Alaska Subsistence: A NPS Management History (Chapter 6)

Chapter 6:
MANAGING ALASKA'S SUBSISTENCE PROGRAM, 1985-1989 (continued)

Beyond questions of eligibility, access was a major theme of interest to the new subsistence resource commissions. The Alaska Lands Act, and the regulations that followed in its wake, gave some direction on how specific access-related problems might be resolved, but in other areas the SRCs were able to provide some management and policy direction. A host of questions were raised about both aircraft access and surface access, and a dilemma related to surface access at one park unit led to serious discussion of a land trade. These subject areas—aircraft access, surface access, and the proposed land trade—will be discussed below in the order presented.

Title VIII of ANILCA gave some direction regarding subsistence access. Section 811 stated the following:

ANILCA did not specifically refer to the legality of aircraft access (which, because it was not a form of "surface transportation," was not subject to clause (b)), but the legislative history discussed the subject in some detail. On the House side, Representative Morris Udall stated that

This verbiage answered many questions; left unanswered, however, was the all-important question regarding whether the agency would allow exceptions to its no-airplanes-for-subsistence policy other than the two cited above. In the meantime, the NPS's ad hoc "good neighbor" (i.e., non-enforcement) policy during the years that immediately followed ANILCA created the impression, at least in the minds of some rural residents, that the agency might continue such a policy for the foreseeable future.

Charles Budge, who served as the first superintendent of Wrangell-St. Elias National Park and Preserve, made a key decision on subsistence aircraft access that was later overturned by the agency's regional director. NPS (AKSO)

One of the first major policy disputes in the access arena flared up in the summer of 1985. Members of the Wrangell-St. Elias SRC that summer squared off with NPS and other federal officials over whether subsistence users could legally access the park by airplane for subsistence purposes. In the Wrangell-St. Elias area, hunters had been using aircraft to harvest wildlife, for what they claimed were subsistence purposes, for several years prior to ANILCA's passage. But neither the legislative history that accompanied ANILCA nor the regulations that followed its passage specifically validated their usage patterns. [104] Wrangell-St. Elias's first superintendent Charles Budge, perhaps recognizing the strong anti-park sentiment among a number of area residents, made no overt moves to curtail subsistence-related aircraft access during the early 1980s. And as if to condone such activities, Budge wrote subsistence user Sue Entsminger in February 1984 stating that

Shortly after Budge wrote his note, however, the NPS's attitude toward aircraft access began to shift. Perhaps it was a changing of the reins at Wrangell-St. Elias (where Richard H. Martin assumed the superintendency in February 1985), perhaps it was the existence of a full-time subsistence coordinator (Lou Waller), or perhaps it was a belated recognition—more than four years after ANILCA—that it was time for the NPS to begin enforcing its regulations. Whatever the reason, the product was a July 2, 1985 letter from Regional Director Roger Contor to various park superintendents concerning aircraft access. Written in response to a letter from Sue Entsminger "requesting additional information regarding aircraft access for subsistence hunting in the National Park System areas in Alaska," Contor's letter was clear and unequivocal:

W. T. Ellis, who served as chairman of the Wrangell-St. Elias SRC, was staunchly opposed to Contor's interpretation of the regulations as they pertained to aircraft access, [107] and on August 2 the park's SRC submitted two hunting plan recommendations on the issue. The first, an "emergency recommendation," stated that because Contor's letter represented "a permanent change in access for the Wrangell-St. Elias area," the NPS should therefore be required to proceed with closure regulations, which included a 60-day public comment period and public hearings in the affected area. The SRC, by taking this action, hoped to derail or at least delay the implementation of Contor's letter, inasmuch as hunting season was set to begin on August 10. The second recommendation, which the SRC passed on the same day, was more generic; it recommended "the use of aircraft as the primary means of reasonable access for subsistence hunting and trapping as there is only 100 miles of roads available for access into 13 million acres of hunting area." [108]

