Alaska Subsistence
A National Park Service Management History
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Chapter 8:

M. The Federal Program (Wildlife Issues), 1993-present: Specific Issues

The overall federal subsistence management system has considered several actions that have been of particular interest to the National Park Service and to subsistence users within NPS units. They have included 1) proposed changes to regional council boundaries, 2) proposed changes in regional-council representation on the SRCs, 3) the selected lands issue, 4) issues concerning migratory bird hunting and egg gathering, and 5) the debate over the validity of individual customary and traditional use determinations. These issues will be discussed in the order presented.

1. Proposed Regional Council Boundary Changes. Three changes in regional council boundaries have been proposed in or near a national park or monument. One change, made during the public process that produced the federal government's EIS on subsistence management, involved the westernmost portion of the boundary line between Northwest Arctic Region (Region 8) and North Slope Region (Region 10). The final EIS, which was produced in February 1992, showed that the boundary line in this area for its proposed alternative (Alternative IV) was also the boundary line between Game Management Units 23 and 26A. In early April, however, the Record of Decision for the EIS showed that approximately 75 miles of this boundary had moved southward. Though the Record of Decision stated that "the Board recommends the regional boundaries follow the boundaries of the existing Game Management Units established by the Alaska Department of Fish and Game," the new regional council boundary was moved away from the GMU boundary. The new boundary, close to the northern tip of Cape Krusenstern National Monument, was nearly collinear with the boundary between the NANA Regional Corporation and the Arctic Slope Regional Corporation. It was moved at the apparent suggestion of Native corporation officials, who had recommended the new boundary as part of a regional-council alternative that the federal board had not adopted. [196]

Boundary-modification measures were also discussed in and near Gates of the Arctic National Park and Preserve. As noted above, regional council boundaries were collinear with ADF&G game management unit boundaries in many cases. The City of Anaktuvuk Pass, which lay astride a regional boundary, petitioned the Federal Subsistence Board, in late 1992 or early 1993, to have the boundary line moved south so that all incorporated land would be included in the North Slope Region. In April 1994, the Gates of the Arctic SRC seconded the city's petition. At a meeting in Anaktuvuk Pass, it recommended that the regional council boundary line be moved 10 to 30 miles south so that all of the village's "traditional subsistence use area" would fall within the North Slope Region. But the idea was never approved primarily because village residents were assured that the boundary's location would have no effect on the continuation of their traditional hunting patterns. The SRC also suggested that a smaller area, at the western end of the park and preserve, be moved from the Western Interior and Northwest Arctic regions into the North Slope Region; this was because Anaktuvuk Pass residents claimed that the area was part of the Nunamiuts' traditional trapping territory. This proposal was actively considered until the matter was discussed at a Northwest Arctic Regional Advisory Council meeting in Kotzebue in early 1995. Members of that regional council, however, openly worried that adopting such a resolution would set a precedent for many other communities that were located near regional council boundaries. The proposal, therefore, was voted down. Based on that opposition, the federal board failed to support the measure when it voted on the matter in mid-April. [197]

2. SRC Representation on the Regional Councils. Another regional council matter that concerned the various SRCs was the delegation of which regions would be able to appoint new SRC members. As was noted in Chapter 5, the NPS had originally decided back in 1982 which of the new, state-chartered regional advisory councils would be able to choose members for the new SRCs; and in November 1984, a memo from the agency's regional director, Roger Contor, had explained and justified that process. That distribution of regional representation had worked satisfactorily until the early 1990s. But in April 1992, the Federal Subsistence Board determined that the number of regional councils would increase from six to ten. No sooner had the Board made its decision than SRC members, in certain cases, began to complain that the new system did not provide adequate representation for their park's subsistence users.

Two SRCs lobbied for a change. At Denali National Park, two appointments had traditionally been made from the Interior Regional Council and one from the Southcentral Regional Council. But in May 1992, just a month after the Federal Subsistence Board's decision, the Denali SRC—recognizing that most subsistence users lived south of the park—asked that the former representation be reversed: that is, one should come from the Interior Regional Advisory Council and two from the Southcentral Regional Advisory Council. And eighteen months years later, the SRC asked for an additional change; in order to incorporate the interests of subsistence users who lived west of the park, it asked that one of the two Southcentral regional council appointments be shifted to the new Western Interior Regional Advisory Council. The commission's charter has not yet been changed to reflect that request. Despite that omission, areas west of the park are represented; members from both McGrath and Telida (the latter a resident zone community) have been on the commission since the mid-1980s. [198] The Gates of the Arctic SRC was also uncomfortable with the distribution of regional council seats. The commission's first charter, signed prior to its first (May 1984) meeting, stated that the SRC would have two Arctic Regional Council seats and one Interior Regional Council seat. But when the first charters were issued that reflected the shift from state to federal councils, representation shifted to two members from the Western Interior regional council and one from the Northwest Arctic regional council. Anaktuvuk Pass resident Raymond Paneak, who chaired the SRC, was quick to recognize that the new alignment excluded representation from villages north of the park (and including Anaktuvuk Pass as well). So at an October 1993 meeting, the SRC passed a resolution stating "that the Western Interior Regional Advisory Council (6) should defer the appointment of one seat of the Gates SRC to the Arctic [i.e., North Slope] Region (10) ... as many resident zone people live in region 10." The public, given the opportunity to comment on the proposed change, was "strongly in favor of shifting one of the Western [Interior] Region's SRC appointments so that each of the three regions has one appointment," and in January 1995 the SRC asked Secretary Babbitt to implement the change. Babbitt approved the change, and in 1996 the commission's charter was amended to reflect the new representation. [199]

