Alaska Subsistence: A NPS Management History (Chapter 4)

Chapter 4:
THE ALASKA LANDS QUESTION, 1971-1980 (continued)

On November 2, 1976, Jimmy Carter defeated incumbent Gerald Ford in the U.S. presidential election. Throughout the Ford administration, Congress had shown little inclination to face the Alaska lands issue head-on. But with Carter's election, both the presidency and the Congress were controlled by Democrats, and with just two years remaining in the timetable set by ANCSA, Congress tried to solve Alaska's long-simmering national interest lands issue. On January 4, House Interior Committee chair Morris K. Udall submitted H.R. 39, a conservation-oriented Alaska lands bill; shortly afterward, bills reflecting numerous other philosophical positions were introduced in either the House or Senate. [96]

When the 95th Congress opened, much of the information available on the national interest land issue was contained in a series of environmental statements and master plans that the executive branch (i.e., the NPS and other agencies in either the Interior or Agriculture departments) had prepared several years previously. Those documents contained finely distilled recommendations regarding subsistence and a host of other lands issues. Lawmakers, however, were by no means obligated to follow the agencies' lead; and predictably, Congressional leaders showed a remarkable independence regarding how subsistence and other land issues should be legislated.

Two of the major Congressional supporters of Alaska subsistence rights were Morris Udall (left), head of the House Interior and Insular Affairs Committee, and John Seiberling, head of the House Subcommittee on General Oversight and Alaska Lands. ADN

Because of the lack of previous Congressional activity pertaining to this issue, the Udall bill was widely recognized as a work in progress and, as the Arizona Congressman himself said, the bill was "intended to establish a framework for legislative consideration on this important matter." It proposed more than 64,000,000 acres of national parklands, and the various park acreages in the Udall bill were significantly larger than those noted in the environmental documents that Interior Department staff had prepared several years earlier.

Udall prefaced his bill with a statement that emphasized the cultural aspects of the subsistence issue. In part, it reads as follows:

Several years later, at the conclusion of the Alaska lands battle, Udall again addressed the vision that he had hoped to see manifested in this bill. He noted that he, Rep. John Seiberling (D-Ohio), and Rep. Vonno L. Gudger, Jr. (D-N.C.), among others, had made a commitment to Alaska's Native people at the beginning of the 95th Congress. Specifically, they

The bill itself, a scant 29 pages long, made only a brief statement about subsistence. It made no specific suggestions regarding which proposed parks should allow subsistence. It did, however, imply that only a portion of each proposed park should be open to subsistence uses. Section 701(a) of the bill noted that

Section 101(a)(1) applied this concept more specifically to the 13.6 million-acre Gates of the Arctic park proposal by noting that no more than 2.5 million acres of the park could be included in a subsistence management zone. In addition to the zone concept, H.R. 39 discussed several additional subsistence ideas. It noted, for instance, that those eligible for subsistence activities in the proposed parks should be "people who exercise and who continue to exercise customary, consistent, and traditional use of subsistence resources in the national interest lands established by this Act, as of December 18, 1971, and their direct descendents." The bill clearly stated that subsistence was a priority use—Section 101(b) noted that "Subsistence uses of national interest lands will in all cases be given preference over any competing consumptive use in a subsistence management zone"—and based on that priority, it laid out a process for allotting subsistence resources in times of scarcity. At the same time, however, the bill's sponsors exhibited a certain wariness about the effect of subsistence uses on park resources, because one of the bill's provisions called for periodic reports to the Congress "on the effect of all hunting and fishing, including subsistence uses, on the flora and fauna within the lands included in this Act." A final concept it introduced was that of locally generated input into the regulatory process. The bill proposed the establishment of a series of ten-member "regulatory subsistence boards," one for each national interest lands unit. The purpose of each board was to "advise the Secretary or his designee on matters of concern to subsistence permittees" and to review and approve the various subsistence permit applications for that unit. [99]

Another major feature of Udall's bill was its sanction of the national preserve concept as applied to Alaska parklands. As noted above, the nation's first two national preserves (in Texas and Florida) had been signed into law in October 1974. In its various final environmental statements for the proposed Alaska park units, published just two or three months later, the administration had proposed no preserves. Udall's bill, however, proposed such a classification for Noatak, Yukon Charley Rivers, and the Chisana area. (The latter area was just north of Wrangell-St. Elias National Park.) H.R. 39 narrowly defined the preserve concept, as noted below:

The preserve concept, a necessary political compromise with sport hunting interests [101], would remain a staple of most future Congressional proposals pertaining to the Alaska lands issue.

