Alaska Subsistence A National Park Service Management History

H. An Alaska Lands Bill Becomes Law

Because House members had fully discussed Alaska lands issues in the 95th Congress, the bill that was introduced in mid-January 1979 to address those issues—again entitled H.R. 39—was in many aspects not drastically different from that which had passed the House of Representatives the previous May. Subsistence was different, however. Perhaps because the proposed parklands were already protected via Carter's proclamation, Title II (the title that in earlier bills had proposed the various park units) was given over to changing the units' designation—from national monuments to national parks—no language about subsistence was included in the "purposes" section. Title VII, moreover, was a stripped-down version of the bill that the House had passed eight months earlier; previously fifteen sections in length, the new version was composed of just nine sections. [128]

H.R. 39 wended its way through the House of Representatives more quickly than it had in the previous Congress, and on May 16, 1979, the House passed the bill on a 360-65 vote. This bill made no statement regarding which proposed park units would allow subsistence; it was assumed, therefore, that the decisions that President Carter had made in December 1978 were appropriate. In other aspects, the bill was more akin to the document that had passed the House a year earlier than the bill that had been introduced in mid-January. A few changes were evident, however. The May 1979 House bill, for example, omitted any requirement that the Interior Secretary submit periodic reports to Congress on Title VII implementation. The bill also failed to recognize, on a park-by-park basis, the importance of subsistence as a purpose for the designation of any park units. Instead, Sec. 202(f) of the House-passed bill declared the legitimacy of subsistence uses on Alaska's parklands via the following language:

The Secretary shall administer and manage those units of the National Park System established or redesignated by this Act to ensure the opportunity to continuation of subsistence uses by local residents, where such uses were permitted on January 1, 1979. [129]

The May 1979 bill, in a manner similar to the January 1979 and the May 1978 bills, continued to promote the idea of regional and local participation. By now, it had been decided that there would be "at least seven Alaska subsistence resource regions;" within those regions, there would be one "regional advisory council" and "such local advisory committees within each region as [the Secretary] finds necessary at such time as he may determine ... that the existing State fish and game advisory committees do not adequately perform the functions of the local committee system...." [130]

The idea of regional councils, and other decentralized aspects of fish and game management, had long been debated by state officials. Natives and other rural residents, in general, favored a decentralized management system, while urban residents favored a continuation of the system—featuring local committees advising the fish and game boards—that had existed since statehood. During the 1971 legislative session, Senate Majority Leader Jay Hammond (R-Naknek) had submitted a bill that called for ten regional fish and game boards, and by the following year a proposal for twelve such boards had cleared the legislature. Governor William Egan vetoed the bill "because of procedural problems and technical flaws." [131] The state took no further action for the next few years, but in August 1977, Jay Hammond—now Alaska's governor—testified that he was "reviewing a proposal I suggested several years ago regarding the creation of regional or so-called satellite fish and game boards." Just two months after that testimony was given, federal officials—as part of H.R. 39—proposed a series of federally-controlled regional and local subsistence boards, all of which would report to an Alaska Subsistence Management Council. Hammond, now convinced that his initial proposal had merit, agreed with the latest wrinkle in H.R. 39 and pushed for a similar, state-managed system. [132] His ideas were sufficiently persuasive that by February 1978, the notion of an Alaska Subsistence Management Council had been eliminated—in its place would be five to twelve regional advisory councils—and the bill that passed the House in May 1978 called for "at least five" regional management councils. (The bill passed by the Senate Energy Committee in October 1978 also contained this provision.) A year-end annual report by the Alaska Department of Fish and Game noted that the Department had proposed and mapped out a five-region system; the fish and game boards were ready to consider proposals "to provide for regional participation in the development of fish and game regulations." They hoped to take action on the plan in the next few months. Native groups, however, openly worried that the Department's proposed boards would decide matters on the basis of politics rather than biology. As an alternative, Nunam Kitlutsisti drafted its own proposed bill; it called for seven regional resource councils and a far more decentralized way of revising the fish and game regulations. [133] (See Map 4-4)

Map 4-4. Proposed Regional Management Councils, 1978. (click on image for an enlargement in a new window)