3. The Selected Lands Issue. As noted in Chapter 1, the 1958 passage of the Alaska Statehood Act gave representatives of the new state the right to select up to 102,550,000 acres of "vacant, unappropriated and unreserved" federal lands for their own purposes. Based on that provision, state lands officials began selecting lands soon afterward, and before long the state had laid claim to tens of millions of acres of Alaskan real estate. Then, as noted in Chapter 4, Congress passed the Alaska Native Claims Settlement Act in December 1971. That law gave Alaska's Natives—through a series of new regional and village corporations—the right to select 40 million acres of Alaskan land; and Native groups lost no time in selecting millions of acres of their own. But for both state- and Native-selected lands, there was no guarantee that selecting lands guaranteed ownership, and even if ownership was the eventual result, millions of acres of lands often remained in the "selected" category, sometimes for ten or twenty years or more.

These "selected" lands, which were legally still owned by the federal government, were not a management issue during the decade that followed the passage of ANILCA; this was because the Alaska Department of Fish and Game management extended to all selected lands save those that were located within national parks and monuments. In the wake of the McDowell decision, the federal government took steps to assume subsistence management of Alaska's federal lands, and as part of the regulation-writing process that federal officials undertook in early 1990, a decision was made to not assume jurisdiction over the "selected" lands. Key to their decision was Section 102 of ANILCA, which stated that "public lands" specifically excluded "land selections of the State of Alaska which have been tentatively approved or validly selected under the Alaska Statehood Act" and "land selections of a Native Corporation made under the Alaska Native Claims Settlement Act which have not been conveyed to a Native Corporation." The 1990 temporary regulations, therefore, duly noted that "Lands validly selected by the State or Native corporations are therefore excluded from this public lands definition." The federal government's final subsistence regulations, which became effective on July 1, 1992, made no changes regarding this point. [200] Selected lands were to be managed by state, not federal, authorities.

Subsistence groups, at first, seemed unconcerned over the issue. But on April 12, 1994, the Northwest Arctic Subsistence Regional Advisory Council and a broad spectrum of Native groups submitted a "Petition for Rule-Making by the Secretaries of Interior and Agriculture that Selected But Not Conveyed Lands Are To Be Treated as Public Lands for the Purposes of the Subsistence Priority in Title VIII of ANILCA." The following February, a public comment period began when a Petition for Rulemaking was published in the Federal Register. The Alaska Legislature, furious at the move, quickly introduced a joint resolution "requesting the Congress to amend ANILCA to clarify that the term public lands means only federal land and water and that any extension of federal jurisdiction onto adjacent land and water is expressly prohibited." This resolution was introduced on March 6, and by May 12 it had passed both legislative chambers and was headed for the governor's desk. The Denali SRC, however, generally supported the Petition for Rulemaking. It agreed that "a limited expansion of federal jurisdiction ... could be beneficial," and it noted that many lands in the Denali National Park area that were "originally selected for their subsistence resources ... are closed to the federal subsistence program." [201]

In April 1996, the Interior and Agriculture departments took the process a step further. As part of a larger action pertaining to management of the subsistence fisheries, they expressed their intent to amend the definition of "public lands" to include selected lands by publishing an Advanced Notice of Proposed Rulemaking in the Federal Register. Specifically, the notice stated that

After reviewing the matter, the Secretaries have concluded as a matter of law that certain selected but not conveyed lands are governed by the terms of ANILCA Sec. 906(o)(2), 43 U.S.C. Sec. 1616(o)(2), which provides that "Until conveyed, all Federal lands within the boundaries of a Conservation System Unit ... shall be administered in accordance with the laws applicable to such unit." Accordingly, the Secretaries have determined that all Federal lands within the units specified in ANILCA Sec. 906(o)(2) will be administered as part of the unit to which they belong and will be subject to the administrative jurisdiction of the Federal Subsistence Board until conveyed from Federal ownership. The contemplated change relating to the definition of public lands contained in the preliminary regulatory text reflects the Secretaries' conclusions in this regard. [202]