Federal officials, however, took exception to both of the SRC's recommendations. In a letter to the SRC chairman, Assistant Secretary William Horn stated that the July 2 memorandum was "considered by the Department of the Interior to be a formal written correction to a previous and incorrect interpretation" of an existing federal regulation prohibiting aircraft use in Alaskan national park units. [109] In a separate letter, Horn rebuffed the other SRC's recommendation as well; although he recognized that "it would be more desirable to use aircraft to hunt [wildlife for subsistence purposes] inside the park, ... this is totally inconsistent with Congressional intent. ... If [aircraft] is used primarily for the purpose of subsistence hunting, then that is clearly not allowed." [110] To set the record straight, each person given a Tier II permit to hunt caribou in Game Management Unit 11 "was mailed a letter briefly explaining the regulation and several news releases have been issued on this and related subjects." NPS officials also held a September 9 public meeting at the park's Glennallen headquarters; significantly, however, no local residents attended the meeting. [111]

Byron Mallott has been a Native leader since 1965 when, as a 22-year-old, he was elected Yakutat's mayor. Due largely to testimony that Mallott made to a Congressional panel, NPS officials allowed the use of airplanes to access the Malaspina Forelands area (in Wrangell-St. Elias National Park) for subsistence purposes. ADN

Members of the park's SRC, obviously miffed at both of the Interior Department's decisions, charged that the NPS hoped to "run the Alaska parks as they do in the lower 48" by "eliminat[ing] use of the Parks and Preserves by people as much as possible;" furthermore, it wanted to "restrict human use and participation to small segments of lands, located adjacent to the road system, where every move by humans is regimented and well regulated." [112] Beyond their rhetorical bravado, however, SRC members pressed Interior officials on one specific point; could they prove the legality of their decisions? Contor's July 1985 memo had been "confirmed verbally" by Interior Department solicitors, but in an October 4 letter, chairman Ellis requested a copy of a solicitor's opinion on the subject. Perhaps in response, Interior Department Solicitor F. Christopher Bockmon reviewed Contor's memo, both of Horn's letters, and other pertinent documents, and in an April 2, 1986 memorandum he concluded that both Contor and Horn were correct. Bockmon noted that the NPS could "clearly ... prohibit a person wishing to engage in subsistence hunting or fishing from landing along side a park or monument boundary or within an inholding within the park or monument and subsistence hunting within the park or monument." [113]

Although actions by the Wrangell-St. Elias SRC provided the basis for Interior Department decision making as it pertained to aircraft access for subsistence purposes, subsistence users throughout the state were intrigued by the controversy. At Aniakchak National Monument, for example, SRC members in March 1985 had passed a resolution asking that aircraft access be allowed for subsistence purposes. To justify their action they noted that "aircraft have been used by local residents in the area adjacent to the monument for approximately 30 years. The people rely upon aircraft as a means of access to subsistence resources throughout the region and recommend that this same use should be allowed within the monument." [114] A year later, the Gates of the Arctic SRC passed a similar resolution "allowing aircraft access inside [the park] in certain areas." The resolution noted that "There are some families who have had prior use of aircraft in the park before the park was established; and these families used the aircraft to get to areas otherwise inaccessible by ground transportation, and the areas where they hunted were used mainly by them." [115] Subsistence users in both of these parks were no doubt chagrined to hear that Department officials had all but eliminated aircraft access for subsistence purposes at Wrangell-St. Elias. At Aniakchak, the SRC's recommendation was passed on to the Interior Department, which (as expected) refused to sanction aircraft access. It noted that only "extraordinary circumstances could warrant the use of aircraft for subsistence purposes. [But] At present, such circumstances do not exist in Aniakchak National Monument." The Gates of the Arctic SRC, perhaps mindful of decisions made at Wrangell-St. Elias on the subject, modified its original (March 1986) recommendation, and in its recommendation to the Interior Department asked that the aircraft-access regulations "not be interpreted by the NPS as restricting in any way travel of local rural residents on scheduled air carriers between villages in or near the park." The Interior Department rejected that recommendation as well because it "would presumably take a person out of his community's traditional use zone and into that of another. This could prove detrimental to the satisfaction of subsistence needs of local residents..." [116] During the mid- to late 1980s, both park superintendents and regional officials received a number of letters from longtime subsistence users protesting the Department's aircraft access policy; to judge by the number and intensity of these letters, aircraft access appeared to be one of their most unpopular policies applied to Alaska's newly-established national park units.

