Alaska Subsistence: A NPS Management History (Chapter 5)

Chapter 5:
INITIAL SUBSISTENCE MANAGEMENT EFFORTS (continued)

As noted in Chapter 4, the Alaska State Legislature passed a basic subsistence law in 1978. Governor Hammond signed it on July 12, and it became effective on October 10. Among its other provisions, the law "established in the Department of Fish and Game a section of subsistence hunting and fishing." [40] The new Subsistence Section was not given the usual management and enforcement responsibilities; instead, its role was limited to socioeconomic research and various planning functions. During its first two years, the division grew slowly; though a chief (Dr. Thomas D. Lonner), an assistant chief (Paul Cunningham), and a support person (Tricia Collins) came on board in February 1979, the Section was not actually operational until that summer. (See Appendix 1.) The first field-office positions were not filled until the fall of 1979, and the Section was not fully functioning until 1980. Once up and running, the Section began producing a series of technical reports; most were of a qualitative nature and were a direct response to regulatory proposals being considered by the Alaska Boards of Fisheries and Game. By the spring of 1981, Section personnel were working in nine different offices scattered around the state. [41] On July 1 of that year, via administrative means, the Subsistence Section was upgraded to Division status. Staff growth during this period was dramatic. [42]

NPS Historian Bill Brown, the region's first cultural resource chief, was an influential player in subsistence policy development both before and after ANILCA's passage. Nan E. Elliot photo, from I'd Swap My Skidoo for You

During the same two-year period, the legislature continued to keep a close eye on subsistence issues. The state's House of Representatives, for example, had a Special Committee on Subsistence that had been active since 1978 (see Chapter 4). This committee, which was dominated by members of the so-called "Bush caucus," remained active through the early 1980s. The committee during this period worked all year long; between legislative sessions it served a general oversight function for the Department of Fish and Game, collecting and distributing information on a wide range of subsistence issues and working with federal authorities on Alaska Lands legislation. [43] Perhaps because the new subsistence law had little immediate impact on hunting or fishing regulations, and because the federal government had not yet passed an Alaska Lands Act, the state legislature had little interest during this period in either modifying or repealing the 1978 subsistence law. [44]

The legislature's "wait-and-see" attitude during this period was shared, to some extent, by members of the state's Board of Game and Board of Fisheries. The joint boards, in March 1979, held a meeting before a "packed house" in Anchorage to consider adopting new regulations in the wake of the subsistence law's passage. [45] They deferred taking such a step for the time being; four days later, however, they adopted a "Policy Statement on the Subsistence Utilization of Fish and Game" that was, in large part, a reflection of verbiage in the 1978 subsistence law. In addition, they moved to publish the first booklet that was exclusively devoted to subsistence fishing regulations. (As noted in Chapter 1, subsistence regulations had been published ever since 1960, but they were scattered within the annual commercial fishing regulations booklets.) In lieu of regulations, the fish and game boards continued to apply a common regulatory framework to all harvests. Separate subsistence regulations reflective of the new subsistence law were not approved until after the Alaska Lands Act was passed. [46]

The joint boards, reacting to pressure applied by both Governor Hammond and the evolving Alaska Lands Bill, also acted on the long-simmering issue of regional advisory councils. On April 7, 1979, as noted in Chapter 4, the boards promulgated regulations that established five vaguely-defined fish and game regions, each of which would support a regional advisory council. Four of the regional councils held meetings that year. [47] A fish and game official, stressing the tentative nature of the councils, stated that

Charles M. (Mack) Shaver served as the first superintendent of the NPS's so-called Northwest Alaska Areas: Cape Krusenstern National Monument, Kobuk Valley National Park, and Noatak National Preserve. NPS (AKSO)

Fish and Game Commissioner Ronald Skoog defended the board's role. The councils, he noted, "should help our efforts in the Congress relative to 'regionalization' as proposed in the current (d)(2) legislation. It should at least demonstrate that the State is attempting to improve the public participation process by promulgating responsive regulations and by addressing the concerns of rural residents." Speaking in early 1981, Skoog further noted that "since regional councils were established, more than half of their recommendations have been adopted." Among rural subsistence interests, however, the meetings of the newly-created councils were greeted with skepticism if not cynicism. An observer at one October 1979 meeting concluded that it was "less than completely effective in providing public input into the regulatory process," while a participant at another meeting noted it was "merely a forum for the executive director of the Boards of Fish and Game to express his personal opinions." [49]