Later that year, two SRCs made their opinions known on the matter, both as part of the process that resulted in the August 1997 issues paper. In the summer of 1996, the Denali SRC reiterated its interest in having the selected lands opened up to Title VIII subsistence uses. And the Gates of the Arctic SRC passed a resolution requesting that all people living in the park's resident zone communities, along with all 13.44 permit holders, be granted a positive customary and traditional use determination for all of the park's subsistence resources. (This action, among its other effects, granted local residents access to selected as well as public lands.) But Alaska's Congressional delegation, recognizing that the proposed rulemaking was an effective federal takeover of a large amount of state-owned acreage, opposed the idea. On September 13, 1996, an amendment was inserted into the Fiscal Year 1997 Interior Department appropriations bill (Sec. 318 of H.R. 3662) that would have made it impossible to apply federal regulations to selected lands. [203] But the amendment was removed not long afterward, and no further Congressional action took place on the matter. The NPS, in its final issues paper, stated that it "still believes that the federal subsistence program should extend to selected lands." [204]

After August 1997, the fate of the selected lands issue was dependent upon whether the federal government would assume management over navigable waters within federal conservation units. (See Chapter 9.) In December 1997, the Interior and Agriculture departments issued a Proposed Rule on the subject; as part of that proposed rule, they suggested that the following qualifier be added to the "public lands" definition: "until conveyed, all Federal lands within the boundaries of any unit of the National Park system ... shall be treated as public lands for the purposes of the regulations in this part pursuant to section 906(o)(2) of ANILCA." This qualifier was also included in the Final Rule that the Secretaries issued in January 1999. [205] The State of Alaska, during its 1999 legislative session, was unable to piece together a subsistence plan that conformed to federal guidelines, so the Secretaries' final rule was implemented on October 1. Since then, agency officials have managed subsistence on selected lands within the various NPS units much as they have federally-owned lands.

4. Migratory Bird Hunting and Gull Egg Collecting. Residents in various parts of the Alaskan bush had long hunted migratory birds and collected migratory bird eggs as part of their traditional harvesting patterns. That activity, however, had been illegal ever since the Congressional passage, in July 1918, of the Migratory Bird Treaty Act. (This act, signed into law by President Woodrow Wilson, put into effect the Convention Between the United States and Great Britain for the Protection of Migratory Birds which had been ratified two years earlier. Great Britain had acted on Canada's behalf.) The 1918 law made it unlawful "to pursue, hunt, take, capture [or] kill ... any migratory bird, any part, nest, or eggs of any such bird" that migrated between the United States and Canada. The treaty gave the Interior Secretary the authority to permit specific harvesting of various migratory bird species, but by barring all migratory bird hunting between March 10 and September 1, it effectively prevented Alaskan residents from legally conducting traditional migratory bird harvests. The United States broadened the provisions of the Migratory Bird Treaty Act in February 1936 when it signed a similar treaty with the United Mexican States. [206]

Even prior to statehood, the Fish and Wildlife Service—which administered and enforced the act—was well aware of the conflict between the law and traditional hunting patterns. And in a few well-publicized cases, rural Alaska residents strongly protested agency enforcement measures; in 1961, for example, the arrest of state representative John Nusunginya (D-Point Barrow) for hunting ducks out of season caused 138 other area residents to harvest ducks and present themselves for arrest to federal game wardens. (A year later, all charges were dropped.) [207] Based on such an incident, the Fish and Wildlife Service was low-key in its enforcement efforts. As the agency later noted,

The Service has recognized for many years that residents of certain rural areas in Alaska depend on waterfowl and some other migratory birds as customary and traditional sources of food, primarily in spring and early summer. Because of this long established dependence, prohibitions on taking during the closed season generally have not been strictly enforced provided that the birds were not taken in a nonwasteful manner and were used for food. [208]

Officially, however, the prohibition remained. Negotiators from both the U.S. and Canada, hoping to solve the problem, signed an agreement on January 30, 1979 that would have allowed subsistence hunting of waterfowl outside of the normal hunting season. The treaty, however, did not take effect because the U.S. Senate never ratified it. A year later, Congress passed ANILCA with a subsistence provision. But Congress, aware of the stalemate in the international negotiations, was careful to note that "Nothing in [Title VIII] shall be construed as modifying or repealing the provisions of any Federal law governing the conservation or protection of fish and wildlife, including ... the Migratory Bird Treaty Act (40 Stat. 755; 16 U.S.C. 703-711)." [209] ANILCA, as stated in Chapter 4, brought 13 new or expanded units into the NPS system. Inasmuch as migratory bird harvesting had traditionally taken place in several of those units—including Aniakchak, Gates of the Arctic, Wrangell-St. Elias and the various Northwest Alaska Area parks—NPS officials soon recognized that the migratory bird issue was an agency concern.