In early 1979, the long-simmering debate between regional boards and regional advisory councils began anew when Alaska House Speaker Terry Gardiner (D-Ketchikan) introduced a bill (HB 193) calling for seven regional fish and game boards. Governor Hammond, in response, asked the legislature to pass a bill (HB 304), supported by the Alaska Federation of Natives, that authorized six regional advisory councils. The legislature, as it turned out, passed neither measure. [134] The joint fish and game boards, following the script that they had laid out in late 1978, established regulations for five fish and game regions (each with an advisory council) on April 7, 1979. [135] Native groups, in response, let it be known that they hoped to see even more regional autonomy, either by increasing the number of management regions or by replacing regional advisory councils with regional boards. The version of H.R. 39 that passed the House in May 1979 (calling for seven regional advisory councils) was therefore a slight improvement on the joint boards' month-old advisory system. [136] Neither this bill, nor any other previous bill given serious Congressional consideration, made any special provisions for participatory bodies whose sole concern would be the various proposed park units.

In the 96th Congress, as previously, a surge of Alaska lands bill activity in the House of Representatives was followed by a general lack of interest in the Senate. The Senate's Energy and Natural Resources Committee did not take up H.R. 39 until October 9; much to the dismay of conservationists, chairman Henry Jackson used the bill passed by his committee the previous October as a mark-up vehicle. Three weeks later, the committee reported out a bill, S. 9, that contrasted sharply with the House-passed bill. [137] Similar to the bill that the same committee had voted out in early October 1978, it made relatively modest acreage allotments for the national parks and for wilderness areas, although it allotted a relatively large number of acres in national preserves and also allotted several million acres into three national recreation areas.

Several other features differed between the House-passed bill and the Senate Energy Committee's bill. The Senate bill, identical to its October 1978 predecessor, noted that subsistence was a stated purpose for three proposed units: Bering Land Bridge National Preserve, Cape Krusenstern National Monument, and Kobuk Valley National Park. In addition, subsistence was a permitted use at Gates of the Arctic National Park as well as at Cape Krusenstern and Kobuk Valley. Those eligible to use those resources, however, differed between these three units. At Cape Krusenstern, anyone following the provisions of Title VIII would be permitted to use the area for subsistence purposes. At Kobuk Valley, however, that privilege was extended only to local residents who adhered to the title's provisions, and at Gates of the Arctic, subsistence could take place only by local residents and only "where such uses are traditional in accordance with the provisions of title VIII." [138] Neither the remaining park and monument units (Aniakchak, Kenai Fjords, Lake Clark, and Wrangell-St. Elias) nor the three unit extensions (Glacier Bay, Katmai, and Mount McKinley) offered provisions for subsistence. The report accompanying the passage of the Senate committee bill made additional comments about the virtues of the Noatak and Gates of the Arctic proposals; the language of those comments was almost identical to that which had appeared in the report that had accompanied the passage of the October 1978 committee bill. [139]

In the bill's subsistence title (which was Title VII in the House bill but Title VIII in the Senate bill), the Senate Committee bill made several additional modifications to the House-passed bill. Most of these were simple reiterations of the October 1978 Senate Committee bill, and among those reiterations were the two sections dealing with subsistence resource commissions. Minor alterations were also made to public participation for subsistence users outside the parks; for instance, the minimum number of statewide subsistence resource regions was changed from five (in the 1978 Senate committee bill) to six. [140]

Another new concept that emerged during the committee's work was the recognition that wildlife in the various national park units would be managed according to a slightly different standard than on other public lands. Section 815(1) of the bill proposed what no previous Senate or House bill had done—that "subsistence uses of fish and wildlife within a conservation system unit" needed to be "consistent with the conservation of healthy populations," while subsistence uses in national parks and monuments needed to be managed so as to be consistent "with the conservation of natural and healthy populations of fish and wildlife." In the report that accompanied the committee bill, the term "healthy" was defined but "natural and healthy" was not. It explained suggested management differences between NPS and non-NPS areas as follows:

The Committee recognizes that the management policies and legal authorities of the National Park System and the National Wildlife Refuge System may require different interpretations and application of the "healthy population" concept consistent with the management objectives of each system. Accordingly, the Committee recognizes that the policies and legal authorities of the managing agencies will determine the nature and degree of management programs affecting ecological relationships, population dynamics, and the manipulation of the components of the ecosystem. ... The reference to "natural and healthy populations" with respect to national parks and monuments recognizes that the management policies of those units may entail methods of resource and habitat protection different from methods appropriate for other types of conservation system units. [141]

Two weeks after the Senate bill emerged from the Energy and Natural Resources Committee, Senators Paul Tsongas (D-Mass.) and William Roth (R-Del.) introduced a more conservation-oriented bill as a substitute to the committee-passed bill. The introduction of that substitute, however, effectively delayed action until the following summer. On July 21, 1980, the bill was finally debated on the Senate floor, but when Sen. Stevens witnessed the strength of votes (on amendments) in favor of a strong conservation-oriented bill, he prevailed upon the Senate leadership to take the bill off the floor. The leadership then appointed an ad hoc committee of three senators—Henry Jackson, Paul Tsongas, and Mark Hatfield (R-Ore.)—who held several private meetings in an attempt to forge a compromise between the dramatically diverse factions. Out of the meetings of the "three Senators behind closed doors" came Amendment No. 1961, which was Sen. Tsongas's own substitute to the Senate's Energy and Natural Resources Committee bill. On August 18, the full Senate addressed that bill, which was co-sponsored by senators Jackson, Tsongas, Hatfield, and William Roth. The bill, as intended, was a delicate compromise between the House-passed bill and the Senate's committee bill; Tsongas himself noted, "If you look at H.R. 39 and S. 9 issue by issue, the substitute pretty much comes in the middle between those two bills. We did not intend it to work out that way, but, in fact, that is what happened." Soon afterward, the full Senate voted to accept that substitute in lieu of the committee's bill, and the following day, Amendment No. 1961—the ad hoc group's version of the Alaska Lands Act—passed the Senate by a vote of 78-14. [142]

House members, who looked on with guarded disappointment at the Senate's actions, vowed to iron out the many differences between the two bills in a House-Senate conference committee. Those efforts proved halting, however, and many issues remained unresolved when Congress recessed on October 15. House members, in particular, hoped that further progress could be made when Congress re-convened a month later. But all hopes of compromise were dashed on November 4, when Ronald Reagan—an avowed opponent of a pro-conservation bill—was elected president. That event, plus the Republican party's assumption of control over the Senate, forced advocates of the House bill to give up the fight and agree to the Senate-passed bill. On November 12, House members agreed to the Senate bill, and on December 2, 1980, President Jimmy Carter signed into law the Alaska National Interest Lands Conservation Act. [143]

The various senators that huddled together and emerged with Amendment No. 1961 in July and August 1980 made some significant changes to the bill that the Senate Energy and Natural Resources Committee had passed the previous October. Some of those alterations pertained to the nature of subsistence activity that would be allowed in the various parks and monuments. The committee bill, it may be recalled, authorized subsistence activities only at Cape Krusenstern, Kobuk Valley, and Gates of the Arctic (as well as on all of the national preserve lands), and the bill protected "the viability of subsistence resources" only at Bering Land Bridge National Preserve as well as at Cape Krusenstern and Kobuk Valley. [144] Amendment No. 1961, however, broadened those notions. The subsistence viability protections remained at the same three units noted above, but in addition, the number of new or expanded parks or monuments allowing subsistence mushroomed from three to seven. Unlike the Senate-pass bill, however, all seven of the units sanctioning subsistence permitted the activity only by local residents, and in five of the seven units—not just at Gates of the Arctic—the activity was allowed "where such uses are traditional." By contrast to the many changes in Title II, the assembled senators had little interest in tinkering with the Senate committee's version of Title VIII. The only known change to that title was in Section 807 (dealing with judicial enforcement); here alterations were made because "all of the parties involved" had felt that the section was cumbersome and ambiguous. [145]

