Alaska Subsistence
A National Park Service Management History
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Chapter 9:

A. The Federal Role in Subsistence Fisheries Management, 1980-1992

As Chapters 5 and 6 noted, the federal government during the 1980s played a marginal role in the management of the state's game populations for subsistence purposes. Federal officials, to be sure, played a key role during 1981 and early 1982 in order to ensure that the State of Alaska's subsistence management program followed the guidelines that had been outlined in ANILCA and the subsistence management regulations. Between May 1982 and the end of the decade, federal officials were called upon, in the period following various court decisions, to clarify ANILCA's specific intent to state officials. Except for those periods, NPS officials played some role in interpreting game management regulations on NPS-administered lands, and officials representing other federal land management agencies also played a minor role on lands managed by those agencies.

But the federal government in general, and the NPS in particular, played almost no role during the 1980s in the management of fish populations for subsistence purposes. As had been true since the 1958 Statehood Act, Alaska's navigable waters were managed by the state. And of specific interest to the NPS, both agency officials and park-area subsistence users appeared to be far more interested in the management of game than fish populations. Perhaps as a result, there are few known instances in which NPS officials brought specific fish management issues before the state Fisheries Board. The various subsistence resource commissions, moreover, were excluded from any advisory role related to fisheries; when the Gates of the Arctic SRC made a fisheries recommendation to the Interior Secretary in May 1987, an Interior Department official responded that "the Commission's legislative authority is for hunting and that fisheries are not within that area of authority." [1]

The Alaska Supreme Court's ruling in the McDowell case in December 1989 (see Chapter 7) portended a major change in the federal government's role in fish management. In striking down the state's 1986 subsistence law, the court made no distinction between subsistence hunting and subsistence fishing. In the wake of McDowell, moreover, federal officials recognized that they might well be assuming the management of both fish and game resources on federal lands. Given six months in order to prepare for an assumption of subsistence management, Interior and Agriculture Department officials were able to cobble together a ten-week, two-stage public process in which the nature of federal management would be described and discussed. By June 1, officials had completed work on a "proposed temporary rule," and by the end of June a "final temporary rule" had been compiled and published in the Federal Register. The final rule laid out the regulations under which the federal government managed subsistence resources on Alaska's public lands for the next two years.

One major decision that emerged from the spring 1990 public process was that the federal government proposed a narrow, limited role over fisheries management. Both the June 8 and the June 29 regulations specifically 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:

There were many comments on the exclusion of navigable waters from the definition of public [i.e., federal] lands. ... There was a great deal of concern that the exclusion of navigable waters eliminated the majority of subsistence fishing, critical to the well being of rural communities. ... The United States generally does not hold title to navigable waters and thus navigable waters generally are not included within the definition of public lands.

Because Alaska's navigable rivers contained virtually all of the habitat in which fish were typically harvested for subsistence purposes, the practical effect of deciding on the above language was that the federal government continued to have 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, these pages were to a large extent ignored; because fishing activity was almost entirely limited to the navigable waterways, federal managers made few decisions in the fisheries arena for the next several years. [2]

As noted in Chapter 7, the federal government undertook a major assessment of its subsistence responsibilities during the 1990-1992 period when it compiled a draft and final environmental impact statement on the subject. The process that culminated in the final EIS included a 45-day public comment period and numerous public meetings. After the EIS was completed, federal officials issued a Record of Decision on April 6, 1992. On May 29, the federal government published final regulations on how subsistence activities would be managed on public lands.

The final regulations made no changes in the federal government's stance toward the management of fisheries for subsistence purposes. As noted in the May 29 Federal Register,

Numerous comments were received concerning the definitions of Federal lands and public lands. All of these comments focused on the issue of jurisdiction over fisheries in navigable waters. Many felt that the definitions should include navigable waters to protect subsistence use and the subsistence priority. They strongly believe it was Congress' intent to protect subsistence rights as broadly as possible. Additionally, many individuals commented that most subsistence resources are found in navigable waters.

The scope of these regulations is limited by the definition of public lands, which is found in section 102 of ANILCA and which only involves lands, waters, and interests therein title to which is in the United States. Because the United States does not generally own title to the submerged lands beneath navigable waters in Alaska, the public lands definition in ANILCA and these regulations generally excludes navigable waters. Consequently, neither ANILCA nor these regulations apply generally to subsistence uses on navigable waters. [3]

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Last Updated: 14-Mar-2003