THE FEDERAL ASSUMPTION PROCESS, 1989-1993 (continued)
B. Initial Federal Subsistence Management Efforts
Federal officials, being unfamiliar with the day-to-day details of fish and game management and not knowing how long they might be entrusted with the task, were guided in their initial efforts by regulations that had been published just hours before the June 30 deadline that Chief Justice Matthews had set. These regulations, aired at the various public meetings during mid-June, were finalized later that month (as a "final temporary rule") and were published in the June 29 Federal Register. Sprawled out over more than fifty pages of that standardized government document, more than two-thirds of its contents was a compilation of specific game, fish, shellfish and trapping regulations, most of which were copied from similar state regulations. The remainder of the document, however, was an analysis of why these regulations were necessary, how they were formulated, and a general description of how federal agencies intended to manage subsistence resources. The federal government still hoped and expected that its management role would be temporarythe regulations reiterated that "it is preferable to have [subsistence fish and game] management responsibility lie with the State." To that end, government officials decided to make no initial changes to the State of Alaska's customary and traditional use determinations. In addition, the regulations were applicable only until December 31, 1991, unless the state was able to reassume subsistence management prior to that time. 
Key to the assumption process was the limited role that the federal government proposed over fisheries management. This role was reflected in regulations that excluded federal jurisdiction over navigable waters, which were defined as "those waters used or susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water." Federal regulators explained their decision in this way:
Because Alaska's navigable waters contained virtually all of the state's habitat in which fish were typically harvested for subsistence purposes, the practical effect of the regulations language (as noted above) was that the federal government had minimal authority to manage the state's subsistence fisheries. Although the June 29, 1990 issue of the Federal Register spent many pages detailing subsistence fish and shellfish regulations, federal managers made few decisions in the fisheries arena as long as this rule held sway. 
A central aspect of administering the new regulations was the formation of a Federal Subsistence Board. "Empowering the key Federal land management officials," the regulations noted, "is believed to be the best mechanism for implementing these temporary regulations." As the regulations noted, the board
A key aspect of the newly-constituted board, from the NPS's point of view, was that the boardin which the NPS had only one votehad the legal authority to make resource decisions that affected the status of NPS lands. This shared authority, of course, applied to the other land management agencies as well. To some extent, this sharing of responsibility had also been felt prior to July 1990, when subsistence management decisions on federal lands had been entrusted to the state game and fish boards. Even so, the existence of the Federal Subsistence Board meant that individual agencies had to give up a measure of control. To ameliorate that loss of control, as noted later in this section, the board gave individual agencies some degree of control over their own lands by giving them lead-agency authority to respond to suggested changes in subsistence management patterns. Despite that authority, agencies participating in board decisions often had to accept management changes with which they disagreed.
Federal regulators originally proposed that the board have five members, to be composed of and either the regional or state director of important federal agencies. Four of the agenciesthe Bureau of Land Management, Fish and Wildlife Service, Forest Service, and National Park Servicecomprised Alaska's largest federal land managers. The fifth agency, the Bureau of Indian Affairs, was chosen for two reasons: it oversaw trust responsibilities for Native Alaskans, and because Native allotments which had been selected but not conveyed (and which the BIA consequently exercised some oversight) were considered federal public lands.  In these aspects, the board was thus identical to what had been proposed back in May 1986, when a vote of the Alaska legislature had narrowly avoided federal assumption. From all appearances, both federal officials and the general publicvia their mid-June responses to the draft rulewere largely comfortable with the board's makeup.
The leadership in the originally-constituted board rested with one of the five agency heads; the chair was selected by the Interior Secretary in consultation with the Agriculture Secretary. The first board chair was Walter O. Stieglitz, who also served as Alaska's Fish and Wildlife Service chief; other charter board members included Boyd Evison (NPS), Niles Cesar (BIA), Edward Spang (BLM), and Michael Barton (USFS). Within a few months, however, Curtis McVee, who was Interior Secretary Lujan's Alaska representative, replaced Stieglitz as board chair, and the board thus increased from five to six members.  (See Appendix 1.)
