Alaska Subsistence A National Park Service Management History

A. The Madison Decision and Its Impacts

The Alaska Supreme Court, in February 1985, upset the state's three-year-old subsistence management system when it ruled that "subsistence is not strictly limited to rural communities." Members of the court that year (left to right) included justices Jay A. Rabinowitz (chief), Allen Compton, Warren W. Matthews, Daniel Moore, and Edmund Burke. Alaska Court System

On February 22, 1985, an Alaska Supreme Court decision dealt a major blow to the state's newly developed subsistence management system. On that day, the court announced its verdict in the landmark Madison v. Alaska Department of Fish and Game case. The court concluded, in the words of Justice Daniel A. Moore, Jr., that "subsistence use is not strictly limited to rural communities." The Supreme Court's interpretation of the Alaska constitution's "equal access" doctrine meant that any Alaska Board of Fisheries regulations advocating a rural preference ran contrary to the legislature's intent when it enacted the 1978 subsistence law. The Interior Secretary reacted to the Supreme Court's decision by stating that the Alaska Legislature needed to pass a law guaranteeing a rural subsistence preference; if it did not do so, the federal government would be obliged to assume management of Alaska's subsistence program. The legislature, in fact, eventually did pass an amended subsistence law. The practical effect of the Supreme Court's decision, however, was that for the sixteen-month period between February 1985 and June 1986, there was considerable uncertainty about the future of ANILCA's subsistence management program.

The problem had begun back in 1981, when the Alaska Board of Fisheries—based on the ten "characteristics of subsistence fisheries" that it had developed at its December 1980 meeting—ruled that subsistence fishing in Cook Inlet would be limited to the residents of Tyonek, English Bay, [1] and Port Graham. This ruling excluded a number of longtime subsistence fishers from the Homer and Kenai areas, because neither area fit the board's subsistence criteria. Gene Madison and nine other fishers from the Kenai coastline responded to the Fisheries Board decision by applying for subsistence permits. When these were denied they filed suit, arguing that the 1981 regulation exceeded the scope of the state's subsistence law. These ten appellants were later joined by another group of subsistence fishers, headed by Louis Gjosund, from the Homer area. In two different superior court cases, judges backed the Fisheries Board and ruled that the regulation was "consistent with the statutory grant of authority." But the Supreme Court reversed the trial courts' decisions and argued that the regulation was invalid because it was "contrary to the legislature's intent in enacting the 1978 subsistence law." The Supreme Court ruled that the subsistence law was not specific enough to exclude urban Alaskans from subsistence fishing and hunting. The court thus ruled that all Alaskans, in effect, qualified for a subsistence preference. [2]

Alaskans immediately recognized the importance of the Madison decision and the imbalance it created between ANILCA and Alaska's subsistence law. Governor William Sheffield, in response, mulled the matter over for awhile with his advisers; then, on March 13, he submitted a bill for the Alaska legislature's consideration that would include a rural definition in the statutes and thus make state and federal laws mutually compatible. His bill (HB 288) was intended to accomplish that objective by making laws of the regulations that the Supreme Court had struck down on February 22. [3]

The Alaska Board of Game, in response to the Madison decision, convened an emergency meeting to consider management alternatives. At that meeting, held in Juneau on April 2 and 4, the board—fearing that the abandonment of the rural preference would result in a wholesale slaughter of the state's major wildlife species—authorized 54 so-called Tier II subsistence hunts in cases where the number of hunters needed to be limited. (The game board, as noted above, had made a statutory provision in December 1981 for hunts that would rationalize the number of users in times of scarcity, but never before had such a hunt actually been implemented.) Those hoping to obtain permits for these hunts were asked to fill out a questionnaire. Questions were directed at determining three criteria: 1) customary and direct dependence on the resource as the mainstay of one's livelihood, 2) local residency, and 3) availability of alternative resources. Applicants received a maximum of 90 points (30 points for each of the three questions), and only the highest-ranked applicants received permits. The game board's new system, which excluded non-Alaska residents entirely, ensured that many—though not all—of the permit holders would be residents of the game management units where the hunts were planned. [4]