In December 1980, the Board of Fisheries held its first hearings on the state's 1978 subsistence law. It did so in response to worries about overfishing in Cook Inlet; since the passage of the 1978 law, there had been a huge increase in the number of subsistence fishing permit applications, and a substantial increase in the subsistence salmon harvest was an inevitable result. In order to rationalize that activity, and in response to the District Court's decision in the so-called Tyonek case (Native Village of Tyonek vs. Alaska Board of Fisheries), [50] the board established ten characteristics for identifying the "customary and traditional uses" of Cook Inlet salmon. Based on those characteristics, the board decided to adopt a set of criteria drawn from them, and then to apply those criteria to various communities, groups, and individuals who wanted to conduct subsistence fishing activities in Cook Inlet. The board partially completed this task in December 1980; three months later, the board completed the task and issued its first subsistence fishing regulations under the new (1978) law. [51]

The passage of Alaska Lands Act legislation in late 1980, and the clear recognition that a rural subsistence preference was a critical adjunct of federal as well as state law, caused a furor of protest among many Alaskans, particularly urban sportsmen and their representatives. (Many blamed Alaska's Congressional delegation for the rural preference; Fairbanks resident Bill Waugaman, for example, stated that "Stevens and Young have always gone along with the Alaska Federation of Natives lobbyists" and that "it was Senator Stevens who told us in 1978 that there would be no subsistence section in the Alaska Lands Act if the state adopted its own subsistence law." [52]) Their collective frustration was expressed in two similar moves—a citizens' initiative and a legislative approach—that aimed to repeal the 1978 subsistence law.

Action on the citizens' initiative, called the "Personal Consumption of Fish and Game" initiative or simply the Personal Use Initiative, was already underway within days of ANILCA's passage. Sam E. McDowell, Warren E. Olson, and Tom Scarborough submitted an initial petition for "The Alaska Anti-Discrimination Fishing and Hunting Act" on December 18; a month later, however, the Attorney General rejected it because "the title of your initiative does not accurately express the subject of the bill." Undeterred, backers rewrote the petition and submitted it again, and on March 25, the Attorney General approved the initiative and allowed its backer to begin gathering the 16,265 signatures necessary for it to be placed before Alaska's voters. [53] Broad in its approach, the initiative pledged to not only repeal existing Fish and Game Code provisions that related to subsistence hunting and fishing, but it also "would, for fishing, hunting, or trapping for personal consumption, prevent classification of persons on the basis of economic status, land ownership, local residency, past use or dependence on the resource, or lack of alternative resources."

By the time the voter's initiative had been readied for signature gathering, a legislative bill (HB 343) had been introduced by Rep. Ramona Barnes (R-Anchorage). Less than two weeks after its March 16 submittal, the House Special Committee on Subsistence held a hearing on the bill at East High School in Anchorage. Some 600 people jammed into the hearing room; according to press reports, the vast majority in attendance backed Rep. Barnes' bill. [54] The Alaska House then voted on whether to move the bill out of the Special Committee. But in a crucial April 23 test, and on three subsequent occasions, Barnes was unable to muster a majority vote. On June 3, she withdrew her bill. [55] The backers of the personal use initiative, meanwhile, worked to gather a sufficient number of signatures to secure a place on the ballot. Completed petitions were filed with the Division of Elections by January 11, 1982, and on March 5, Lieutenant Governor Terry Miller certified to the requisite number of valid signatures. Both backers and opponents geared up for a statewide vote, which would take place at the next general election on November 4, 1982. [56]

Ronald O. Skoog served as Alaska's Commissioner of Fish and Game under Governor Hammond, from 1974 through 1982. ASL/PCA 01-4515