The new Federal Subsistence Board, at first, had virtually no staff upon which it could rely, and only three agencies that comprised the boardNPS, F&WS, and BIAhad personnel that were trained in subsistence issues. One of the first actions following federal assumption, therefore, was a dramatic effort on the part of both the Fish and Wildlife Service (the lead agency administering the federal subsistence program) and other land management agencies to assemble qualified staff. The difficulty of this effort was underscored by the fact that such expertise might be needed for just a short-term period. Because the June 1990 regulations were specific regarding seasons and bag limits, regulations were in place for the various subsistence hunts that were scheduled to take place during the summer and fall of 1990. Staff involvement, however, was necessary to develop the remainder of the federal subsistence program. To assist the F&WS and the other three major land management agencies, Senator Ted Stevens earmarked $11.3 million in Fiscal Year 1991 appropriations "to fund the management of subsistence hunting and fishing on federal lands." The F&WS used its funds to beef up its subsistence staff, and before long, a new bureaucratic entity in the agency had been formed to address subsistence matters.  At the NPS, efforts by Associate Regional Director Paul Haertel helped bolster the Anchorage-based subsistence staff from just one person (Lou Waller) in early 1989 to six in late 1991.  (See Appendix 3.)
To assist the board in its work, the June 1990 regulations called for the formation of a staff committee that would be comprised of a representative of each of the organizations represented on the board. (See Appendix 6.) That committee, which was largely a continuation of the ad hoc federal planning group that had been meeting on a periodic basis ever since the McDowell decision had been meted out, initially consisted of Tom Boyd (BLM), Norman Howse (USFS), John Borbridge (BIA), Don Voros (F&WS), and Bob Gerhard (NPS). Members, at first, had no idea how long they would be serving in their positionsone member signed on with the understanding that he was on a two-month detailbut before long, members recognized that their work required a long-term commitment. 
Federal subsistence officials soon recognized that three primary tasks lay before them, all of which needed substantial public input between the summer of 1990 and the spring of 1991. One task involved the determination of rural versus non-rural areas. A second effort was a revision of specific hunting regulations for the 12-month period beginning July 1, 1991. And a third task involved finalizing other general aspects of the federal subsistence management program through the preparation of an environmental impact statement and the issuance of final regulations. The three tasks, taken together, required a huge amount of human inputby both federal officials and a wide range of interested groups and individualsin just a short time. To guide the completion of those tasks, a newly-established staff committee began meeting on a weekly basis (and sometimes more often) beginning in the late summer of 1990. Some tasks were more complex and time-consuming than others. The three efforts will be addressed in separate paragraphs below.
As noted in Chapters 5 and 6, the state fish and game boards had dealt with the prickly problem of rural versus non-rural determinations numerous times during the 1980s. In April 1982, and again in June 1986, the boards had confronted the issue head-on, and during meetings that followed each of those dates the issue periodically resurfaced. But federal authorities were by no means tied to any previous decisions made by their state counterparts, and federal and state regulations differed. The June 1990 regulations (using guidance derived from the legislative history for ANILCA) stated that "communities 7,000 or greater in population are presumed to be non-rural" and that "a community or area of less than 2,500 population is deemed rural unless it exhibits characteristics of a non-rural nature or area or is part of an urbanized area." But because "a community between 2,500 and 7,000 bears no presumption as to its rural or non-rural status," the regulations mandated that the board "publish the characteristics it will use in determining rural or non-rural status."  It would then make a preliminary determination for all Alaska communities; that decision would be reviewed at a series of public meetings to be held around the state. The board would make final determinationsagain, as determined by language in the regulationsby December 31, 1990.
The public process for making rural versus non-rural determinations commenced with an announcement in the September 25, 1990 Federal Register. That announcement kicked off a public comment period on the subject. A day later, based on staff recommendations, the board made its preliminary determinations, and on October 4 the list of affected communities was published in the Federal Register. The board proposed non-rural designations for Anchorage, Kenai-Soldotna, Palmer-Wasilla, Fairbanks, Juneau, Ketchikan, Kodiak, Sitka, Homer, Seward, Valdez and Adak. The rest of the state was proposed for rural status. Board chairman Walter Stieglitz, in a press release, emphasized the preliminary nature of the board's decisions, and he further announced that hearings would be held in each of the communities for which non-rural status had been proposed. The public was given until December 10 to comment on the board's proposed recommendations. 