NPS officials, recognizing the unclear nature of the 1981 aircraft access regulations as they pertained to the national parks and monuments, pressed Interior Department solicitors in early August 1985 for answers to similar questions as they pertained to the national preserves. Did the existing regulations, for example, allow the agency to legally prohibit aircraft access to preserves for the purpose of subsistence hunting within the preserve? And if not, what actions would be necessary to extend to the agency such an authorization? At a September 5 meeting, solicitor Chris Bockmon told NPS officials that the agency currently had no power to issue such a prohibition and that a new regulation would be necessary to create such an authority. Bockmon, however, was asked not to respond in writing to the request for a legal opinion. [117]

Another knotty question with which the NPS grappled during the mid- to late 1980s was how to manage the use of all-terrain vehicles (ATVs) by subsistence users. Outsiders often had unrealistic notions regarding how rural Alaskans traveled to access the wildlife and fish they harvested; romantic notions suggested foot travel, oar-powered boats and dog teams, but the reality was that by the late 1970s such innovations as motorboats, snowmobiles and ATVs were either replacing or supplementing earlier transportation modes. [118] In recognition of these new technologies—and in anticipation of technologies yet to come—ANILCA's legislative history recognized "the importance of snowmachines, motorboats, and other means of surface transportation traditionally employed for subsistence purposes on the public lands." It further noted that the bill's provisions were "not intended to foreclose the use of new, as yet unidentified means of surface transportation, so long as such means are subject to reasonable regulation necessary to prevent waste or damage to fish, wildlife or terrain." [119]

In ANILCA's legislative history, Congress expressly stated that snowmachines would be a valid means of access for subsistence harvesting. Interior Department regulations, passed in 1981, similarly declared that such uses would be permitted in park areas. NPS (AKSO)

The verbiage in the legislative history helped form the basis for the 1981 regulations, which noted (in Title 36 CFR, Section 13.46(a)) that "the use of snowmobiles, motorboats, dog teams and other means of surface transportation employed by local rural residents engaged in subsistence uses is permitted within park areas...." Against the objections of an environmental group, which noted that off-road vehicles were "abhorrent to the notion of subsistence hunting," the Interior Department allowed its use in accordance with Section 811 of ANILCA. And the NPS took a similarly dim view of another environmental group's suggestion to limit ATV use to local rural residents who could prove "traditional use." [120] In this issue, as in others, policy that had not been clearly laid out in the regulations was decided upon by two entities: the NPS and the various SRCs. The NPS's only agencywide guidance on the subject, at the time, was an executive order, first issued in 1972, that was applicable to all public lands. [121] Given that lack of policy, tensions soon surfaced. This was because many entities—state agencies, the Citizens' Advisory Commission on Federal Areas, SRC members, and many other local users—favored the legitimization of ATV use in the parks, both to ensure the continuation of existing travel patterns and because of its practical utility in the largely unroaded Alaskan bush. NPS personnel, on the other hand, had little sympathy for ATV use and often looked for opportunities to curtail such activity.

Based on various master plans and environmental statements that the agency had completed prior to the passage of ANILCA, NPS officials recognized that ATV use was widespread in several new or expanded park units. After a brief "honeymoon period," in which the agency made no moves to sanction or restrict ATV use, the NPS established a long-term ATV policy.