Aside from questions that surrounded the potential repeal of the subsistence law, subsistence matters were considered in a broad variety of venues during 1981 and 1982. In the spring of 1981, for example, the state Board of Game (as noted above) adopted subsistence hunting regulations. Other matters were put off until the legislative session ended, but soon afterward, state and federal authorities began a series of interactions that were designed to bring the state into compliance with ANILCA's provisions. [57] Fish and Game commissioner Ronald Skoog commenced the process on May 27 by submitting a compilation of state statutes, regulations, and other documents pertaining to subsistence. Interior Department officials, in response, met with ADF&G representatives on September 3 and discussed the documents' perceived shortcomings. Follow-up meetings were held on September 28 and 29 and again on November 5 and 6. [58] State officials dragged their feet because they were reluctant to toy with the state's regulatory and advisory system. [59] Federal officials, however, knew they held the upper hand; according to Section 805(d) of ANILCA, the federal government could legally assume control over the subsistence program if the state, by December 2, failed to adopt regulations related to definition, preference, and participation (as specified in Sections 803, 804, and 805). To conform to that timetable, ADF&G officials held a meeting of the joint game and fish boards on December 1, just one day before the deadline. At that meeting, the joint boards passed a key resolution that was intended to respond to federal concerns. [60]

Regarding issues of definition (Section 803), the combined boards recognized that ANILCA called for subsistence use only in areas where such use was "customary and traditional." Given that recognition, they initially defined "subsistence uses" as

The joint boards also defined "rural subsistence uses," and noted that the boards would "identify rural and other subsistence uses of fish or game resources" by referring to eight criteria that helped identify customary and traditional uses. (These criteria were similar to the ten "characteristics of subsistence fisheries" for the Cook Inlet Area, as noted above, that the Board of Fisheries had grappled with beginning in December 1980.) For instance, was there a long-term, consistent pattern of use? Did it recur in specific seasons of the year? Was the resource harvested near a user's residence? Were the skills involved in resource harvesting handed down from generation to generation? And did individuals use a wide variety of game and fish species? These patterns of use typified subsistence harvesting methods; as a result, affirmative responses to these and similar questions clarified "customary and traditional" uses by individuals and communities. These criteria, it should be noted, could be applied in urban as well as rural communities, and the combined fish and game boards avoided a specific definition of "rural areas" in their resolution. [61]

Ramona Barnes (R-Anchorage), who served in the State House for ten terms (1979-85 and 1987-2001), was an avid states' rights advocate who, in 1982, sponsored a bill to repeal the state's 1978 subsistence law. Alaska LAA

Another ticklish issue related to preference was a determination of how fish and wildlife resources would be apportioned in times of scarcity. The 1978 law, as noted above, had listed three criteria that outlined the degree to which local residents depended on subsistence resources. (These criteria were 1) customary and direct dependence upon the resource as the mainstay of one's livelihood, 2) local residency, and 3) availability of alternative resources.) The joint board's December 1981 resolution incorporated these criteria. Under no conditions, it noted, would fish or game managers allow populations to drop to the point that a sustained yield management regime could not be maintained. [62]

Regarding local and regional participation (Section 805), the combined boards addressed the status and role of the regional fish and game councils. As noted above, the joint boards had established five such councils in April 1979, and ADF&G officials had held meetings of four of those councils during the intervening two years. Several state legislators, in the wake of ANILCA's passage, had let it be known that "the state of Alaska currently has regulations in place and is currently operating regional councils and local councils which do all of the things enumerated in Section 805" of ANILCA. Federal authorities, however, reminded the state that ANILCA demanded at least six such councils, and that provision for these councils needed to be established by regulation. In response, the boards addressed the matter in their resolution and stated that the councils "shall take appropriate action, within their authority, to provide for rural and other subsistence uses." [63]

The joint boards, having passed a general policy on subsistence, also passed their first hunting regulations that provided for a subsistence preference. Specifically, residents of particular areas within game management units 23, 24, and 26—most of whom lived in or near newly-designated NPS units—were provided an increased opportunity to hunt Dall (mountain) sheep. [64] Having taken those actions, the joint boards were hopeful that the federal government would immediately certify their efforts and allow the state to formally assume control over the subsistence management program outlined in ANILCA. The Interior Secretary's office, however, delayed action, and for the next several months it was "engaged in a review process." [65]