Amendment No. 1961, as noted above, allowed subsistence uses in many new park units on a "where traditional" basis; incorporating this language on a widespread scale was a painful compromise between the Senate committee bill (which allowed subsistence in only three park units) and the House-passed bill (which allowed subsistence in almost every new or expanded park unit). Because the term "where traditional" had not been applied on such a broadly-applicable basis before, Sen. Charles Mathias (R-Md.) took pains to elaborate on how the term should be applied. As part of a report describing the so-called "Tsongas Substitute," Mathias noted the following:

In two areas, Cape Krusenstern National Monument and Kobuk Valley National Park, subsistence uses are wide-spread throughout the park units. In other instances subsistence uses have traditionally occurred in selected portions of the areas and on specific populations of wildlife. The intent of authorizing subsistence within Gates of the Arctic, the northern addition to Denali, Lake Clark, and Aniakchak is to protect those traditional uses in traditionally used portions of the units and on traditionally used populations. The Secretary should continue his research efforts to add to existing data concerning which portions of the parks and which populations have traditionally been for subsistence purposes. The Secretary should work with the Subsistence Council to define "subsistence zones" within those parks and monuments which authorize subsistence. [146]

Further—and somewhat contradictory—information about the concept emerged in the Senate the very next day, as evidenced by this dialogue between two key formulators of the final bill:

Mr. [Mark] Hatfield: Am I correct in stating that the use of the phrase "where such uses are traditional" means that those portions of the parks and those populations within the parks which have been traditionally used would be available for subsistence while the rest of the park area would not be available for subsistence.

Mr. [Henry] Jackson: The Senator is correct. The management of this provision must be a flexible one that accounts for the movements of animals. For example, the great caribou herds of northern Alaska that migrate through the mountain passes of the Brooks Range do not use the same passes each year. ... If a [moose] population changes its range then the Park Service should adjust the subsistence hunting zone to accommodate that change. The phrase "where such uses are traditional" also means that if a village has traditionally used a particular valley for subsistence then they should be allowed to continue their use of that valley for those species they have usually hunted. [147]

By the time the Alaska Lands bill was signed, there were relatively few points of strong contention in the arena of subsistence management; the House and Senate bills were remarkably similar in that aspect. On the one hand, sport hunting interests complained that too many acres were in national parks or monuments, and a plain-speaking Sen. Gravel (R-AK) stated that he "always feared that ... the massive, restrictive conservation system units designated in this legislation would be used to terminate or severely curtail existing recreational and traditional uses of the lands involved." Some conservationists, on the other hand, grumbled that they had given away too much in order to preserve the so-called "Alaska lifestyle." As Rep. James H. Weaver (D-Ore.) noted in September 1980,

The Senate [bill, which became law] would allow anyone who built a cabin in a national park before 1974 to keep and use that cabin even though he or she had no right to do so and are, in effect, trespassers. In addition, these trespassers can pass on their unique privilege until the death of the last immediate family member residing in the cabin. The bill also gets so specific about permitting continuation of so-called traditional uses—such as snowmobiles, airplanes, and even temporary campsites, tent platforms, and shelters, no matter where they occur—that the ability of Federal land managers to exercise flexibility and discretion in regulating the public lands will be severely reduced. [148]

Roger Contor, who followed the act's legislative progress in his capacity as the NPS's assistant to the director on Alaska matters from 1977 to 1979 [149], recognized that the final wording in the bill's subsistence section was a hard-fought, contentious compromise. In a 1984 speech to the Alaska Game Board, he noted that "During the weeks when Title VIII was being formulated, arguments were presented over nearly every written word. The same was true for the words which went into the Congressional Record and the Senate Report." Recognizing that the Game Board generally favored liberalizing the game regulations, Contor remarked that "many groups were adamant, and still remain so, that there should be NO hunting allowed in the parks, subsistence or otherwise." [150] All agreed that translating the law into a functioning bureaucratic reality would be lengthy and difficult.

Nine long years after the passage of the Alaska Native Claims Settlement Act, Alaska's rural subsistence users finally had a basic legal apparatus that promised to protect their interests. Much of their success in protecting those interests, however, depended on the success of the regulatory mechanisms that would be organized in accordance with the Alaska National Interest Lands Conservation Act. Chapter 5 will cover the process of that organization and implementation.

Map 4-5. National Conservation Areas in ANILCA, December 1980. (click on image for an enlargement in a new window)