Alaska Subsistence A National Park Service Management History

D. SRC Recommendations: Eligibility Issues

One of the most commonly discussed themes by the various SRCs dealt with eligibility issues. Titles II and VIII of ANILCA, combined with the June 1981 regulations that helped codify Title VIII, made it clear that potential subsistence users of Alaska's national park units needed to satisfy two basic criteria. First, individuals needed to reside in a part of Alaska judged to be rural, according to the Alaska Joint Boards of Fisheries and Game. Second, depending on where they lived, potential subsistence users needed to satisfy one of two other criteria. They must live in one of several designated resident zone communities; these communities were defined as those which contained "significant concentrations of rural residents ... who have customarily and traditionally engaged in subsistence uses within a national park or monument." If they did not live in such a community, they could legally harvest park or monument resources by obtaining a subsistence permit (also known as a 13.44 permit). In order to obtain such a permit, an individual or members of his or her family needed to demonstrate that they "customarily and traditionally engaged in subsistence uses within a national park or monument."

Given the scope of Section 808, the SRCs felt free to tinker with eligibility requirements so long as their recommendations did not run contrary to the above regulations. Given that latitude, the SRCs considered the following five ideas in their eligibility recommendations: 1) adding or deleting specific resident zone communities, 2) creating a large, communal resident zone for a network of communities that shared specific cultural characteristics, 3) drawing boundaries around residential zone communities, 4) establishing community-wide subsistence permits in communities anticipating growth, and 5) applying a cut-off date after which new residents would be ineligible to harvest subsistence resources. These five ideas will be discussed in the order presented.

1. Adding or Deleting Resident Zone Communities. Because public hearings in both 1979 and 1981 had given both the NPS and the public ample opportunity to help decide which communities should be resident zone communities, most SRCs felt little need to modify the established list of eligible communities. Several SRCs, however, moved to expand that list. In March 1985, for example, the Aniakchak SRC voted to add Pilot Point and Ugashik to the list because residents of those communities "have traditionally used the monument for subsistence purposes." And five months later, the Wrangell-St. Elias SRC voted to add Northway to the eligibility list because the village "has always utilized the resources from the park and preserve for subsistence purposes. Their use was customary and traditional and this Commission believes their omission on the resident zone list was an oversight." Members of the Wrangell-St. Elias SRC also discussed eliminating a resident zone community—Slana, during an April 1986 meeting—but the idea was never put forth as an SRC resolution. [62] Interior Department officials, asked to respond to the Aniakchak SRC's resolution, noted that

to date, the Service has no indication from the residents of Ugashik or Pilot Point that they have any interest in subsistence hunting within the monument or that they have a history of customary and traditional subsistence use within the monument. No one in either of these communities has ever requested a permit to subsistence hunt or trap within Aniakchak. Until a request for resident zone is made by these communities, the National Park Service will not explore further designating them as resident zone communities for Aniakchak National Monument. The residents will continue to be eligible for subsistence hunting by permit. [63]

The Wrangell SRC's recommendation to the Interior Secretary regarding Northway brought forth an almost identical response; because "the Service has had no indication from the residents of Northway that they have any interest in subsistence hunting within the park," a May 1988 letter noted, "the NPS will not further explore designating it as a resident zone." Both letters noted that the NPS, prior to allowing a new resident zone community, would need to determine that a "significant concentration" of permanent residents had a history of customary and traditional subsistence use in the local park unit. [64]

McCarthy, Alaska, as seen in this June 1980 aerial view, is a resident zone community for Wrangell-St. Elias National Park. NPS (ATF), Box 2

Underlying the stark differences between the SRCs' and the NPS's positions were major differences in perception, plus a lack of broadly-available knowledge about local subsistence activities. The NPS's refusal to grant new resident zone communities was a sound decision, based on a prima facie evidence. But the lack of subsistence permit requests did not necessarily indicate that residents from these three communities did not harvest subsistence resources from a park unit (or wished to do so). Rural Alaskans, both Native and non-Native, have long shunned regulations in any form—they have often been less than enthusiastic, for example, about obtaining fishing and hunting licenses—and considering the relatively new presence of the various NPS units, it is perhaps not surprising that park-area subsistence users were reluctant to apply for so-called 13.44 permits. While the NPS's refusal to approve of the new resident zones may have been logical based on the existing evidence, the agency's action doubtless rankled both SRC members and other area subsistence users because it underscored the government's lack of willingness to fully understand the vagaries of subsistence harvesting.