Communities in many of the areas declared to be non-rural attempted to reverse the board's proposed designation, and residents were particularly active in those communities that had between 2,500 and 7,000 population. They pressed their case in speeches at either the board field hearings59 such meetings were held between October 23 and early December, all but two of which took place in Alaskaor at various state-managed Regional Advisory Council meetings. On December 17, the board met again and decided that the designation of three communitiesKodiak, Saxman (near Ketchikan), and Sitkashould be changed from non-rural to rural. The designation for all other Alaska communities remained as announced on September 26.  The board's decisions, as it turned out, largely mirrored the rural/non-rural determinations that the state fish and game boards had made prior to the McDowell decision; the only areas with a changed status were Adak, which switched from rural to non-rural, and both Saxman and the Cantwell-Nenana corridor, which went from non-rural to rural.
Before the board (and the staff that worked with it) completed the process of ascertaining its rural/non-rural determinations, work began on a revision of hunting regulations for the year scheduled to begin on July 1, 1991. (See Tables 7-1 and 7-2, following page.) Because of the huge workload that was immediately thrust on federal officials, the public had a fairly limited period of time in which to make suggestions regarding the following year's subsistence hunting regulations. As noted above, the board held almost sixty meetings throughout the state during the fall of 1990. One purpose of those meetings was to solicit comments about changes in the subsistence hunting regulations that had gone into effect on July 1. Alaskans, in response, made a number of suggested revisions (in either oral or written form) during that process, and the board apparently made several amendments to existing regulations during that period. In mid-December, federal officials opened a 30-day public comment perioduntil January 15, 1991for changes to the subsistence hunting regulations. The public responded with 182 proposals. Board staff discarded some proposals because they appeared to be irrelevant to the process at hand; then, during February, staff distributed the remainder to the public for their comments. The comments were forwarded on to the board and its staff, and at a four-day meeting beginning March 4, the board made its initial set of decisions. The regulations approved at the March meeting were published in the April 16, 1991 Federal Register for a 30-day comment period. Then, at a June 4-5 meeting, the board made decisions on another slate of proposals, some of which had been discarded by board staff prior to the March meeting. The new (1991-92) regulations were published in the June 26, 1991 Federal Register. 
Table 7-1. Federal Subsistence Hunting Regulations Chronology, 1990-1993
@ - There were no public meetings in late 1990 or early 1991 specifically related to seasons and bag limits, but between late October and early December 1990, approximately sixty meetings were held throughout Alaska "to take public comment on subsistence uses on Federal public lands in Alaska."
These meetings were to explain, and obtain comments upon, various general aspects of Federal subsistence management; and more specifically to obtain comments on proposed rural/non-rural designations. Many comments were doubtless received regarding seasons and bag limits, even though the Proposed Rule (i.e., proposed regulations) were not distributed until after the meetings had concluded.
* - The April 1991 follow-up meeting, in Anchorage, was held after the FSB meeting and eight days after the Proposed Regulations for 1991-1992 were issued in the Federal Register.
Table 7-2. Proposals Considered by the Federal Subsistence Board, by Region, 1991-1993
NOTE: Numbers associated with the various regions indicate the number of proposals affecting each region. Because the FSB deferred many proposals, the number of proposals acted upon is less than the state total. Special actions and requests for reconsideration are omitted from this table. The regions noted in the table were those devised by the State of Alaska in early 1982.
Source: Final Rule, as published in the May 28, 1992 Federal Register; 1991 records from FSB meeting transcripts, OSM.
* - The number of proposals that the FSB discussed is less than the number proposed to the board because the staff committee discarded many proposals as being irrelevant to the FSB's regulatory process.
@ - The FSB decided upon 79 proposals at its March 1991 meeting and another 36 proposals that June.