No sooner had the Game Board acted than another court decision was issued that further undermined the state's subsistence regulations. On April 12, 1985, the Alaska Court of Appeals, in State of Alaska vs. Eluska, exonerated a Kodiak resident (David Eluska) who had shot a deer out of season because he claimed to be a subsistence hunter. (The Board of Game, at this time, had issued almost no separate subsistence regulations, and the plaintiff argued that he could not be prosecuted if there were no regulations that specifically provided for subsistence uses.) [5] The court's legitimization of a "subsistence defense" threatened the enforceability of a wide range of wildlife regulations, because it suggested that many practices that would otherwise be considered as the illegal taking or possession of wildlife would be justified in the guise of a "subsistence use." The combined effect of the Madison and Eluska decisions could not be overestimated; it appeared that all Alaskan residents, citing these decisions, could now take fish and wildlife—under the guise of subsistence harvesting—without regard to season and bag limit. [6]

The Alaska Legislature, meanwhile, attempted to hammer out a solution to the subsistence dilemma caused by the Madison decision. Many House members, for instance, were opposed to Sheffield's bill, and two competing bills—HB 414 and HB 448—suggested alternative solutions. But on May 2, HB 288 passed the House on a 21-19 vote, and two days later it passed again in a reconsideration vote, 21-18. That bill, still largely unchanged from its original form, called for a rural preference and defined a rural area as "a community or area of the state in which the taking of fish and wildlife for personal or family consumption is a significant characteristic of the economy of the community or area."

The bill was soon moved to the Alaska Senate and was referred to the State Affairs Committee. The Senate, however, was led by President Don Bennett (R-Fairbanks) who wanted to put off consideration of the bill until 1986, noting that Sheffield's bill was "too complicated and politically charged to be solved in two months." The State Affairs Committee chair, moreover, was Mitch Abood (R-Anchorage), who had submitted a subsistence bill (SB 320) that differed significantly from the House-passed bill. Abood, whose views on the subject were similar to those of the Alaska Outdoor Council, refused to move HB 288, and the legislature took no further action on it before it adjourned for the year on May 12. [7]

A month after the legislature adjourned, on June 10, the game board met again and began reworking the subsistence regulations. On June 21, it completed its task and issued a series of emergency rules regarding the newly developed system. [8] It also announced that more than fifty of the newly improvised Tier II hunts would be held during the late summer-early fall hunting season. The key qualification for inclusion in a Tier II hunt, according to the new criteria, was local residency; urban residents would have a preference for hunts held near the state's large urban areas, while rural residents were similarly favored for hunts held in units away from the road system. The urban sport-hunting establishment howled in protest at the game board's decision; the executive director of the Alaska Outdoor Council, for example, complained that board's action "infuriated many hunters throughout the State who were suddenly excluded from participating in popular big game hunts." [9]

In response to the legislative impasse, Governor Sheffield met with Assistant Interior Secretary William Horn on August 19 to sound out the federal government's next move. Horn's answer came a month later, on September 23, when he informed the governor that Alaska's subsistence program was no longer in full compliance with the requirements of Title VIII of ANILCA. Alaska, Sheffield was told, would have until June 1, 1986 to bring its subsistence management program into compliance with ANILCA. If the state was unable to do so, the federal government would be forced to assume administration of subsistence use on Alaska's federal lands. [10]

Given that ultimatum, the legislature attempted to formulate a bill that would combine the federal government's demand for a rural preference with conditions compatible with the state's own interests. Senator Abood, who had played a major role in derailing HB 288 in the 1985 legislature, frankly stated that the problem lay in the "outdated" definitions of rural and urban residency originally promulgated in ANILCA. "How can you say today that everything is rural but Anchorage, Ketchikan and Fairbanks?" Abood asked rhetorically. Kenai and Soldotna, he added, may well have been rural in 1970 or 1975; now, however, more roads and an increased reliance on air transportation were blurring the distinction between rural and urban settings. [11]