SRC members, as it turned out, gave a mixed reception to the Interior Secretary's refusal. The Aniakchak SRC chair's response, at a January 1990 meeting, was a promise to discuss the matter further with Ugashik and Pilot Point village council representatives; after that meeting, the matter was effectively dropped because more than two years elapsed until the next SRC meeting. [65] But the Wrangell-St. Elias SRC, which held its December 1989 meeting in Northway, re-submitted a resolution on the Northway resident-zone issue that was almost identical to its 1986 resolution. In the resolution's justification, the SRC noted that the meeting was "apparently the first time any NPS staff had traveled to Northway and been available to discuss Park Service regulations including subsistence eligibility. Many Northway residents probably were unaware of the permitting process and about their being prohibited from hunting in the park without a subsistence permit." At the meeting, "several local residents testified to their use of some areas in the park and preserve," and Commission members "noted the reluctance of some residents, especially elders, to reveal all areas they use for subsistence purposes to outsiders." [66]

2. The Communal Resident Zone Idea. A high-profile issue for two of Alaska's SRCs during the 1980s was a proposal to create a single, large resident zone for a series of communities in northwestern Alaska. The NPS regulations, passed in 1981, had made no explicit provisions for such a zone; instead, both Congress and the Interior Department had made it clear that resident-zone determinations would be made on a community-by-community basis. Recognizing that Cape Krusenstern National Monument had three resident-zone communities, all located fairly close to its borders, NPS staff in May 1984, using an "arbitrary definition, ,,, drew a line from Cape Krusenstern to the furthest village (Kotzebue) and anyone living that far away from the monument all the way around is automatically considered a local rural resident." At the same meeting, however, commission members recommended—based on regional cultural and linguistic similarities—that Cape Krusenstern and Kobuk Valley SRC members "get together with Northwest Areas [NPS staff] and coordinate the subsistence hunting program." [67]

At a February 1985 joint meeting of the Cape Krusenstern and Kobuk Valley SRCs, one SRC member suggested that Noatak and perhaps other villages be added to "the Kobuk Valley list," which "would allow for annual migration and seasonal patterns of wildlife and fishing." Soon afterward, however, that suggestion was expanded upon; it was suggested that "everyone who resides in Game Management Area 23 [which included the three Northwest Areas parks plus a large amount of adjacent territory] be allowed access to the parks based on the common knowledge that in the past[,] residents have subsistence hunted and fished in these areas as a tradition." Later in the same meeting, a suggestion was "also made that the present resident zone be changed to include all of the NANA region." (The boundaries of the Northwest Alaska Native Association region, which was one of the thirteen ANCSA regional corporations, were roughly similar to Game Management Unit 23, although NANA's boundaries were based more on legal descriptions than on rivers and drainage divides.) [68]

A year later, at another joint Cape Krusenstern-Kobuk Valley SRC meeting, the assembled members passed a joint resolution "that the resident zones for the Kobuk Valley National Park and Cape Krusenstern National Monument coincide with the political boundaries of what is known as the NANA region." Among the reasons for their action were that "the people of the NANA region consider themselves a cohesive social and cultural unit with an ancient history of residency," that "the residents of the NANA region have historically been a highly mobile people moving between and maintaining relationship within all the villages of the region," and that "the general sparseness, seasonal availability, and unpredictability of local wild resources requires subsistence users to pursue subsistence resources without regard to jurisdictional boundaries." [69] This resolution was sent to appropriate state and local groups, and in February 1986 it was discussed at public meetings held in "five strategically located communities with[in] the NANA Region." Five months later, NPS official Ray Bane reported that local residents had provided "no substantial negative feedback" to the proposal, and the joint SRCs got ready to forward an amended resolution to the Interior Secretary. [70] Thereafter, however, the commission chairs dragged their feet on the matter; at the July 1987 joint SRC meeting, it was noted that Walter Sampson (the Kobuk Valley SRC chair) had signed the resolution but Frank Stein (the Cape Krusenstern chair) had not. A reluctant Stein continued to waffle on the issue for the rest of the decade; as he noted at a July 1989 meeting, he may have delayed doing so in order to see how the Interior Secretary responded to other SRCs' recommendations. [71] Regardless of the reason, the communal resident zone idea—which by all accounts enjoyed broad regional support—had not been submitted to the Interior Secretary by the end of the decade.