John Nusunginya, from Barrow, represented the North Slope in the first two Alaska Legislatures to convene after statehood (1959-1963). In May 1961, he struck a blow for Inupiat hunting rights when he instigated the famous Barrow "duck-in." ASL/PCA 01-3422

During the years immediately following ANILCA's passage, Fish and Wildlife Service staff began to recognize that drastic declines were taking place in various Yukon-Kuskokwim Delta bird populations. Four species were particularly affected: cackling Canada geese, emperor geese, Pacific white-fronted geese, and Pacific brant. The cause of that decline was contested; agency managers felt that spring harvesting in the delta was the primary reason, while local residents claimed that their harvest rates had not increased. Residents speculated, instead, that either overhunting or habitat loss in the birds' wintertime home (in California and Mexico) may have caused the decline. To ensure the health of those populations, the F&WS worked with the ADF&G and local residents on a goose management plan. That plan was finalized in 1984 and renewed in 1985, but a suit challenging the legality of those plans was filed in the Alaska District Court. The Court's ruling, issued in January 1986, stated that the 1925 Alaska Game Law—and not the 1918 Migratory Bird Treaty Act—governed subsistence hunting for migratory birds in Alaska. On the heels of that decision, the F&WS began a rulemaking process to permit and regulate subsistence hunting for migratory birds throughout Alaska. The agency planned public hearings and hoped to issue a final rule in time for the spring 1988 migratory bird harvest. That process, however, was halted by an October 9, 1987 ruling from the Ninth Circuit Court of Appeals, which reversed the District Court's ruling. The Appeals Court held that any regulations for subsistence hunting of migratory birds must be in accordance with the 1916 U.S.-Canada treaty and the 1918 act. The decision did, however, give the F&WS some leeway in enforcing the measure, and the agency responded by concentrating its enforcement efforts on aircraft access to nesting areas, egging, and taking for the four above-named bird species. [210]

Following that ruling, Fish and Wildlife Service officials decided to push for a new cooperative goose management plan, and it also issued a proposed policy on how it would enforce the MBTA's closed-season policy. In addition, it asked the U.S. State Department to begin negotiations on legalizing the subsistence harvest during the closed season by proposing amendments to both the U.S.-Canada and U.S.-Mexico treaties. By 1993, the Service had either been assured (or was hoping) that the two countries were close to an agreement, and on that basis it wrote a draft environmental assessment regarding the impacts of legalizing a expanded hunting season on Alaska's migratory bird populations. That study, announced in mid-August 1993, recommended several action alternatives; the preferred alternative called for modified Convention that allowed a regulated harvest during a portion, but not all of, the currently closed period. The public was given until mid-October to comment on the draft EA. Many of those who responded requested that the Service include additional materials on such subjects as the demographics and harvest situation in Alaska. Given those requests, the Service issued a second draft in early March 1994, and two months later it issued its final environmental assessment, entitled Regulation of Migratory Bird Subsistence Hunting in Alaska. The Service's acting director approved the final EA on July 1, 1994. [211]

Before long, the State Department's negotiations began to bear fruit. On December 14, 1995, Interior Secretary Bruce Babbitt and Canadian Deputy Prime Minister Sheila Copps signed a protocol amending the U.S.-Canada treaty, and a similar protocol was signed with Mexico that same year. In October and November 1997, the U.S. Senate ratified the amendments to migratory-bird treaties with Canada and Mexico, respectively, and in the fall of 1999 the amended treaties with both countries were formally implemented. F&WS officials, at that time, promised rural Alaskans that specific hunting regulations reflecting the amended treaties would be implemented by 2001; until that time, residents would be bound to existing policy, which allowed subsistence harvests so long as they were compatible with sustainable conservation. The process, however, has proven to be more complex than anticipated. As a result, no regulations are expected prior to the spring of 2003. [212]