Two actions, both taken during the mid-1980s, shaped that policy: the completion of the various park general management plans (GMPs) and various SRC resolutions on the subject. Taken in retrospect, it appears that the GMPs—and the various public comments that preceded the December 1986 final plans—were a stronger determinant of NPS policy toward ATVs than any actions taken by the various SRCs.

One of the agency's first policy statements on the issue—and, as it turned out, one of its most broad, comprehensive statements on the issue—was made at the first meeting of the combined Lake Clark and Denali SRCs in May 1984. Lake Clark National Park and Preserve, at the time, was well on its way toward completing its general management plan (its GMP apparently served as a pilot study for the ANILCA parks), and the comments made at that meeting were broadly applicable to each of the ANILCA parks. An unnamed NPS official at the meeting noted that

NPS officials, during this period, were quick to note that ATV use varied considerably. In the newly-established portions of Denali National Park, for example, they noted that "existing information indicates that specific ORV use has not regularly been used for subsistence purposes," and at Lake Clark, the NPS stated that "there is very little actual subsistence hunting within the park itself; most of the hunting is done around in the preserve." [123] Other GMPs suggested that ATVs were widely used—the Cape Krusenstern document, for example, noted that "Three-wheeled ATVs carry local residents back and forth in the villages and along the monument's ocean beaches, where only summer foot travel once occurred—"but no documents directly stated that ATVs were used for subsistence purposes. [124]

Paul Haertel served as the first superintendent of Lake Clark National Park and Preserve, from 1980 to 1987. He then moved to the Alaska Regional Office where, as Lou Waller's supervisor, he worked on many subsistence issues. NPS (AKSO)

Prior use, however, was not necessarily translated into policy. Based on language in the regulations (43 CFR 36.11 (g)(1)), several GMPs noted that "snowmobiles, motorboats, dog teams and other means of surface transportation traditionally employed" could be used for subsistence purposes. But they further noted that "any additional information about traditional means"—about ATVs, for example—"will be reviewed on a case-by-case basis." [125] Based on that process, the NPS at several parks decided to prohibit the use of ATVs for subsistence purposes. The Kobuk Valley GMP, for example, stated that

Using similar language, the NPS also concluded that the use of ATVs for subsistence use would not be allowed in Aniakchak National Monument, Gates of the Arctic National Park, or the expanded portions of Denali National Park. As a justification for these actions, the NPS—at the insistence of Regional Director Boyd Evison—quoted a legal-dictionary definition of "tradition" and noted that "to qualify under ANILCA, a 'traditional means' or 'traditional activity' has to have been an established cultural pattern, per [the definition noted above], prior to 1978 when the unit was established." [127]

At the three remaining ANILCA parks, where ORV use was more widespread, the GMPs did not state that ATVs were a traditional means of access. (At least one final GMP, in fact, noted that "three- and four-wheeled vehicles were not determined to be a traditional means of access for subsistence...". [128]) Instead, the documents tacitly condoned existing ATV use because of a lack of language expressly prohibiting the practice. At Cape Krusenstern, for example, the final GMP contained the pro forma statement that "the use of ORVs for subsistence is not allowed because the use has not been shown to be a traditional means of access." It provided a process, however, to "determine whether ATVs are traditional for subsistence" which allowed "for opportunities to review additional data." The recently-completed Cape Krusenstern land exchange, moreover, authorized subsistence on two trail easements between Kivalina and Noatak in conjunction with the Red Dog Mine road corridor. At Lake Clark, the GMP noted that most subsistence use "occurs by means of boat, three wheeler, snowmachine, and foot travel;" it then stated that "existing traditional patterns and means of access and circulation will be maintained." [129] Finally, the Wrangell-St. Elias GMP—based on an earlier finding that ATV use was a traditional activity in the park—noted that "the use of ORVs/ATVs by local rural residents for subsistence purposes may be permitted on designated routes, where the use is customary and traditional under a permit system implemented by the superintendent. ... Currently, ORV use is limited to existing routes...." These tentative approvals, moreover, were further clouded with language recognizing the environmental damage associated with ATV use and a statement—taken directly from Section 13.46(b) of the 1981 regulations—declaring each superintendent's prerogative to close routes that damaged park resources. [130]