3. Resident Zone Community Boundaries. An issue that many SRCs grappled with during the 1980s was whether boundaries should be applied around resident zone communities. The June 1981 regulations defined resident zone communities as having "significant concentrations" of subsistence users of a nearby park or monument, but they offered no direction regarding who would decide where community boundaries should be located. In the case of incorporated towns, the town's boundaries normally served this purpose, and in some unincorporated communities an "easily identifiable population cluster" provided a clearly-defined ad hoc boundary. But in other areas, poorly-defined population clusters made community identification (and thus a definition of just who lived in the various resident zone communities) a difficult task.

Most SRCs did not deal with this issue during the 1980s, because there was little pressure or need to do so. But in areas experiencing actual or anticipated growth (see Table 6-1), defining a resident zone community's boundaries was one method by which existing residents could protect their access to subsistence resources from newcomers moving into a community's periphery. (Another way to protect this access was to adopt a community-wide permit system or roster. This method is discussed below.) At Cantwell, one community where several large development projects were in the offing, the NPS had drawn a boundary back in 1981-82, before the SRCs had become active. That boundary was set at a three-mile radius from the town's post office. In May 1984, the Denali SRC at its initial meeting concurred with the boundary that the NPS had established. [72] Lake Minchumina, another Denali resident zone community, moved to establish a community boundary several years later. As noted below, local SRC members responded to an anticipated residential influx by suggesting a community-wide permit system. But in January 1986 the local fish and game advisory committee objected to the idea. To resolve the issue, an April 1986 public hearing was held at Lake Minchumina, where local people instead recommended a community was held at Lake Minchumina, where local people instead recommended a community boundary that would reach from one to three miles from the lakeshore. The Commission, acting on those suggestions, recommended a 1°-mile distance "because this includes the homes of all the present local residents, and excludes more distant areas where [recent] land sales have taken place or are proposed." [73] This recommendation was forwarded to Interior Secretary Hodel three months later. The department, in its April 1988 response, noted that the SRC's action was "a solid recommendation that should serve to maintain the integrity of the subsistence lifestyle and culture of the Lake Minchumina community, assuming that the permanent population of the community remains relatively stable." Some observers—most notably Jack Hession, of the Sierra Club's Alaska office—urged the establishment of resident zone boundaries throughout the state, and NPS subsistence staff also encouraged the SRCs in this regard. The SRCs, however, appear to have acted only when either real or potential growth threatened an area's access to nearby subsistence resources. [74]

Boyd Evison, the NPS's regional director for Alaska from 1985 to 1991, made significant decisions related to resident zone boundaries, airplane access, and other subsistence-related matters. NPS (AKSO)

Wrangell-St. Elias was the only other park for which resident zone boundaries were considered. Here, however, a suggested direction came from Interior Department officials, not from the SRC. The NPS, perhaps unwittingly, had made the first move toward defining park-area resident zones in August 1985, when an unknown NPS official had stated that any resident that lived "50 miles from [the] park border qualifies as [a] subsistence user." NPS Regional Director Boyd Evison, in a November 1985 letter, attempted to shed light on the subject; in response to the Service's purported establishment of a "larger, all-encompassing resident zone by drawing a line from Tok [then] generally along the Glenn and Richardson Highways, then south around the southwestern boundary of the park/preserve," Evison forthrightly stated that this notion was "not related to any designated resident zone but has been used as a general 'rule-of-thumb' in determining local rural residency for subsistence permit applications." [75] The park SRC's various recommendations provided no further direction on this subject. Regional officials, however, felt that additional information was needed on the subject. In an October 1987 briefing paper, subsistence coordinator Lou Waller noted that because

growing settlement along the highway [system] has made it increasingly difficult to delineate clear community boundaries ... an unwritten policy has evolved identifying all of the highway communities and residents along the Copper River drainage as a single large resident zone. While not intentional, this policy can be seen as contrary to both congressional intent and NPS regulations.

