On Dec 22, 1989, the State Supreme Court ruled that the State law (1978, amended in 1986) granting a subsistence priority based solely on residency is unconstitutional under the AK State Constitution.

"The impact of this decision is clear: State law is not out of compliance with ANILCA. The former rules remained in affect until July 1990, as a result of the Supreme Court's stay. After that, if there is no State and/or Federal solution, "dual management" will occur: the Fed gov will take over management of fish and game on its 'public lands' (60% of AK)while the State will retain management on State and private lands (including Native corp. lands). Over all, there are four kinds of choices: to amend the State Constitution, to amend ANILCA, to amend both, or to do nothing.

Case found that the state's rural preference violated 3 provisions of AK's State Constitution. Basically the McDowell case found an inconsistency between ANILCA and the state's Constitution.

McDowell v. State threw out subsistence priority because it violated the state constitution. So, either change ANILCA or amend Constitution.

The ruling on the McDowell case undermines the subsistence protections for rural Alaskans, especially the Aleuts, Eskimo, and Indian peoples. the court ruled that a rural priority violates "equal access" and other provisions of the Alaska State Constitution. Because the state was no longer in compliance with ANILCA, the fed. gov. stepped in to take over management on all federal lands. A result of all this is that the federal and state governments each have their own distinctive legislative mandate with separate regulatory frameworks. This ruling undermines subsistence protections.

The state's rural priority was found in violation with the state's constitution. The court prohibited the state from using rural residency as the basis for its subsistence program, but left unclear just what standard would be constitutional. A subsequent superior court ruling found that McDowell did not invalidate the state's entire subsistence law, but only the rural definition.

"Plaintiffs Sam McDowell, Dale Bondurant, Ronald Mahle and Harold Eastwood, men who had engaged in subsistence hunting and fishing in the past, wanted to continue to do so. They couldn't because of where they lived and argued that the 1986 law discriminated against urban residents who lived the "subsistence lifestyle". It also gave subsistence rights to rural residents, whether they traditionally engaged in that lifestyle or not.

State lawyers, defending the 1986 Subs. Act, argued that because any resident could move to a rural area, the law didn't create an exclusive and permanently closed group of subsistence users. The Supreme Court majority rejected that argument. But they said it is possible that some method of discrimination would be legal: 'We hold only that the residency criterion used in the 1986 act which conclusively excludes all urban residents from subsistence hunting and fishing regardless of their individual characteristics is unconstitutional.

In his separate but concurring opinion, Justice Daniel Moore said as subsistence preference law could pass constitutional tests if it provided for 'individual determinations of eligibility.' Dissenting Justice Jay Rabinowitz said the 1986 law compiled with the constitution because it set up a system of preferences, not a monopolistic, exclusive, or 'otherwise closed class.'

The Supreme Court also discounted the contention that the 1986 law was important because it complied with ANILCA. 'State control (of fish and game resources) merely for the sake of control is a questionable goal when the terms infringe upon the open access values (in the state constitution).'"

Alaska Supreme Court McDowell decision which says the intent of the law is fine but that the "rural" classification is a "crude" and unconstitutional match to the purpose of the law. The court suggests individual rather than group criteria be used to meet the purpose of the law.

Taylor Brelsford: "In the McDowell case, the Alaska Supreme Court found the rural residency criteria of the state subsistence law to be unconstitutional. The rural residency criteria was held to violate three constitutional provisions concerned with the natural resources of the state: the common use clause (Article VIII Section 3), the bar on exclusive rights of fisheries (Article VIII Section 13) and the equal application of laws clause (Article VIII Section 17). As with the Madison case, this decision raises the likelihood of noncompliance with the ANILCA requirements."

Scott Ogan, Representative in the Alaska State Legislature: The Alaska Supreme Court ruled that the Alaska Constitution, which was ratified and approved by Congress in the Statehood Compact, prohibits granting a rural subsistence preference. The court found that the 1986 subsistence law was unconstitutional because it excluded urbal residents from subsistence activities.