Members of the various SRCs generally favored either the expansion or the continuation of ATV use within the parks and monuments. [131] NPS officials, as suggested by the above policy statements, were more responsive to these comments at some park units than at others. At Aniakchak, for example, the SRC passed a resolution urging the Interior Secretary to allow subsistence use of the monument by three-wheeler; the Interior Department, however, reiterated language contained in the GMP and stated that "the use of three-wheelers is not a traditionally used form of surface transportation for access to the monument for subsistence use." [132] But at Wrangell-St. Elias, NPS officials recognized the widespread nature of ATV usage by both subsistence and sport hunters. At a November 1984 SRC meeting, Chief Ranger Bill Paleck noted that "a local rural resident (subsistence user) can take an ATV any place they want." The NPS's recognition of the popularity of ATV use, plus strong support for their continuation by park SRC members, apparently played a major role in ensuring long-term ATV use for local residents. [133]

At Gates of the Arctic, existing ORV use centered around the community of Anaktuvuk Pass. [134] NPS officials, soon after ANILCA, let it be known that ATV use was prohibited within the national park. This rule generated little controversy at first, but during the early 1980s two factors—a dramatic growth in the number of ATVs used by village residents, plus the August 1983 Chandler Lake agreement, which conveyed surface rights to more than 100,000 acres from the ASRC to the NPS—brought disgruntlement to many village residents. One by-product of the 1983 agreement was the creation of a small network of ATV easements in the park's non-wilderness areas. Residents, however, sometimes took ATVs into the wilderness portions of the park in their pursuit of caribou, and they chafed at any restrictions that prevented them from gaining access to wildlife on which they depended. In order to circumvent the agency's restrictions, they took part in a legal challenge of the position that ATVs were not a traditional means of surface transportation. [135]

At a 1984 SRC meeting held in Anaktuvuk Pass, local residents stated that "their most pressing concern was to obtain access to certain parklands that were important use areas." As a result of this testimony—and perhaps because of the impending legal challenge—Superintendent Richard Ring "agreed to hold talks to resolve the differences." [136] By January 1985, the agency was working on a proposed park boundary adjustment with the Nunamiut Corporation "which would include a portion of the upper Nigu River drainage," and that November, the Nunamiut Corporation stated its interest in discussing the matter further. (Officials, for the time being, allowed existing ATV use to continue.) Before such an adjustment could take place, however, the NPS decided to study the broader issue of ATV use in and around Anaktuvuk Pass. That study, which was also supported by the Bureau of Indian Affairs and North Slope Borough, began in early 1986 and continued for the next two years. [137] Meanwhile, specifics of a proposed land exchange—between the NPS, the Arctic Slope Regional Corporation, and the Nunamiut Corporation—began to emerge. At the park's March 1986 SRC meeting, the Commission passed a resolution urging "the Arctic Slope Regional Corporation to get together with the National Park Service and Nunamiut Corporation to discuss a land exchange with the Park Service to resolve access into traditional subsistence areas for the residents of Anaktuvuk Pass." [138] By the spring of 1987, park superintendent Roger Siglin reported that "everyone seemed pleased" with progress on the land exchange, and in January 1989 four entities—the ASRC, NPS, Nunamiut Corporation and the City of Anaktuvuk Pass—signed a detailed draft agreement intended to resolve the ATV controversy. [139] All parties recognized that the problem required a legislative solution, because only Congress had the power to add or eliminate wilderness acreage. The NPS, preparing for that eventuality, set to work on a legislative environmental impact statement. The completion of that document took place during the 1990s; that and succeeding activities are discussed in Chapter 8.