To remedy the situation, Waller recommended that "the boundaries for all unincorporated resident zone communities must be defined by each affected park superintendent," although "the park Subsistence Resource Commissions may be involved in this process." [76]

Waller's concerns were passed along to the Interior Department. In its April 1988 response to the SRC recommendations, the department's Acting Assistant Secretary included many of those concerns. After noting two new construction projects in the area and their anticipated demographic impacts, the Secretary's representative noted that "unless resident zone boundaries are conservatively established or communities are eliminated from resident zone status, all of these 'new' people will be eligible to hunt, fish and trap within the park." [77] The Wrangell-St. Elias SRC, however, was unswayed by such arguments. During its December 1989 meeting, the commission "reiterated [its] 1988 determination that the resident zone communities of Wrangell-St. Elias [have] not significantly changed, thus no change is necessary to further restrict eligible residents (such as the Park Service suggestions to define boundaries...)." [78]

4. The Community-Wide Permit Idea. Another issue related to eligibility was whether, and to what extent, communities experiencing actual or anticipated growth should adopt a permit system in order to protect access to subsistence resources for long-term residents. NPS officials, during several of the introductory SRC meetings during the spring of 1984, were quick to offer this alternative; at the first Gates of the Arctic SRC, for example, commission members were told that "When a community significantly changes in character it is to be re-evaluated for eligibility. If it has changed significantly enough, it should be removed from the list of designated resident zone communities and individual permits would be issued." [79]

Two SRCs, in response, showed immediate interest in such an alternative. At Denali, as noted above, NPS officials had responded to potential growth challenges several years earlier by establishing a boundary around Cantwell, a motion with which the newly-formed SRC concurred shortly after it became a working entity. Thus it was no surprise that Denali SRC members, in June 1984, prepared a "proposed recommendation regarding subsistence zones" and specifically urged that "for the communities of Lake Minchumina and Cantwell, the resident zone designation be dropped and subsistence use in the park additions be implemented by use of an individual permit system." Such an action was suggested because the resident zone designation at these two communities "is not working" and because "some subsistence users and members of the Subsistence Commission" were concerned about the impacts of an "influx of new residents" upon subsistence resources. [80] Cantwell residents were worried (as they had been since 1981-82) about the proposed Susitna Dam development, Healy-Willow Intertie project, and Valdez Creek mining development, while Lake Minchumina residents were concerned about a spate of new land sales in the area. A year later, the SRC voted to recommend that both Lake Minchumina and Cantwell be changed to a permit system. [81] As noted above, meetings at Lake Minchumina in January and April 1986 resulted in a withdrawal of the SRC's recommendation for that community (and the imposition of a community boundary in its stead), but the proposal for Cantwell met with widespread local approval. In July 1986 the SRC forwarded it to Interior Secretary Hodel; the proposal noted that "in order to preserve the natural and healthy wildlife populations there, we feel that hunting and trapping should be limited to local residents who have traditionally used the area, and that this can be done most effectively by using the permit system." [82] The NPS, in an initial response, noted that the SRC's "concept is solid," and the Interior Department, in its formal response, was similarly approving; it stated that "the Commission's recommendation is consistent with Congress' intent to protect opportunities for the subsistence lifestyle by local rural residents." The department noted that "Congress intended the Service to avoid initially the use of subsistence permits or other devices that focus on individuals rather than communities. Congress also recognized, however, that significant post-ANILCA alterations in the composition of a community could warrant a shift to a permit system or other individual-based system for determining subsistence eligibility." [83]