NPS officials, and those who harvested subsistence resources in NPS units, were periodically updated on the status of these negotiations. The Wrangell-St. Elias SRC, which was the active SRC from a park unit most involved with migratory bird issues, sent an April 1994 letter to Interior Secretary Bruce Babbitt that made two requests: first, that regulations be adopted which provided for a fall subsistence harvest of waterfowl consistent with the State's season and bag limits, and second, that amendments to the Migratory Bird Treaty Act were needed to protect the subsistence harvest of bird eggs, especially sea gull and tern eggs. (The SRC, in making these requests, apparently knew that the Interior Secretary, which carried out the provisions of the Migratory Bird Treaty Act, was "authorized and directed ... to determine when ... it is compatible with the terms of the conventions to allow hunting, taking, capture, [and] killing" of the various species that were subject to the Act, and the SRC also apparently knew that the Secretary had authorized a longer-season migratory bird hunt in various parts of western Alaska.) The Interior Department, in its response, referred both to the ongoing negotiations and the F&WS's environmental assessment; pending further negotiations, however, the Department refused to sanction any activities that conflicted with Migratory Bird Treaty Act provisions. The Department told the SRC that its request for a fall waterfowl subsistence harvest was "in conflict with the existing Federal subsistence management regulations," but in order to initiate a new regulations process, it indicated a willingness to "consider this matter in the future" if the SRC resubmitted its request in the form of a hunting plan recommendation. [213] At its next meeting (in February 1996), the Wrangell-St. Elias SRC did just that; it passed a two-part recommendation and forwarded it on to various local and regional advisory committees, and in December 1996 it sent its recommendation to the Interior Secretary. [214]

The Interior Secretary, unsure of his legal position, spent almost two years mulling over the matter. But in June 1998, the Department's Office of the Solicitor dashed cold water on the SRC's proposal. First, it concluded that the Federal Subsistence Board had no management authority over migratory birds; thus the board was powerless to allow a fall waterfowl hunt. A second, more sweeping conclusion was that not even the long-expected Migratory Bird Treaty Act amendments would legalize waterfowl hunting or egg collecting in an NPS unit. Wrangell-St. Elias Superintendent Jon Jarvis told his SRC that only Congress could legally sanction these activities. He stated that

there is a body of congressional law that says no park value can be derogated [i.e., diminished in value] without specific direction from Congress. The Secretary does not have the authority to allow [a] migratory bird hunt in a National Park Unit because Congress never gave that authority to the Secretary in Title VIII. Even if you modified the Migratory Bird Treaty you still could not hunt, because Congress has said specifically [that] the only kind of hunting you can do in a National Park in Alaska is that which falls in the provisions of Title VIII. [215]

In a subsequent letter to the SRC chairs, an NPS official further clarified the matter and suggested that the legal harvesting of waterfowl and their eggs, in national preserves as well as in the parks and monuments, might require Congressional action. [216]

Not long after NPS officials told the Wrangell-St. Elias SRC of the Interior Solicitor's opinion, the Gates of the Arctic SRC protested the action. Citing Section 802 of ANILCA, which stated that it was "the policy of Congress ... to provide the opportunity for rural residents engaged in a subsistence way to life to do so," SRC chairperson Pollock Simon, Sr. stated that because the

harvest of waterfowl does not violate any recognized conservation principles or modify or repeal any provision of the Migratory Bird Treaty Act, their use should continue on Park lands. We question the solicitor's opinion, and would like to see the findings delineated. It would be better to resolve this issue with the NPS before entertaining an act of Congress with ANILCA changes. [217]

Taking a cue from both the Interior Department Solicitor as well as the Gates of the Arctic chair, NPS officials began working with their counterparts at the Fish and Wildlife Service to resolve the problem without Congressional intervention. (Fish and Wildlife Service officials had a more relaxed interpretation of the treaties, laws, and regulations; as F&WS employee Mimi Hogan noted, "the subsistence hunters in the Wrangell-St. Elias National Park Subsistence Resource area can legally take waterfowl, snipe, and cranes consistent with federal and state hunting regulations. The decision on whether hunters are eligible to hunt migratory birds within Wrangell-St. Elias Park and Preserve is a National Park Service decision based on their interpretation of Title VIII....") Before long, NPS officials began to rethink its former position, in part because the definition of "subsistence uses" in Sec. 803 of ANILCA, which included "the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption," seemed broad enough to include migratory birds. This issue, however, was not resolved quickly. In October 1999, NPS officials told the SRC chairs that they were "hopeful for a positive resolution to the issue." Four months later, however, the agency had "still not been able to complete the necessary consultation" with Interior Department Solicitors in Washington, D.C. [218]

Finally, on May 16, 2000, the NPS responded to the two hunting plan recommendations that the Wrangell-St. Elias SRC had made in December 1996. Robert Barbee, speaking on behalf of the Interior Department (due to its newly-implemented delegation authority), concluded that

there is nothing in ANILCA that specifically prohibits the taking of migratory birds for subsistence purposes within national parks or national park monuments in Alaska where subsistence users are otherwise allowed. ... The traditional harvest of migratory birds may be permitted in parks and monuments, as long as such harvest is consistent with the Migratory Bird Treaty Act. ... Earlier analysis of the impact of [ANILCA sections 815 and 816] led us to believe that the taking of migratory birds could not be permitted in national parks and monuments, because such use could not be considered a subsistence taking as permitted in ANILCA. This is not the case.