When the legislature convened again in January 1986, legislators—recognizing the unpalatable downside—vowed to pass, by June 1, a version of HB 288 that would satisfy federal regulators. On March 5, the federal government weighed in on the legitimacy of that definition; Assistant Interior Secretary Horn flew in from Washington and testified that "In my opinion, the pending bill [SCS CSHB288] would be certified by the Department of the Interior." [12] A week later, the Senate Resources Committee held a hearing on the bill and emerged with two key definitions that would remain unchanged after that day. The committee now defined a rural area as "a community or area of the state in which the non-commercial, customary and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy of the community or area." The bill also provided a new definition of "subsistence uses;" they were "the noncommercial, customary and traditional uses of wild, renewable resources by a resident domiciled in a rural area of the state." Finally, the bill provided a new method (a revision of the 1978 bill) by which subsistence resources would be allocated in the event of a shortage. The Resources Committee approved the bill on April 15. [13]

The bill was then referred to the Senate Judiciary Committee, chaired by Patrick Rodey (D-Anchorage). During the committee's deliberation, Sen. Rick Halford (R-Chugiak) inserted an amendment linking subsistence with economic need, and the committee passed the bill (which included Halford's amendment) on April 19. Halford, an advocate of sport hunting interests, inserted this "needs-based" approach because it allowed access to subsistence resources by urban as well as rural residents. (Halford maintained that "many Alaskans are frustrated by the subsistence law" and that passage of a rural-preference bill "will mean more court cases, more dividing of the people of Alaska and continued conflict.") Interior officials made it known, however, that Halford's provision violated federal law and that they would not accept any bill that did not include a rural preference. The bill then moved to the Senate floor, where a key vote was to take place. Would a "needs-based" approach, or a rural preference, survive in the final Senate bill? Senator Stevens's advice to the legislature was simple; adopt a rural preference or face a federal subsistence takeover. [14]

Robert E. Gilmore, in the spring of 1986, was the U.S. Fish and Wildlife Service's regional director for Alaska. In that capacity, he came within an eyelash of assuming administrative control over Alaska's subsistence harvest. On May 10, however, the Alaska legislature passed a revised subsistence law, and the state retained management authority. ADN

On Friday, May 9—just a few days before the legislature adjourned for the year—two key subsistence-related events took place. Federal officials, preparing to assume subsistence management duties if the state legislature failed to pass an appropriate bill by June 1, announced that they had recently created a five-person Subsistence Resource Management Board, which consisted of "top officials" of the Bureau of Land Management, National Park Service, Bureau of Indian Affairs, Forest Service, and Fish and Wildlife Service. Robert Gilmore, Regional Director of the Fish and Wildlife Service and chair of the new board, stated that "it is our intention to make the transition from state to federal management as simple and cost effective as possible," and he also said that "we will do everything in our power to open federal lands to hunting and fishing seasons as Alaskans have come to expect." But lacking other alternatives, he noted, federal officials "must nevertheless proceed in the development and implementation of a federal subsistence management program." [15]

That step, however, proved unnecessary because of action taking place in Juneau. That same day, Governor Sheffield's subsistence bill—by now somewhat modified, as noted above—was finally considered on the Senate floor. In a key vote, the Senate voted 11-9 to reject the Judiciary Committee's version of the bill. It then voted 13-7 to adopt the Resources Committee's version. Several amendment's were then offered on the Senate floor, a key one (by Sen. Jack Coghill) being a personal use amendment that was similar to Halford's needs-based approach. [16] Coghill's amendment was rejected on a 10-10 tie vote; shortly afterward, the Senate passed the Resource Committee's version of the subsistence bill, 12-8. [17] House concurrence with the Senate bill followed a day later, and Sheffield signed the bill into law on May 30. [18] Rep. Jack Fuller (D-Nome), who for years had been closely following subsistence issues, noted that "the bush is very comfortable with the bill. It's taking us back to 1984 where we were before Madison." Shortly afterward, the rural definition was incorporated into the state statutes, and the game board repealed the Tier II regulations, established in December 1981, that had been used on various hunts beginning in April 1985. [19]

The state's action, taken just three weeks before the June 1 deadline, guaranteed that subsistence would continue to be a state-managed activity for the foreseeable future. The legislature, at long last, had crafted a subsistence statute that would hold up in state court as well as keep the state in compliance with ANILCA. The program that resulted from that law promised to give priority to customary and traditional uses of fish and wildlife by residents of rural communities and areas.