Many Alaskans, and a broad spectrum of Outside development groups, found the Udall bill repugnant. To counter its recommendations, Alaska Senator Ted Stevens introduced S. 1787 on June 30. This bill, a product of discussions between the Alaska Congressional delegation, Governor Jay Hammond, and a lobbying group called the Citizens for Management of Alaska Lands, proposed setting aside some 75,000,000 acres in various management systems. Regarding subsistence recommendations, Stevens's bill was even more brief than Udall's. In a cursory overview of "Wildlife Management" (Section 4304), the bill asserted the primacy of state regulation, and it reiterated that in times of scarcity "subsistence purposes shall be given

To gauge public opinion regarding the evolving bills and to gather additional information, Rep. John Seiberling (D-Ohio), chair of the newly formed Subcommittee on General Oversight and Alaska Lands, sponsored a series of field hearings, both in Alaska and in five Outside locations, between April and September 1977. More than 2,300 people testified at those hearings; perhaps 1,000 of these were from Alaska, and included among them were a number of rural subsistence users. Supporters of a strong H.R. 39, as expected, overwhelmed opponents in the various Lower 48 hearings, but many were surprised to find that the Alaskans who testified were nearly evenly split on the issue. [103]

At one of the field hearings—held in Fairbanks in August 1977—Governor Hammond weighed in with the State of Alaska's position on subsistence. His four-page statement was of a general nature and elaborated on four basic tenets: 1) "subsistence habitat should be rationally protected on all lands, not just D-2 lands," 2) "the management must be unified, professional, not splintered and politicized," 3) "subsistence must be given priority on national interest lands, as it has been given priority in State law and policy on all lands of the State," and 4) "local people are demanding greater say in regulation of fish and game harvests in their areas and to the extent they can be accommodated ... this say should be provided." Hammond added that he hoped "to propose State legislation which could far better and less traumatically address the subsistence issue than alternatives before you." (His words proved prophetic; as noted in Section F above, the state's first subsistence law was enacted less than a year later.) But perhaps because there was no such law in 1977, Hammond hedged on the preference issue. He freely admitted to "the perception that state regulation has either favored urban hunters too much, or not favored rural hunters enough when the difficult allocation decisions were made," but he also testified that "a thorough review of recent fish and wildlife regulations [would] show scores of cases where the local rural user has been favored in regulation." He concluded by stating, "I would hope this Congress establishes the priority of subsistence uses where there is a conflict on national interest lands." [104]

The next major step in the legislative process took place on September 15, when Interior Secretary Cecil Andrus weighed in with the Department's recommendations in testimony before the House Interior and Insular Affairs Committee. Regarding subsistence, he reiterated Udall's proposal for subsistence management zones; these would be designated by the Interior Secretary and would be closed by that official, if necessary, should resources be in jeopardy. The state, however, would be responsible for managing, administering, and enforcing subsistence regulations. A strict non-racial subsistence policy would be adopted; to help determine eligible subsistence users, the state would be authorized to establish various local advisory committees. [105]

During the weeks that followed Andrus's testimony, staff working for the House Subcommittee on General Oversight and Alaska Lands substantially modified the original bill to incorporate both Interior Department testimony and the hundreds of comments that the public had contributed during the summer's field hearings. By October 12, the bill's Committee Print No. 1 was three times as long as the bill had been in January, and during the two weeks that followed, additional mark-up sessions lengthened the bill yet again. What emerged on October 28 was a 187-page version (called Committee Print No. 2) that bore little resemblance to Udall's initial bill. [106]

The two committee prints issued in October offered starkly contrasting subsistence provisions. The language of the January bill, which was unspecific yet vaguely limiting, was reflected in the October 12 committee print recommendations. The October 12 version of H.R. 39 authorized subsistence activities in just three proposed park units: Kobuk Valley, Cape Krusenstern, and Bering Land Bridge. In those units, subsistence was one of several park purposes, but in each case, subsistence was the last purpose listed. The following language was used in each case: "... and, in a manner consistent with the foregoing [i.e., the other park purposes], to provide opportunities for continued subsistence uses." But the October 28 committee print was dramatically different; it stated that the "continued viability of subsistence resources for continued subsistence users" [107] was a purpose of almost all of the proposed park units. With the odd exception of Aniakchak, subsistence was a sanctioned activity in every one of the newly-proposed park units, and the bill also provided the sanctioning of subsistence in Glacier Bay and Katmai additions as well as Mount McKinley's proposed north addition. [108]