Just two months after the Fish and Game Boards established a regulatory basis for the regional fish and game councils, board staff organized initial, two-day meetings for the six councils. (See Table 5-2, facing page.) The councils met during February and March 1982; a quorum was achieved everywhere except in Bethel, where the Western Regional Council met. Just as in their 1979 incarnation, each regional council was composed of the chairs of the various local advisory committees within that region; the number of committee members thus ranged from 4 to 15. [66] (See Appendix 2.) The meetings were primarily introductory, but as part of the agenda, council members were asked to nominate three people to each park or monument subsistence resource commission in their region. [67]

1971 — Sen. Jay Hammond (R-Naknek) submits a bill calling for ten regional fish and game boards. It passes the Legislature, but Gov. William Egan vetoes it.

Oct. 1977 — H.R. 39 calls for a series of federally-controlled regional subsistence boards

Feb. 1978 — Revised H.R. 39 calls for between 5 and 12 state-managed regional subsistence management councils

May 1978 — House-passed H.R. 39 calls for "at least five" regional subsistence councils. The bill that passed the Senate committee in October includes an identical provision.

1979 — state legislators propose two bills; one calls for seven regional fish and game boards, the other for six regional advisory councils. Neither bill passes.

Mar.-Apr. 1979 — joint fish and game boards, following a 1978 plan, establish regulations for five fish and game regions, each with an advisory council

May 1979 — U.S. House passes H.R. 39, which calls for seven regional advisory councils

Aug. 1980 — Senate-passed bill calls for "at least six" such councils. In Dec. 1980, this bill becomes law.

Feb.-Mar. 1982 — Initial meetings of the six state-managed councils. In April, the combined fish and game boards pass revised council regulations

1982-84 — Sporadic meetings of some councils; by late 1983, most were inactive.

Late 1984-early 1985 — hiring of staff coordinators signals renewed interest in RACs.

Mid-to-late 1980s — A few councils meet during 1985-86 period, but generally quiet in late 1987-early 1988. Partial revival of state councils in 1988 and 1989.

1990-92 — Shortly after federal assumption, FSB commissions study on effectiveness of regional and local decisionmaking. Study recommends federal manage- ment of regional decisionmaking; FSB adopts this alternative in April 1992. State-managed regional councils cease functioning soon afterward.

During the 1970s, William P. Horn served as a staff assistant to Rep. Don Young. After ANILCA became law, he became Interior Secretary Watt's undersecretary in charge of Alaskan affairs. He remained in that position until 1988. ADN

In the midst of these meeting dates, Interior Secretary Watt formally responded to the adequacy of the state subsistence program. In a February 25 letter addressed to Governor Hammond, Watt noted that, in most aspects, "the State program appears to satisfy section 805(d) of the Alaska National Interest Lands Conservation Act." His primary concern was that the state had "not demonstrated that it has established 'laws' which provide for all of the essential provisions" of sections 803, 804, and 805. He specifically noted that the joint boards' December 1981 resolution "cannot be relied upon to satisfy Title VIII because it has not been promulgated as a regulation and thus is not binding on the Boards of Fisheries and Game." A second difficulty, Watt noted, was that the definition of "subsistence uses" as included in the December 1981 resolution was not specific to "rural Alaska residents" as ANILCA demanded. The state program must "identify ... rural subsistence users and extend ... the section 804 priority [for rural residents] and section 805 participation scheme [for regional councils] to those users." Finally, Watt stated that during times of fish or game scarcity, the state's program "must provide that restrictions will be applied among rural residents engaged in subsistence uses; the December 1981 policy resolution gave "the highest priority to local residents in rural areas" but omitted any requirement that these residents be subsistence users. Hoping to be helpful, Watt delineated his suggestions by specific additions and deletions to text in the December 1981 policy resolution. He assured Hammond that "If enacted in its entirety as a regulation, the approach embodied in the suggested edited revision would comply with all applicable provisions of Title VIII." [68]