The NPS thus approved of the first of the SRC's two recommendations, and it permitted the requested fall waterfowl harvest as long as it was consistent with MBTA regulations. It stopped short, however, of approving the other recommendation, which advocated a general exception to the spring and summer prohibition against harvesting migratory birds and their eggs for subsistence purposes. This recommendation, the NPS concluded, could not be approved until the Fish and Wildlife Service had approved regulations in accordance with the amendments to the Canadian and Mexican migratory bird treaties, which were finalized in the fall of 1999. As noted above, these regulations had not been adopted even in February 2001; as a result, NPS officials told the SRC chairs that the NPS was powerless to relax this prohibition until the F&WS's regulations process had been finalized. [219]

5. The Individual C&T Issue. A final area of interest revolved around the following question: should it be legal, under the federal management program, for individuals who had a customary and traditional pattern of subsistence use to continue that use if they lived in an area where the Federal Subsistence Board had not established a positive C&T determination? Relatively few Alaskans, to be sure, fit both of these criteria, but because neither ANILCA nor the subsistence regulations directly addressed this subject, the resolution of the so-called "individual C&T" issue has been a complex, drawn-out process.

The precursors of this issue reached back to the mid-1980s, several years before the federal government assumed jurisdiction over the subsistence resources on Alaska's federal lands. As noted in Chapters 5 and 6, the Alaska's Board of Fisheries and Board of Game made its first rural determinations in April 1982. Then, in the wake of the Madison case, the joint board made a new series of rulings regarding rural residency between May 1986 and March 1987 that covered the entire state. But some communities did not clearly fit either a rural or non-rural definition, so between 1987 and 1989 the joint boards, on a case-by-case basis, either moved—or refused to move—several areas from a non-rural to a rural classification.

One area that fell into a regulatory gray area was the 84-mile stretch of the Parks Highway between mileposts 216 and 300. (Milepost 216, six miles north of Cantwell, is the boundary line between Game Management Units 13E and 20A; while Milepost 300, four miles south of Nenana, is near the boundary between Game Management Units 20A and 20B.) Many residents along this highway corridor live in the small communities of Healy, Anderson/Clear, and Denali Park/McKinley Village, while others carry on a more dispersed lifestyle. Many of the residents of this road corridor have long harvested subsistence resources. But when Interior Department personnel began compiling regulations on how the newly-expanded Denali National Park should be managed, they decided that none of the communities in this corridor should be designated as resident zone communities. The June 1981 regulations listed Cantwell as the only resident zone community along the Parks Highway. This did not mean, of course, that subsistence harvesting in Denali National Park was limited to residents of designated communities. It did, however, mean that residents who lived outside of these designated communities needed a so-called 13.44 permit in order to hunt; to obtain a 13.44 permit, moreover, required that prospective permittees be required to satisfy various customary and traditional (C&T) criteria.

When the Alaska joint boards made their initial rural determination rulings, in April 1982, this road corridor was judged to be rural. That ruling remained until March 1987, when—perhaps as a result of growth taking place along the eastern border of Denali National Park—the state board reversed its earlier decision and declared the area to be non-rural. On the basis of that decision, the NPS revoked all 13.44 permits for residents along the Parks Highway corridor. In reaction to the state board's decision, local fish and game advisory committees filed a petition for a change back to rural status. At a joint board meeting, held in Anchorage in March 1988, that petition was granted. But in an ironic twist, the Alaska Game Board (which met in a separate session a few days later) "examined the question of whether people domiciled in this area had customary and traditional uses of moose and caribou in Units 20(A) and 20(C). Based on their review, the board was unable to conclude that the people in this area met the criteria." The state "assumed that [the joint board's rural determination] would allow the Park Service to reissue the subsistence permits it canceled last year." The NPS, however, interpreted the situation differently, and based on the state's negative C&T determination, NPS officials could not reissue any 13.44 permits to residents who lived along the Parks Highway corridor. The Board of Game was unable to re-address the situation for the next several years, much to the chagrin of local residents. [220]

When the Federal Subsistence Board began managing subsistence resources on federal lands in July 1990, it adopted all of the state's decisions regarding rural or nonrural status until it had the opportunity to undertake its own rulings process. That process, as noted in Chapter 7, was conducted between September and December 1990. It concluded with the federal board recommending that the entire 84-mile road corridor be declared rural. But this decision, while laudable, was a reaffirmation of the status quo. For reasons outlined above, it had little direct impact on the ability of local residents to obtain 13.44 permits.