The subsistence provisions of H.R. 39 became increasingly detailed as a result of the October staff-committee input. In the October 12 committee print, subsistence was just one of several topics in the bill's "General Administrative Provisions" title. But by October 28, subsistence had emerged as a standalone theme—Title VII—which contained twenty sections and occupied twenty-two pages of double-spaced text. Title VII in the October 28 committee print, for the first time, gave a detailed version of a proposed advisory committee structure that included an "Alaska Subsistence Management Council" as well as a series of regional and local subsistence boards. In addition, this version of H.R. 39 introduced the following concepts, all of which later became law: the idea of cooperative agreements between the Secretary and other organizations; the idea of federal enforcement, if state authorities failed to implement a subsistence priority; the ability of the Secretary to issue subsistence regulations; and the role of subsistence in the formulation of land use decisions. The bill's regional and local subsistence boards, however, differed from those in the present Alaska Lands Act in that they were based on regional and village Native corporation boundaries. This bill also differed from existing law in that it continued to promote the subsistence zone idea, as Udall's original bill had done. [109]

A key point under discussion in the subcommittee's negotiations was whether the federal or state government would manage the national interest lands' fish and game resources. Rep. Seiberling, who had attended many public hearings about H.R. 39 the previous summer, gave the following summary on the subject:

"Yesterday...a consensus title on subsistence was agreed to. I consider this to be one of the miracles of the day."

Rep. John Seiberling

Seiberling later went on to say that under the subcommittee's bill, "Alaska would be the only state in the Union with statutory recognition of its role in regulating hunting and fishing on Federal lands." [111] This system—management by the state, with Federal monitoring and oversight—characterized each of the bills that followed, although the specific role of the state and federal governments changed as Alaska lands legislation was debated and refined.

Little legislative action took place on either H.R. 39 or on other Alaska lands bills until January 1978, when the House Subcommittee on General Oversight and Alaska Lands began its consideration of the bill. Regarding subsistence, competing interests had strongly differing opinions about Title VII of Committee Print No. 2, but by January 30, many of those differences had been amicably resolved. As Rep. Seiberling noted a day later in the Congressional Record,

Don Young has represented Alaska in the U.S. House of Representatives since 1973. In that capacity, he was a strong voice in the creation of ANILCA in 1980 and in subsequent years has played a hand in many subsistence matters. Office of Rep. Don Young.

The subcommittee completed its work on H.R. 39 on February 7, and the newly-revised bill showed subtle but important differences from Committee Print No. 2. Subsistence, for example, was a proposed purpose in all of the new and expanded park units (Aniakchak included), but at Katmai, subsistence would be limited to the proposed Alagnak addition. As for Title VII, two new sections were added; one on limitations, another one proposing a reimbursement to the State of Alaska for costs—not to exceed $5,000,000 per fiscal year—"relating to the implementation of the State program." In addition, the structure for local participation was changed; under the new regime, there would be "not less than five or more than twelve fish and game management regions [not necessarily following Native corporation boundaries] which, taken together, shall include all public lands where the State is exercising regulatory authority under this title." Local and regional fish and game councils would be organized within each of these regions, and all references to an "Alaska Subsistence Management Council" were expunged. A final change—one that disappointed many conservation activists—was the elimination of any reference to subsistence management zones. [113]

During the negotiations over the subsistence title, a key issue that defied easy solution was deciding who had first priority, in times of scarcity, to harvest subsistence resources. As noted in the legislative history, "early drafts of the subsistence title by the House Interior Committee allocated access to subsistence resources on an ethnic basis, an approach similar in concept to that suggested by the [ANCSA] Conference Committee." Section 709(b) of Committee Print No. 2, issued in late October 1977, reflected that notion; it noted that in the event of a declining or depleted resource, "highest priority" would be given "to allowing continued subsistence uses by Alaskan Natives primarily and directly dependent upon the particular resource." The hierarchy of those who were then eligible for the harvest was similar to criteria developed in 1975 by the Alaska Game Board; it noted that those most deserving were "other persons [i.e., non-Natives] primarily and directly dependent upon the particular resource as a mainstay of their livelihood," followed by "other Alaskan Native subsistence users" and then by "other customary or appropriate users." [114]