The next scheduled meeting of the joint fish and game board was in early April 1982. The adoption of regulations that would be compatible with ANILCA was an important agenda item, so to clarify the federal government's stance, ADF&G Commissioner Ron Skoog invited William P. Horn, the Interior Undersecretary charged with advising Watt on "d-2" issues, to speak at the Anchorage meeting. [69] (See Appendix 1.) Horn, at the meeting, put a human face on the regulations laid out in Watt's letter, and he emphasized that "the department remains, philosophically and policy wise, strongly committed to state management." If the board approved compatible regulations, Horn promised that "the [Interior] secretary will immediately issue the letter of approval and the responsibilities for implementing this program will remain firmly in the state. I guess I can't emphasize enough how much we wish we could do that...." He warned, however, that unless the board issued "some form of a regulation or law that establishes the [rural] priority in a proper fashion that conforms with the federal statute, we will shortly be forced to issue some kind of preliminary finding of noncompliance." If the department issued such a finding, the federal government might be forced to assume fish and wildlife management on Alaska's federal lands, "perhaps as soon as a month and a half from now," Horn added. [70]

Although Watt, in his letter, had noted that the state had some flexibility in responding to the three problem areas—"the State definition [of 'rural Alaska residents'] need not be identical to section 803," for example—many fish and game board members recognized that they had little latitude in complying with the federal government's dictum. Jim Rearden, a Game Board member from Homer, called it "blackmail," while joint boards chair Clint Buckmaster, from Sitka, noted that he was "sick to the core and the heart" over his decision. Some board members, along with many outside observers, used an analogy to poker; they concluded that the state should call the federal government's "bluff" and dare them to take over fish and wildlife management. ("The situation could hardly be worse than it is now," many felt.) Others, however, urged the joint boards to adopt the revised regulation. After three hours of deliberations, the boards voted 10 to 3 to comply with federal subsistence requirements. [71]

The joint board regulation, as decided on April 6, made no mention of what constituted a "rural" Alaskan, and neither the Alaska legislature nor the joint boards had specifically defined rural residency since the October 1978 passage of the state's subsistence law. But just a day later, the fish and game boards moved to conform with Section 804 of ANILCA by defining which areas were eligible to hunt and fish for subsistence purposes. It defined as rural (and therefore eligible for subsistence) those areas that were "outside of the road-connected area of a borough, municipality, or other community with a population of 7,000 or more, as determined by the Alaska Department of Community and Regional Affairs." Excluded were the residents of Anchorage along with the "road connected" portions of the state's most heavily-populated boroughs: Fairbanks North Star, Juneau, Kenai Peninsula, Ketchikan Gateway, Kodiak Island, Matanuska-Susitna, and Sitka. These areas, when combined, comprised only a small part of Alaska's land mass; populations levels outside of the road system, however, were so scattered that only 15 percent of the state's residents, according to this system, qualified as subsistence users. [72]

On April 29, 1982, Governor Hammond transmitted the final elements of the state's subsistence and use program to the Interior Secretary James Watt. On May 14, Watt responded by certifying to Hammond that the state's subsistence program "will be in compliance with sections 803, 804, and 805 of ANILCA as of June 2, 1982. As a result of this certification of compliance, the State retains its traditional role in the regulation of fish and wildlife resources on the public lands of Alaska." A mid-May press report noted that "Watt's action was a direct rebuff to those opposing a priority subsistence measure." [73]

One immediate response to the Interior Department's certification of the state's subsistence program—and the various late-winter meetings of the regional advisory councils—was that the federal government began to reimburse the state for certain costs related to subsistence management. Section 805(e) of ANILCA had stated that "The Secretary shall reimburse the State ... for reasonable costs relating to the establishment and operation of the regional advisory councils." Based on the fact that the state had organized various late-winter meetings of the regional advisory councils, as well as its fulfillment of the other federally-mandated aspects of its subsistence program, the federal government provided the state with a $960,000 reimbursement for Fiscal Year 1982. During the following funding cycle, reimbursements were increased to $1 million and remained at that level for the next several fiscal years. (See Table 5-3, following page.)

Source: Section 806 and 813 reports; Richard Marshall and Larry Peterson, A Review of the Existing Alaska Department of Fish and Game Advisory System and a Determination of its Adequacy in Fulfilling the Secretary of the Interior's and the Secretary of Agriculture's Alaska National Interest Lands Conservation Act Title VIII Responsibilities (Anchorage, F&WS, June 1991), 7.