The largest job facing the board during its initial months of operationand perhaps its most visible vehicle for interacting with potential subsistence userswas the compilation of a report that would address a number of general questions pertaining to federal subsistence management. As noted above, the prickly issue of rural versus non-rural determinations had been addressed in late 1990, but many other questions remained. For instance, how adequate was the present, state-managed system of local fish and game committees and regional subsistence advisory councils? How should the term "customary and traditional," when applied to the use of fish and wildlife, be defined? Did existing regulations properly address the environmental, socioeconomic and cultural impacts of subsistence activities? And what other topics pertaining to federal subsistence management needed to be addressed? Federal authorities fully recognized that the temporary subsistence regulations, finalized in June 1990, had (by necessity) been prepared in haste, and they also recognized that those same regulations would only be applicable until December 31, 1991. Federal authorities, of course, still had no idea if the Alaska legislature would be able to pass a bill authorizing the state to regain subsistence management of its fish and game resources on federal lands, and they continued to state that they had no particular interest in direct fish and game management. Even so, they had to prepare for the possibility of long-term management responsibilities. In order to address a broad range of management questions, Federal Subsistence Board staff undertook the preparation of an environmental impact statement that would outline several possible management approaches.
The process began in mid-October 1990, when a Fish and Wildlife Service press release announced that work on the EIS was about to begin. Just days after the issuance of that press release, the first of 57 public meetings were held in communities across Alaska asking for comments about the federal subsistence management system. (These meetings, noted above, also solicited comments about rural/non-rural determinations.) The public meetings, held between late October and early December, were attended by a total of 1,690 people, and the public responded with 206 written comments, 91 comment forms, and 28 toll-free telephone calls. Federal officials were thus provided a broad range of views on how subsistence resources should be managed on the state's public lands. These comments, together with the existing regulations and input from the various land managing agencies, provided board staff the data necessary to compile the draft EIS.  The document was assembled over a nine month period by an interdisciplinary team; most of the fourteen authors were Fish and Wildlife Service employees, although a sprinkling of Forest Service, Park Service, and Bureau of Land Management employees also contributed. 
One of the major issues that board staff wrestled with during the preparation of the draft EIS was the adequacy of the state's subsistence advisory councils. (See Appendix 2.) As noted in chapters 5 and 6, the Alaska legislature had first passed a bill recommending regional fish and game decisionmaking back in 1971; Governor Egan, however, had vetoed that bill. Eight years later, the Department of Fish and Game had established the first such councils, and they had been placed on a more formal regulatory footing by action of the combined fish and game boards in April 1982. But because of both fiscal constraints and a multitude of other factors, the various councils had a spotty track record.
On July 1, 1990, the assumption of federal management forced officials to reassess the legitimacy of the state-managed councils. Responding to the requirement set forth in Part 100.11(a) of the temporary (June 1990) federal subsistence regulations, the Federal Subsistence Board commissioned a study in order to ascertain how problems associated with the councils might be overcome. Fish and Wildlife Service employees Richard Marshall and Larry Peterson, assigned to write the study, used the hundreds of comments made during the fall 1990 public hearingsmany of which addressed this specific topicas a primary research tool.
Board chair Curtis McVee, asked for his comments, stated that the councils "are functioning with varying degrees of success. Apparently some councils are not regarded as representative of the population within the region they serve. Some councils do not seem to have much influence on management programs and all of the councils suffer from lack of financial support necessary to fulfill their roles."  McVee, in a separate communication, also let it be known that the councils, until such time as the report was completed, were in legal limbo. Although several regional councils continued to meet, McVee announced that "no State Regional Council," for the time being, "shall be considered legitimately constituted under the Federal Advisory Committee Act and Section 805 of ANILCA." Interior Department representative Vernon Wiggins expressed similar thoughts. As a "strictly interim measure," he noted, the board continued to rely on recommendations made by councils under the existing state advisory system," but only "until the study was completed and pending a final determination on whether a permanent management program would become necessary." 
The authors completed a draft report on the state's advisory council system in early May 1991 and a final report was distributed in September. Because the June 1990 regulations demanded that three topics be examined, the authors provided three conclusions:
The draft Environmental Impact Statement, distributed during the week of October 7-11, 1991, gave four contrasting scenarios on how federal subsistence management might work.