But in the months following the issuance of Committee Print No. 2, two factors combined to remove the Native preference. According to the Congressional Record, the "ethnic basis" for access to subsistence resources" was abandoned when "Governor Hammond correctly pointed out that under the Alaska Constitution, the State cannot participate in a subsistence management system which would require it to allocate access to subsistence resources on the basis of 'Nativeness.'" [115] Perhaps because of Hammond's comments, Congressional support for a Native preference quickly eroded. Attorney Donald Mitchell recalled that Interior Committee staffers Harry Crandell and Stan Sloss, who were asked to cobble together revised language in the weeks that followed the issuance of Committee Print No. 2, were surprised to discover, at a January 1978 mark-up session, that "all members of the [Alaska Lands and General Oversight Subcommittee] were highly unenthusiastic about a Native priority ... there was not even one vote in support ... it was obvious that the politics had changed." [116] This new state of affairs was later explained on the House floor by subcommittee chair John Seiberling, who noted that:

What replaced a racial preference was a preference based on rural residency. Section 702 of the February 1978 proposal stated that management policies on Alaska's public lands should "cause the least adverse impact possible on rural people," and Section 705(c)(3)(C) stated that in times of scarcity, "priorities for such consumptive uses" should be based on "(i)customary and direct dependence upon the resource as the mainstay of one's livelihood, (ii) local residency, and (iii) availability of alternative resources." [118] As noted above, the 1978 Alaska legislature had passed a subsistence law that—being consistent with the "equality" clause in the Alaska Constitution—contained no rural preference. The difference in language between the state law and the evolving federal law on this subject would prove vexing in the years ahead, and as Chapter 7 notes, the Alaska Constitution's equality clause would later wreak havoc on the state's ability to manage subsistence resources on public lands.

After emerging from Rep. Seiberling's subcommittee, H.R. 39 was considered by the full House Interior Committee. The bill passed that committee on May 3 and was referred to the full House, where it was debated beginning on May 17. After three days of floor debate, the bill passed the House 279-31 on May 19. Many features of the Alaska lands bill were hotly debated both in committee and on the House floor, but perhaps because Rep. Seiberling had been so inclusive in the subcommittee's deliberations, few changes were made in the House regarding subsistence (regarding either area eligibility or Title VII language) after mid-February. [119]

On May 23, H.R. 39 was reported to the Senate, where it languished because of the stated opposition to the bill by Alaska's two senators, Ted Stevens and Mike Gravel. Sen. Stevens, who was adroit at parliamentary tactics, resolved that if he could not pass a bill amenable to his terms, he would delay the bill at every step. All recognized that the timetable set by ANCSA demanded resolution of the issue by December 18, 1978; if no bill was passed by that deadline, the protections given to Alaska's national interest lands would lapse. Stevens reasoned that the looming deadline would create conditions fostering a compromise between H.R. 39 and the ideas advocated by many of Alaska's more conservative residents. [120]

To a large extent, Stevens's tactics worked, and by the time an Alaska lands bill emerged from the Senate Energy and Natural Resources Committee, it was early October and just eight days remained before the Senate was scheduled to adjourn for the year. The bill, as reported, was considerably weaker than either the Interior Department or conservationists had advocated. It called for relatively small parks or monuments, relatively large preserve areas, and the creation of several national recreation areas that would be open to a variety of multiple-use activities. In its approach to subsistence, its recommendations were remarkably similar to those advocated in Udall's early (January and mid-October 1977) versions of H.R. 39. In both of these bills, the protection of "the viability of subsistence resources" was an explicit purpose in only three proposed units in northwestern Alaska (Bering Land Bridge, Cape Krusenstern, and Kobuk Valley); [121] S. 9 also allowed subsistence in the proposed Gates of the Arctic unit, but only "where such uses are traditional." [122] Neither S. 9 nor the early versions of H.R. 39 sanctioned subsistence in any of the other proposed parks or monuments.

It seems remarkable, at least in retrospect, that the subsistence-related recommendations of avowed conservationists (such as those embodied in Udall's early versions of H.R. 39) would be so similar to those of Alaska's two senators, who were largely responsible for crafting the Senate committee bill. Conservationists, at first, did not want subsistence activities in many proposed parklands because they were driven by the idea of preserving Alaska's most "pristine" ecosystems; and as a practical notion, many felt that the subsistence lifestyle was such a marginal activity in many park areas that its elimination would cause minimal hardships. Alaska's senators, however, were motivated by an entirely different philosophy. Incensed that Alaska lands legislation would be "locking up" Alaska's most valuable resources, Alaska's senators fought back by attempting to open up as much acreage as possible to the broadest array of land uses. They were particularly sensitive to the demands of urban sportsmen and the guiding profession, and in response to those demands, the bill that passed the Senate committee appears to have leveled the playing field, so to speak, by giving subsistence users and urban sportsmen equal access to fish and game resources in the various proposed park units located outside of northwestern Alaska. In the Senate bill's treatment of the proposed Lake Clark, Wrangell-St. Elias, Gates of the Arctic, and Aniakchak units, for example, both rural residents and urban sportsmen were able to harvest fish and game in the preserve portion of the units, but neither group was able to harvest resources in the proposed park or monument portion of these units.