On August 23—more than three months after Watt certified the state's program—Interior Undersecretary Horn wrote to the regional directors of the various Alaska land management agencies and laid out guidelines on how the state's program would be monitored by federal officials. A key decision made in that letter was the designation of a single agency that would coordinate federal monitoring efforts. In that letter, Horn noted, "it has been determined that lead responsibility for the monitoring of fish and wildlife populations on all public lands will be vested in the Fish and Wildlife Service." [74] The F&WS's role as a centralizing agency for subsistence matters was initially quite small. A precedent had been set, however, and in early 1983 the Secretary designated the F&WS as the lead agency for the federal government's annual Section 806 (monitoring) reports. [75] Later that same year, the agency was asked to coordinate the Interior Department's review and response to the various Regional Council annual reports. [76] In future years, the F&WS would be called on to shoulder additional coordinating functions as federal managers assumed more subsistence responsibilities. [77]

During the six months that intervened between the Interior Secretary's program certification and the November 1982 election, Alaska voters were given ample opportunity to consider the legitimacy of the "Personal Consumption of Fish and Game" initiative (often called the Personal Use Initiative) which had been certified by the state elections division in March 1982. As noted on the ballot, the proposal

The proposition would, in short, repeal all state-sponsored legislative and regulatory actions that, since 1978, had established a legal basis for subsistence in Alaska.

This initiative, which appeared on the ballot as Proposition 7, was favored by the Alaska Outdoor Council and a broad array of sport hunters and sport fishers, many of whom resided in urban areas. Organized under the ad hoc, Anchorage-based Alaskans for Equal Hunting and Fishing Rights or the Fairbanks-based Citizens for Equal Hunting and Fishing Rights, initiative backers stated that "Alaskans are not happy with the present discriminatory system in both state and federal law.... The present law has effectively repealed subsistence for 85% of Alaska's residents. [79] Passage of this initiative would restore the concept of equality in fish and wildlife resource allocation." They urged changes in both state and federal laws that related to subsistence. But many others, who formed under the umbrella group Alaskans for Sensible Fish and Game Management or Southeasterners Organized for Subsistence, liked the provisions of the 1978 law and wanted the keep the status quo. They warned that despite the obvious state's-rights orientation of Secretary Watt, passage of the initiative would bring an immediate federal takeover of fish and wildlife management. They argued, moreover, that ANILCA—the keystone of the state's subsistence management system—would be virtually impossible to change if the initiative was approved. Governor Hammond and all three members of Alaska's Congressional delegation urged Alaskans to reject the measure. [80]

After a tense, combative campaign, Alaskans cast their vote on the Personal Use Initiative on November 2, 1982. The initiative was decisively defeated, 111,770 to 79,679 (58.4% to 41.6%). The state-managed program—with its rural preference—appeared to be secure, at least for the foreseeable future. Outgoing Fish and Game Commissioner Ron Skoog, who supported the initiative, noted that the fish and game boards would be meeting in December and might choose to tinker with the definition of "rural" at that time. Skoog also felt that the "good, strong expression of public opinion" expressed by the initiative might spur the legislature into renewed action; and he also felt that William Sheffield, the newly-elected governor, might provide a new spark in the subsistence debate by appointing sympathetic members to the fish and game boards. [81]

Neither Sheffield nor the Thirteenth (1983-84) Alaska Legislature showed any particular inclination to meddle with the rural preference issue. [82] The joint fish and game boards, however, appeared unwilling to accept the status quo. At a March 24, 1983 meeting, the joint boards repealed the regulation defining rural residence (Alaska Administrative Code, Title 5, Section 99.020) that they had approved in April 1982. They took the action because the Alaska Attorney General, in a February 25 letter to Governor Sheffield, had determined that a definition of "rural" was not required by either state or federal law; the joint board's year-old definition, moreover, "posed equal protection and vagueness problems." [83] The Interior Department accepted that change. As a 1984 Interior Department report noted,

The joint boards' action thus removed specific geographical boundaries delineating rural from urban areas. Making those distinctions, in the future, would be a function of customary and traditional use determinations.

alaska_subsistence/chap5b.htm
Last Updated: 14-Mar-2003