Lake Clark was the other SRC that acted upon the community-wide subsistence permit idea. The Port Alsworth area, at the time, was experiencing increased land sales at the Keyes Point development, and the park SRC was worried about similar real estate ventures. In response to these growth pressures, the SRC at its second (November 1984) meeting wrote up a draft hunting plan recommendation, a major part of which dealt how local subsistence users could deal with "the potential for rapidly increasing full time and seasonal populations within resident zones." To guarantee continued access to subsistence resources, the SRC planned to "meet with village leaders and traditional councils to determine those within the [park's] resident zones having established ... a history of [customary and traditional] use. A list of those individuals and families having established such use will be prepared and posted in the Post Office of each village for a period of 30 (thirty) days." The commission passed this recommendation in August 1985 and sent it out for comment; seven months later, the unmodified document was forwarded to the Interior Secretary. [84] Alaska's Fish and Game Commissioner Don Collinsworth, who commented on the SRC's recommendation later in 1986, generally approved of the idea of roster regulations (they seemed "completely consistent with the intent of Congress," in his opinion), and Governor Sheffield, who also commented that year, was noncommittal on the subject. Perhaps based on those opinions, the Interior Department approved of the concept of a community-wide permit system for four Lake Clark-area communities (Iliamna, Newhalen, Nondalton, and Port Alsworth), much as it had for one Denali-area community (Cantwell). [85]

The Interior Department's approval letters to both the Denali and Lake Clark SRCs indicated that the two recommendations would not become federal regulations until rulemaking was completed, and the SRCs were warned that the process "can be somewhat lengthy and involved." [86] To facilitate the process, NPS officials met with Denali SRC members in July 1988 to develop draft regulations. But just three months later, the process was thrown into disarray when Collinsworth, in an apparent about-face, formally objected to the roster idea. (He may have done so because Steve Cowper, who became Alaska's governor in December 1986, did not share the same opinions on the subject as his predecessor.) [87] In August 1989, Cowper elaborated upon the state's objection to the idea of a community-wide subsistence permit system. He gave three reasons for his decision:

First, the responsibility for regulating subsistence use lies with the State, and the NPS has not availed itself of our regulatory process to address this issue. Second, the substance of the proposal is not justified by the facts. Third, the proposal would foster divisiveness in rural communities at a time when the State is working hard to minimize conflicts among subsistence and other resource users.

The state's position, an apparent reversal of the views it expressed three years earlier, was clearly based on the state's unwillingness to allow federal limitations on subsistence access. Because the state had previously weighed in on the concept, and because Cowper's letter was written more than a year after the Interior Department's approval, Interior officials were not obligated to respond. The letter's practical effect, however, was to cloud an already murky picture. [88]

As the decade ended, the issue of community-wide subsistence permits (by now called "roster regulations") was still in limbo. The NPS, which had been tasked by the Interior Secretary to prepare such a regulation, had made little headway; state officials, from the Fish and Game Department up to the Governor's Office, were openly advocating that the SRCs move cautiously in implementing such a regulation, and as a practical matter, the lack of expected development activity in either the Cantwell or Port Alsworth areas reduced the urgency for implementing a "roster regulation." (The Denali SRC, in fact, now favored Cantwell's retention as a resident zone community rather than its adoption of a roster system, although it "still supported a regulation to create a procedural roster alternative." [89]) During the 1990s, additional decisions and interpretations would continue to refine the parameters of this theme.

5. Subsistence Eligibility Cut-Off Dates. Closely related to the idea of community-wide subsistence permits was that of cut-off dates for subsistence eligibility. Neither ANILCA nor the regulations that followed provided specifics regarding how long people needed to live in residence zone communities in order to access subsistence resources. (The only guidance in this sphere surfaced during Congressional hearings, when Rep. Udall noted that eligible residents needed to have an "established or historical pattern of subsistence use." [90] Lacking a more specific provision, existing regulations allowed such access to all residents, regardless of their length of residency.) Regarding subsistence permits, which were proposed as one way to guarantee subsistence access to "customary and traditional" users, neither ANILCA nor its accompanying regulations gave specific advice on how these users might be defined; in the absence of such advice, the various SRCs addressed this topic in various recommendations that were submitted to the Interior Secretary.

The idea of a cut-off date for subsistence eligibility was first addressed at the initial meetings between SRC members and NPS staff; as noted in the minutes of the first Wrangell-St. Elias SRC meeting, Commission member Bob Anderson stated that "there should be some type of cut off date for the qualification of subsistence hunting. [Mr. Anderson's] opinion was there had to be a stopping point somewhere." The SRC openly wondered what cutoff date should be used; in response, Interior Department solicitor Jack Allen noted in November 1984 that "the cutoff date of 1978 or 1979 in the resident zones ... is feasible, but the Commission should obtain community response.... December 1980 would probably be the cutoff date, with a lawsuit being inevitable." [91] Subsistence Coordinator Lou Waller, however, recommended an earlier date. He noted that each park general management plan—which was finalized in 1984 and 1986—had a page defining "traditional;" that page noted that "traditional means" or "traditional activity" demanded "an established cultural pattern ... prior to 1978 when the unit was established." In addition, he cited the dictionary definition of "tradition" (which was on the same GMP page) and postulated that area residents needed to demonstrate a generation of use in order to be eligible to harvest park wildlife. [92]