The alternatives in the draft EIS discussed other subsistence-related topics as well. Two of the alternatives, for example, stated that the rural/non-rural determinations made by the board in December 1990 should remain. Another, however, stated that eligibility "would be determined strictly by population number," and only residents in communities less than 7,000 population would be eligible for subsistence activities on federal lands. A final alternative stated that "Anchorage, Fairbanks, Juneau and Ketchikan would be the only non-rural communities." Regarding customary and traditional uses, all four alternatives stated that the State of Alaska's determinations, which the board had adopted en masse on July 1, 1990, "would remain ... unless changed by the board on the recommendation of a local advisory committee [or regional council] or based on information obtained through State or Federal Agency research." All four alternatives called for a continuation of the existing local fish and game advisory committees; language describing Alternative IV, however, cautioned that "Federal advisory committees might be formed if the Board determined that the State committees were not fulfilling the requirements of ANILCA." 
When the Board issued the draft EIS, it gave the public two monthsuntil December 9to submit comments. Hoping to solicit a wide range of public opinion, it outlined a schedule of forty public hearings, which were to be held both throughout Alaska as well as in Washington, D.C. Hearings were to begin on October 28 and would conclude on December 6. When the board issued the draft EIS, chair Curtis McVee professed objectivity in the process. NEPA policy, however, required a preferred alternative. The draft EIS, therefore, noted that the fourth option (as outlined above) was the government's Proposed Action. 
Interest in the process was such that the board held a total of forty-two public hearings, and in addition, the Fish and Wildlife Service held sixteen public meetings at National Wildlife Refuge offices. As a result of those meetings, which attracted hundreds of participants, the public submitted 198 letters plus an additional 350-plus oral comments which merited an official response. 
Because the hearings schedule extended into late November, and because the public had several additional weeks to submit comments, board personnel were well awareeven before the draft EIS was distributedthat new, permanent regulations would not be in place prior to the December 31, 1991 deadline stated in the temporary subsistence management regulations. The need to extend, for five or six months, the effective date of the temporary regulations was first (and erroneously) made public in early June 1991, but it was not officially addressed until early December. The press release announcing the proposed delay noted that "this action will allow time for completion of an environmental impact statement and programmatic regulations," but it was also hoped that the delay would also allow extra time for Governor Walter Hickel to "work out a cooperative agreement to let the state regain subsistence hunting management." The board noted that it would be taking comment on the time extension at its December 18, 1991 meeting. Comments would be due by December 20. 
Soon after the December 9 deadline for public comments to the draft EIS, federal staff proceeded to analyze those comments and quickly began assembling the final EIS. On January 30, 1992, proposed final subsistence regulations were published in the Federal Register, and five days later the board commenced a 45-day public comment period that would continue to March 16.  But the two-volume final EIS was not distributed until late February; this left the public fewer than three weeks to comment on the findings contained in the newly-published document. 
The recommendations contained in the final EIS largely mirrored those contained in Alternative IV (the "Proposed Action") in the draft document. Like the draft, the final EIS recommended the continuation of a six-member board and the establishment of eight federally-managed subsistence regional advisory councils. Local advisory committees, as in the draft, would be managed by the state, but federally-sponsored committees could be formed if the existing committees failed to fulfill the requirements outlined in Section 805 of ANILCA. The document made numerous other recommendations, most of which had first been suggested in the draft version published four months earlier. 
Regulations specified that there would be a thirty-day waiting period between the publication of the final EIS (as noted in the Federal Register) and the all-important Record of Decision.  Following the issuance of the EIS, the board had a single public hearingat the Board's March 9 meeting in Anchorage. The public then had one more weekuntil March 16to provide written comments on the EIS's recommendations.
On April 6, soon after the 30-day waiting period had run its course, Interior Secretary Manuel Lujan, Jr., with the concurrence of Forest Service Regional Director Mike Barton, approved the Record of Decision on Alaskan subsistence management.  The two men decided "to implement Alternative IV as identified in the Final Environmental Impact Statement ... with modifications." Two modifications were made. First, the officials decided to increase the number of regionsand corresponding regional advisory councilsfrom eight to ten. Second, they decided to modify the rural determination process by allowing a five-year grace period for any communities transitioning from rural to non-rural status. Except for those modifications, the federal subsistence program was to be implemented as noted in Alternative IV.
To conform to the particulars of that alternative, the board's regulations were modified. Those regulationswhich listed various customary and traditional use determinations for game, fish, and shellfish throughout Alaskawere published as a Final Rule in the May 29, 1992 Federal Register. They became effective on July 1, 1992.  Two years after the federal government assumed management of Alaska's subsistence resources on the public lands, permanent federal regulations were in place.
