvest of Chinook and the use of all gillnets effective
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`June 1, 2021. See Exhibit 1, Emergency Special Action (“ESA”) #3-KS-01-21.
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`Subsistence fishing for salmon was permitted by federally qualified subsistence users
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`only, using dip nets, rod and reel, and other methods allowing for the live release of
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`Chinook. Except for federal subsistence-only openings, the federal closure remained in
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`effect until July 22, 2021.
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`31. When making his closure decision, Mr. Blihovde relied heavily on both
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`ADF&G’s preseason forecast of 94,000-155,000 Chinook and the historical Chinook
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`subsistence harvest range of 67,200-109,800, which, if unrestricted, would mean an
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`escapement projection ranging from 0 to 87,800, well under federal escapement goals
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`under the best-case scenario. Moreover, much of that escapement range would fall below
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`even the State’s goal of 65,000, deemed necessary to maintain the Chinook salmon
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`population.
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`32.
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`The same May 7th announcement included the following opportunities in
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`the Kuskokwim main stem for federally qualified subsistence users only:
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`a.
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`b.
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`The use of nearshore set gillnets on June 2, 5, and 9; and
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`The use of set or drift gillnets during 12-hour periods on June 12 and 15.
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`33. Mr. Blihovde subsequently announced additional openings to federally
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`qualified subsistence users as follows:
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`a.
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`Harvest with set or drift gillnets for 12 hours on June 19. See Exhibit 1,
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`ESA #3-KS-02-21.
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`b.
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`The use of set or drift gillnets downstream of Kalskag Bluffs during 9 or
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`12-hour periods on July 2, 9, and 16. See Exhibit 1, ESA #3-KS-03-21.
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`c.
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`Harvest with nearshore set gillnets only on July 10-11, and 17-18. Id.
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`34. ADF&G initially announced a closure to the use of gillnets on the
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`Kuskokwim within the Refuge for reasons of conservation from June 1 until further
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`notice consistent with the federal closure. See Exhibit 2, Emergency Order (“EO”) #3-S-
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`WR-01-21. However, the State then proceeded to adopt several emergency orders
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`purporting to authorize gillnet openings to all Alaskans on Refuge waters during some of
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`the same periods that Mr. Blihovde announced openings for federally qualified
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`subsistence users only, thereby directly undermining the federal subsistence priority:
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`a.
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`On May 11, ADF&G adopted an order providing subsistence fishing
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`opportunities for all Alaskans along the entire length of the river within the Refuge to use
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`of nearshore set gillnets on June 2, 5, and 9. See Exhibit 2, EO #3-S-WR-02-21.
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`b.
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`On June 10, ADF&G ordered subsistence fishing opportunities for all
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`Alaskans to use set or drift gillnets along the entire length of the river within the Refuge
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`on June 12 and 15. See Exhibit 2, EO #3-S-WR-04-21.
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`c.
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`On June 18, ADF&G adopted an order allowing opportunities for set or
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`drift gillnet fishing in the easternmost section of the Kuskokwim River within the Refuge
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`(known as section 3) starting on June 19 until further notice even though the federal
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`closure remained in effect. This announcement also allowed for the retention of Chinook
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`salmon taken using other methods allowing live release. See Exhibit 2, EO #3-S-WR-06-
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`21.
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`d.
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`On June 25, the State announced set or drift gillnet fishing openings for 12
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`hours on June 28, and retention of Chinook caught by other means during that same 12-
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`hour period from the mouth of the river upstream to the Kalskag Bluffs. This state
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`opening was not mirrored by any federal subsistence opening at that time. See Exhibit 2,
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`EO #3-S-WR-07-21.
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`e.
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`On July 1, ADF&G adopted an order allowing multiple openings, including
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`using set or drift gillnets in the main stem downstream of Kalskag Bluffs during 9 or 12-
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`hour periods on July 2, 9, and 16 and using nearshore set gillnets on July 10 and 17. See
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`Exhibit 2, EO #3-S-WR-08-21.
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`35.
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`The effect of each of these announced opportunities for all Alaskans was to
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`cause confusion and encourage violation of the federal closure by non-federally qualified
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`subsistence users.
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`36. A similar pattern has begun for the 2022 Kuskokwim River salmon fishery.
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`Following similar coordination and outreach as occurred leading up to the 2021 season,
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`Mr. Blihovde issued a federal emergency special action on May 2, 2022, in which he
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`closed the Kuskokwim River main stem to the gillnet harvest of all salmon, and also
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`closed various tributaries to the harvest of Chinook and the use of all gillnets effective
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`June 1, 2022. See Exhibit 1, ESA #3-KS-01-22.
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`37. As in 2021, this same announcement included limited openings for
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`federally qualified users to harvest salmon by set gillnet on June 1, 4 and 8, 2022, and to
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`harvest salmon by set and drift gillnet on June 12 and 16, 2022. Id.
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`38.
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`In similar fashion as in 2021, ADF&G announced on May 13, 2022, a
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`closure to the use of gillnets on the Kuskokwim within the Refuge for reasons of
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`conservation from June 1 until further notice consistent with the federal closure. See
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`Exhibit 2, EO #3-S-WR-01-22. And then ADF&G issued a second announcement on the
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`same day, purporting to authorize gillnet openings to all Alaskans on Refuge waters on
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`June 1, 4, and 8, 2022, during three of the same periods that Mr. Blihovde announced
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`openings for federally qualified subsistence users only. See Exhibit 2, EO #3-S-WR-02-
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`22.
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`39.