During the mid- to late 1980s, the state's SRCs weighed in with a multitude of suggested cut-off dates for subsistence eligibility; some felt that December 1980 (when ANILCA became law) was best, while others suggested dates ranging from 1978 to 1986. Paul Starr photo

The Wrangell-St. Elias SRC, as it turned out, made no recommendations that included reference to a cutoff date, and the next SRC to discuss a cutoff date—Cape Krusenstern—considered "compiling a list of individuals who are eligible for subsistence resources and who had lived in the region as of 1979." [93]. But after February 1985, most SRC actions appeared to favor a December 1980 cutoff date. That August, for example, the Lake Clark SRC produced a draft subsistence hunting program stating that "for the purposes of subsistence hunting, ... the twin tests of domicile within a resident zone or other area within or near a park and customary and traditional use established by persons and families preceding the passage of ANILCA, December 2, 1980, will be applied." [94] In January 1986, the combined Cape Krusenstern and Kobuk Valley SRCs passed a resolution resolving that "subsistence uses of [the two park units] be limited to those persons who had their primary place of residency within the NANA region on December 2, 1980..." [95] In March 1986, the Aniakchak SRC wrote a draft recommendation (which was never finalized) urging that "the subsistence uses of Aniakchak National Monument be limited to those persons who had their primary place of residency within the local region on Dec. 2, 1980, members or their immediate families, and their direct descendants who continue to reside in the local region." [96] And later that same month, the Gates of the Arctic SRC passed a resolution stating that "in general, local residents of the region with an established pattern of subsistence use within the park prior to December 02, 1980, are eligible to continue engaging in subsistence activities in the park." [97]

Denali was the only SRC to formally recommend a non-1980 eligibility date. Back in June 1984, when the body had first addressed the issue, it had taken pains to state that

eligibility for a subsistence permit in [Lake Minchumina and Cantwell] not be limited to only those users who have or are families with established historical patterns of subsistence prior to ANILCA. A second category of user should be eligible; those who take over the subsistence uses of persons or families who cease subsistence uses, due to death, age, infirmity or move permanently from the community. [98]

Once most of the SRCs had expressed their views, the State of Alaska weighed in on the issue. In letters written in early May 1986 to at least two SRC chairs, Governor Bill Sheffield stated that "limiting participation in subsistence hunting and fishing to persons who have lived in the [park units] before 1980 may not be fair to people who have moved to the area in the last six years. A retroactive cut-off date could also present legal problems." Fish and Game Commissioner Don Collinsworth gave much the same conclusion four months later. He noted that

Assistant Secretary William Horn, testifying before the Alaska Senate Resources Committee on March 5, 1986, indicated that Congress expressly rejected the use of fixed cut-off dates for identifying who would be eligible to participate in subsistence uses. The Alaska Department of Law has also indicated that they feel that this approach would not be upheld in court, because people who have moved into the areas between 1980 and the present may well have to rely on the harvest of fish and game. [99]

Federal authorities, confronted with the threat of a lawsuit, appear to have ignored the state's pleas, primarily because many NPS officials felt that setting some sort of cutoff date was a logical way to stabilize hunting pressure in the parks. [100] Given the necessity of a cutoff date, the day of ANILCA's passage—however arbitrary—appeared to be more legally defensible than any other. Perhaps as a result, the Interior Department accepted the ANILCA cutoff date as proffered by both the Lake Clark and Gates of the Arctic SRCs. [101] The Interior Department was also agreeable, however, to a non-ANILCA cutoff date under certain circumstances; regarding the Denali SRC recommendation, it readily accepted the notion of a April 17, 1986 cutoff date for determining Cantwell residents' eligibility for subsistence harvests, inasmuch as the SRC mailed its recommendation to the Interior Secretary on that date. [102]