During the period in which the draft and final EISs were being written and the Record of Decision produced, the board and supporting staff completed a second round of hearings and deliberations pertaining to subsistence hunting regulations (as they pertained to seasons and bag limits, methods and means). The board, as it had in 1990-91, began its annual regulations cycle by publishing proposed regulations in December. Then, in mid-January 1992, it held six public hearings in locations scattered around the state. By the January 23 deadline, the board had received some 200 proposals to change the regulations, and during the week of April 6-10 the body voted on how to respond to each proposal. The regulations, as modified, were published in the May 28, 1992 Federal Register and became effective on July 1. Unless otherwise acted upon, the regulations were to remain in force until June 30, 1993. 
By the time the board had completed its second annual review of subsistence regulations, basic board customs and procedures had begun to emerge in order to expedite the completion of the tasks at hand. Staff, for example, assigned each proposal to the agency which would be most affected by the proposed action, and in many cases, other agencies deferred to the opinions of the representative from the so-called "lead agency". The F&WS representative, perhaps not surprisingly, was generally regarded as being most knowledgeable about wildlife biology questions (and was thus deferred to in this area), and the BIA representativeagain not surprisinglygenerally weighed in on the side of Native rights. Early board representatives recall that these evolving customs fostered a sense of harmony among the various agency heads. 
The federal assumption of subsistence game management, at first glance, removed any obligation for the Interior Department to subsidize ADF&G's Subsistence Division. (As noted in Chapters 5 and 6, Section 805 of ANILCA called for the federal government to reimburse the state government for costs associated with the management of subsistence activities on federal lands.) But immediately after federal assumption, federal officials recognized the obvious: that they could be far more effective managers if they utilized the ADF&G's experience, data, and technical expertise. Both federal agencies and the public started submitting requests to the ADF&G for information and technical assistance. By the end of 1990, the ADF&G and the U.S. Fish and Wildlife Service (the latter acting on behalf of the Federal Subsistence Board) had worked out a one-year agreement that called for the ADF&G to provide three general areas of expertise: 1) technical assistance to and coordination with federal staff, 2) subsistence data collection in rural Alaska communities, and 3) maintenance and updating of ADF&G's Community Profile Database (CPDB). In return for those products and services, F&WS provided more than $230,000 in funding to the Department's Subsistence Division. (This funding was less than one-third of what the federal government had provided in fiscal year 1990 as part of its "ANILCA reimbursement," but was nevertheless a helpful source of funding for the state's beleaguered Subsistence Division.) The federal-state agreement was renewed on an annual basis for the next several years, but the federal government gradually lost interest in the program, and by the mid-1990s funding levels were far lower than in fiscal year 1991. But other funds became available to the state subsistence program from both the F&WS and other federal agencies. Some of these monies were interagency funds that were channeled, during the early 1990s, through Exxon Valdez restoration allotments, but individual agenciesincluding the NPSalso provided funding to state personnel as part of specific agency projects. 
A significant by-product of the federal government's decision to establish federally-sponsored regional advisory councils was the State of Alaska's decision to abandon its own, ten-year-old regional council system. As noted above, the McDowell decision had no immediate impact on the existing regional council system, and for more than two years after that decision various regional councils continued to meet. As in the late 1980s, however, some councils were more active than others; the Southeast and Interior councils, for example, continued to meet on a regular basis and submit annual reports, while the Western and Southwest councils, for all practical purposes, were dormant. By the fall of 1991, the publication of the board's draft EIS (which advocated a federally-sponsored regional advisory council system as its preferred alternative) forced ADF&G personnel to recognize that the new system, if implemented, would largely usurp the role that the state-sponsored councils had long undertaken. And perhaps in response to the EIS's recommendation, cuts were proposed in the Division of Boards' budget that promised to eliminate the regional councils. Members of the various councils, not surprisingly, fought both the proposed cuts and the draft EIS's preferred alternative, and as late as March 1992 members of the Interior Council were laying plans for future meetings. But the issuance of the Record of Decision in April apparently forced ADF&G officials to sever funding to the state-sponsored regional councils. All ceased operating in June 1992, at the end of the state's fiscal year. 
Last Updated: 14-Mar-2003