The report accompanying the Senate committee bill took pains to explain its actions regarding subsistence activities in two proposed NPS units: Noatak and Gates of the Arctic. The Noatak was proclaimed a throwback to nature in its purest form. The report lauded the area as "the largest mountain-ringed river basin in North America still virtually unaffected by human activities," and Smithsonian Institution officials had dubbed it "one of the most biologically significant land-water units still left in a pristine state." Local residents, however, were part of that "pristine state," because the report concluded that permitted activities would include both subsistence uses and "compatible recreational uses ... that will not interfere with ... the subsistence uses of the local people." Consistent with that theme, senators expected the NPS to "work closely with Native village inhabitants of the region to assure that Native cultural values are enhanced by establishment of the Noatak National Preserve." At Gates of the Arctic, however, the emphasis was on classification and limitation. The report noted that "boundaries between the park units and the preserve were delineated to largely contain the subsistence use zone of the Anaktuvuk Pass people in the preserve." The Senate report further stated that

To ascertain specific subsistence hunting areas, the Committee urged a "thorough study of the subsistence patterns of the people of Anaktuvuk Pass." If the study showed that subsistence hunting areas had changed, the park's subsistence zone could be adjusted to reflect the new reality. [123]

In addition to advocating major changes in which parks would be open to subsistence, the Senate committee bill also proposed a different methodological approach to the protection of subsistence resources, as embodied in the bill's subsistence management title. It matched provisions that had been included in the May 1978 House-passed bill regarding a requirement that the Secretary monitor and report on the state's progress on implementing the subsistence title (Section 806); and in addition, it required the Secretary to inform Congress of these implementation efforts (Section 813). Perhaps the most dramatic change, however, was the addition of two sections specifying how subsistence decision-making would take place in the three NPS parks or monuments that sanctioned subsistence uses. Section 808 defined the roles and responsibilities of the various Subsistence Resource Commissions—an advisory body composed of members chosen by the State of Alaska, the Interior Department, and the various Regional Advisory Councils—while Section 816 defined the terms under which the various parks or monuments would be closed to subsistence uses. [124]

In an attempt to forge a compromise between the House-passed bill and the Senate committee bill, Sen. Henry Jackson (D-Wash.), head of the Senate Energy and Natural Resources Committee, arranged a series of ad hoc meetings between the bill's key players with just three days left in the session. By October 14, the Senate's final day before adjournment, the committee had reached tentative agreement on most major issues. But at that point, Sen. Gravel—who had not previously participated in these meetings—made a number of additional demands that seemed extraordinary to the other meeting participants. The practical result of his demands was that no Alaska lands bill emerged from the 95th Congress. [125]

The Interior Department, perhaps in anticipation of such action (or, more appropriately, inaction), prepared documentation to protect Alaska's national interest lands until such time as the Congress could pass an Alaska lands bill. Thus on November 16, 1978, Interior Secretary Cecil Andrus withdrew more than 110 million acres of Alaska land, and on December 1, President Jimmy Carter—using as his authority the 1906 Antiquities Act—issued a series of proclamations designating seventeen national monuments. Together, they covered some 55,965,000 acres of Alaska's national interest lands. [126]

Carter's monument proclamations tremendously expanded the amount of Alaska land under the management of the National Park Service and other land management agencies. (Thirteen of the seventeen monuments, comprising some 40,780,000 acres of Alaska land, were to be administered by the NPS.) Of the thirteen NPS monuments (ten new units plus three extensions of existing units), all but one—newly-designated Kenai Fjords National Monument—specifically allowed subsistence. [127]

The proclamations for monuments sanctioning subsistence further stated that the Secretary of the Interior "may close the national monument, or any portion thereof, to subsistence uses of a particular fish, wildlife or plant population" for any of several reasons, and in addition, the Secretary was empowered to "promulgate such regulations as are appropriate, including regulation of the opportunity to engage in a subsistence lifestyle by local residents." In response to that clause, NPS personnel scurried to formulate regulations relating to subsistence and other topics. The details of that process are discussed in Chapter 5 of this study.

All sides in the battle over Alaska's lands recognized that a legislative solution was both necessary and worthwhile. Accordingly, the process left unfinished by the 95th Congress would be approached once again during the 96th Congress.

alaska_subsistence/chap4f.htm
Last Updated: 14-Mar-2003