In December 1990, six residents who lived along the eastern boundary of Denali National Park (between mileposts 216 and 239) wrote a letter to the Federal Subsistence Board. They outlined the joint game board's voting history as it pertained to their area and asked why they had not received subsistence permits for hunting within the park. The Denali SRC, which supported the residents' efforts, sent its own letter to the federal board in March 1991. Because the SRC's letter dealt specifically with Denali National Park it was forwarded to the NPS, and in September 1991 the agency's regional director, John M. Morehead, responded. He noted that

When the federal government implemented its interim subsistence regulations (on July 1, 1990), the state Board of Game's determinations for C&T uses were adopted. The current determinations preclude Parks Highway residents between mileposts 216 and 239 from subsistence use of caribou and moose within Game Management Unit 20C, which includes portions of Denali National Park. Accordingly, Parks Highway residents are not qualified to subsistence hunt within Denali National Park for those animals. However, the superintendent is authorized to issue permits to Parks Highway residents who meet NPS eligibility criteria for other subsistence uses within Denali National Park.

Mitch Demientieff
Nenana resident Mitch Demientieff, during the mid-1980s, worked briefly as a regional council coordinator for the Alaska Department of Fish and Game. Since 1995, he has served as the Federal Subsistence Board chair. ADN

Morehead assured those affected, however, that the federal board would "adopt a process for making C&T determinations prior to July 1, 1992" and that "once a process is adopted, the Board will review existing determinations for consistency with that process." All the residents had to do, therefore, was to exercise some restraint; in the not-too-distant future, they would be able to "submit written comments on C&T determinations" in hopes of changing caribou and moose subsistence regulations along the highway corridor. [221]

Local residents and SRC members, hoping for an expedited review of their case, were chagrined to hear in May 1992 that their request for a C&T determination review was ranked poorly and that "it may be several years before it comes before the board." SRC coordinator Hollis Twitchell, in response, recommended that the request be changed from the "new rural community category" to the more highly-ranked "appeal category" based on the negative C&T determination that the Alaska Board of Game had given previously. The newly-minted Eastern Interior Regional Advisory Council (EIRAC) was also supportive; it noted in the fall of 1993 that the Council's "highest priority C&T issue" was along the Parks Highway, and it voted unanimously for the Federal Subsistence Board to act "as soon as possible." But the board made no immediate moves because it was buried under an avalanche of other C&T requests from throughout the state. [222] NPS officials, doing what they could in support of local residents, decided to re-issue 13.44 permits to residents in the McKinley Village area residents for both 1994 and 1995. But their gesture had little practical effect, because only the FSB could act on the negative C&T determination. [223]

By early 1995, the FSB had still not ruled on whether the Parks Highway corridor satisfied the federal government's C&T criteria, and no action appeared likely in the foreseeable future. So the Denali SRC suggested a new angle: obtaining C&T determinations for individual permit holders—all of whom lived between mileposts 216 and 239—rather than for the entire road corridor. (The May 1992 final regulations appeared to allow for individual C&T determinations for those harvesting subsistence resources on NPS land because they stated that "The legislative history of ANILCA clearly indicates that, with the exception of lands managed by the National Park Service, customary and traditional uses should be evaluated on a community or area basis, rather than an individual basis.") The SRC wrote to Acting Superintendent Steve Martin and asked him "to be sure the original [13.44] permittees know about possible actions they could take to expedite the appeal process or how to apply for an individual exception to the determination." Shortly afterward, the SRC wrote the Federal Subsistence Board. It asked, once again, that it reexamine its existing C&T regulations for the area, but "If the area does not meet the customary and traditional criteria for subsistence use of moose and caribou, we believe the Federal Subsistence Board should grant a waiver to the individuals residing in the area who have subsistence use permits issued by the National Park Service." [224]

The SRC's coordinator, Hollis Twitchell, responded to the interests of his commission by submitting a federal board proposal in the late summer of 1995. Proposal 19 requested a change in the C&T determination for moose in Game Management Unit 13E, and for caribou in GMUs 20A and 20C, for people living along the Parks Highway between mileposts 216 and 239. During their subsequent review, the Eastern Interior and Southcentral regional councils generally supported the proposal, but at EIRAC's request, Healy and the park headquarters area were excluded from the proposal. In late April and early May 1996, the board met and approved the modified proposal. NPS officials, upon hearing the news, told McKinley Village subsistence permit holders that they were now free, for the first time since the spring of 1987, to harvest moose and caribou in the newly-expanded portions of Denali National Park. [225]