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` These State actions directly undermine the federal subsistence priority.
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`Federal Efforts to Collaborate and Coordinate with ADF&G
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`40.
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`In 2014, Commissioner Vincent-Lang, who was then head of ADF&G’s
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`Division of Wildlife, appeared at a public meeting of the FSB and presented a statement
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`on a variety of issues, including expressing the State’s future intent to disregard federal
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`closures and provide harvest openings for all Alaskans.3 See Exhibit 3 at 2-8 (Excerpts
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`from April 15, 2014, FSB meeting).
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`41. On June 16, 2020, during an email exchange with then-U.S. Fish and
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`Wildlife Service Regional Director and FSB Board member Greg Siekaniec concerning
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`3
` Transcript of the Federal Subsistence Board Public Regulatory Meeting, Volume
`I, April 15, 2014, pg. 35. Vincent-Lang was not a state employee during the
`administration of Governor Walker (2014-2018) but was appointed Commissioner in
`2019 after Governor Dunleavy was elected.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`the federal closure on the Kuskokwim, Commissioner Vincent-Lang repeated his earlier
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`message, writing:
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`The state will manage its state fisheries this season based on our
`escapement goals and projections. When we are comfortable to [sic]
`meeting our king goals and have surplus chum and sockeye we will open
`state subsistence fisheries for these species. We see no reason to restrict
`opportunity for state qualified users, especially those economically or
`socially displaced to an urban area. The state will not enforce a federal only
`fishery.
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`See Exhibit 3 at 9. State and federal law use the same definition of “subsistence use,” but
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`“state qualified users” include not just rural residents but “all Alaska residents[.]” See
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`https://www.adfg.alaska.gov/index.cfm?adfg=subsistence.definition#:~:text=Both%20Al
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`aska%20state%20law%20(AS,%2C%20barter%2C%20and%20customary%20trade (last
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`visited May 16, 2022) (citing Alaska Stat. § 16.05.940(32)). Mr. Vincent-Lang’s
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`response ignored that the reason to restrict opportunity for those users is to prioritize
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`federally qualified subsistence users consistent with ANILCA Title VIII.
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`42.
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`In 2021, when the State started to adopt emergency orders purporting to
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`authorize openings for subsistence harvest by all Alaskans on the Kuskokwim, the FSB
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`initiated communications with Commissioner Vincent-Lang and the Alaska Board of
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`Fisheries concerning the State’s actions.
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`43. On May 27, 2021, the Board wrote a letter to “invite discussion” between
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`federal and state officials to more effectively collaborate. The letter described Mr.
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`Blihovde’s pre-season planning efforts, the federal order closing harvest by non-federally
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`qualified subsistence users, the State’s May 11, 2021, adoption and announcement of a
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`harvest opportunity for all Alaskans, and the need to provide better public service through
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`clear, unambiguous messaging to the residents of Alaska. See Exhibit 3 at 10-11.
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`44.
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`In a response dated June 3, 2021, Commissioner Vincent-Lang declined to
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`address the ANILCA rural subsistence priority, but instead conveyed the State’s
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`conclusion that there are sufficient salmon to allow harvest by all Alaskans and discussed
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`his perceived obligation pursuant to the Alaska State Constitution to provide for all
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`Alaskans. See Exhibit 3 at 13.
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`45.
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`In a response dated June 24, 2021, FSB Chair Anthony Christianson
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`explained the biological basis for the federal closure and reiterated the FSB’s legal
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`obligations under ANILCA Title VIII. Mr. Christianson also expressed the need for the
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`FSB and the State to work together to attempt to meet both state and federal mandates
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`through coordinated planning efforts. See Exhibit 3 at 16-17.
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`46.
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`The next day, the State announced an opportunity for subsistence gillnet
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`harvest by all Alaskans to occur on June 28. See Exhibit 2, EO #3-S-WR-07-21. There
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`was no opportunity under order of the FSB or the federal in-season manager for harvest
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`on that date for federally qualified subsistence users. Thus, even federally qualified
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`subsistence users, who are also Alaskans qualified to fish under state subsistence rules,
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`could not fish on that day without violating the federal closure.
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`47.
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`The State’s action to authorize subsistence fishing by all Alaskans on June
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`28, 2021, put federal managers in the position of either ignoring anyone fishing in
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`violation of the federal closure during the state opening, and thereby failing to provide for
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`the rural subsistence priority, or seeking to enforce the federal closure even though some
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`of those fishing might actually have been federally qualified subsistence users believing
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`their harvest was authorized by the state opening.
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`48. On June 25, 2021, Chair Christianson sent another letter addressed to
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`Commissioner Vincent-Lang and state managers for the Kuskokwim that concluded as
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`follows:
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`Your announcement of a gillnet opportunity for all Alaskans on Monday,
`June 28 is in violation of the current closure and of Federal law. Moreover,
`it invites Alaskans who may not understand the complex interplay between
`State and Federal law to unwittingly engage in unlawful activity.
`Accordingly, in the interests of public service and conservation of the
`resource, we ask that you immediately rescind the announced opening and
`refrain from further efforts to open State gillnet fisheries on the
`Kuskokwim River or its tributaries within the exterior boundaries of the
`Refuge while the current or any future Federal closures are in effect.
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`See Exhibit 3 at 20.
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`49. Commissioner Vincent-Lang responded not to the FSB or to Chair
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`Christianson, but to Mr. Siekaniec. In a letter dated June 30, 2021, the Commissioner
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`wrote, “[i]rrespective of federal authorities, the State of Alaska has a constitutional
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`respon