The board's favorable action negated the need for any McKinley Village residents to seek an individual C&T determination. But as noted above, C&T determinations for Healy residents did not change, and one of the major area subsistence users—Dan O'Connor, the son of longtime advocate Pat O'Connor—lived in Healy, which had been excluded from the area "freed up" in the recently-approved proposal. The federal regulations related to individual C&T determinations seemed tailor-made for O'Connor; he lived in a community without a positive C&T determination for moose, but because he had lived there since 1981, he had a well-established (and well-known) pattern of harvesting moose for subsistence purposes. Thus it was not particularly surprising that O'Connor, in mid-March 1997, wrote the federal board and requested an individual exception to the existing C&T determination for moose in Game Management Units 20C and 13E. To expedite matters, he requested a ruling prior to the fall moose season, and to buttress his case, the Denali SRC followed up with a supporting letter. But because the letter was written just six weeks before the federal board's annual meeting, the board did not immediately respond to his request. The NPS's federal board staff committee representative responded to the rejection by pursuing a new vote prior to the fall moose season, but the board informed him that C&T determinations were made only once per year, at the spring meeting. [226]

Later that summer, Dan O'Connor continued his quest for access to the park's subsistence resources by submitting Proposal 38—which was simply a more formal version of his March 1997 request. But O'Connor was not the only person requesting an individual C&T determination that year. A similar proposal was active at Wrangell-St. Elias National Park and Preserve, where Frank Entsminger had submitted two proposals requesting a positive C&T determination—Proposal 25 for Dall sheep and Proposal 29 for goat—for areas in Game Management Unit 11 located south of the Sanford River. Entsminger submitted his proposal on behalf of himself and six other individuals. Based on those proposals, NPS personnel conducted C&T analyses for all eight of the affected parties. In the process of compiling those reports, four of the seven families that had initially supported proposals 25 and 29 indicated that they were no longer interested in pursuing an individual C&T determination for either sheep or goat in a portion of GMU 11. [227]

Peggy Fox and Tom Boyd
Tom Boyd (right) has served since 1995 as the chief of the U.S. Fish and Wildlife Service's Office of Subsistence Management (OSM). Peggy Fox (left) also has extensive experience working on subsistence issues, with both the Bureau of Land Management and OSM. USF&WS (OSM)

All three of these proposals, however, had to be delayed. In January 1998, the Wrangell-St. Elias superintendent contacted the various parties interested in proposals 25 and 29 that their federal board proposal would need to be deferred because of a severe and unanticipated staff shortage. Then, two months later, the NPS informed the federal board that the agency had contacted the Interior Department's Office of the Solicitor and was requesting an opinion on the legality of individual C&T determinations. On the basis of that advice, the board decided to defer action on all three of the individual C&T proposals at its May 1998 meeting. The issue was held in abeyance until the Solicitor's Office issued its opinion. Meanwhile, an identical series of proposals was submitted to the board in the late summer of 1998; the Wrangell-St. Elias proposals were numbers 9 and 11, while the Denali proposal was number 25. [228]

It was widely anticipated that an opinion would be forthcoming from the Solicitor's Office in the spring of 1999, and in late March, Regional Solicitor Lauri J. Adams issued a review on the subject. She noted that federal board chair Mitch Demientieff had asked her to judge the validity of the statement "For areas managed by the national Park Service, where subsistence uses are allowed, the [C&T] determinations may be made on an individual basis," which was found in two different sections of the Code of Federal Regulations: 36 CFR § 242.16(a) and 50 CFR § 100.16(a). In response to that task, Adams noted that

Your question is whether there is sufficient legal authority under ANILCA to make C&T determinations for NPS-administered lands on an individual basis as this regulation allows. The short answer to your question is yes. The regulation is valid; and individual C&T determinations may be made in the Board's discretion, pursuant to Title VIII of [ANILCA] ... for lands administered by the National Park Service. ... [W]e believe the approach to C&T adopted by both the [June 1990] Temporary Regulations and the [May 1992] Final Rule reflects a reasonable administrative interpretation of ANILCA and is legally supportable.

Based on the Regional Solicitor's decision, the Federal Subsistence Board at its May 1999 meeting supported the individual C&T concept. The board unanimously approved Dan O'Connor's request for a C&T determination to hunt moose for subsistence purposes in GMUs 13E and 20C. Both of Frank Entsminger's proposals (regarding sheep and goat hunting in GMU 11) were also approved, but only two of the three individuals who still sought a positive C&T determination were awarded it. Shortly after the board made its initial decisions, the NPS established a policy by which future individual C&T determinations would be made. Since then, however, no new C&T proposals of this nature have been submitted to the federal board. [229]

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Last Updated: 14-Mar-2003