Alaska Subsistence A National Park Service Management History

F. The Controversy over Traditional Use Zones

As noted in Chapter 4, differences between the House and Senate bills on the subsistence question had resulted in the inclusion of traditional use zones in ANILCA. (The House of Representatives felt that subsistence was a legitimate activity throughout most of the new or expanded park units, while the Senate felt that subsistence activities should have been limited to the preserves, the so-called northwestern park units, and certain portions of Gates of the Arctic.) Final language hammered out in the bill signed by President Carter stated that subsistence uses in five park units—Denali, Gates of the Arctic, Lake Clark, Wrangell-St. Elias—would take place "where such uses are traditional, in accordance with the provisions of Title VIII." Although the various draft bills that preceded ANILCA gave some indication of historically-defined traditional use areas at Gates of the Arctic, [140] neither ANILCA nor the 1981 regulations provided guidance on where—at any of the five park units—these traditional use areas should be located. This issue, therefore, would be decided by either NPS officials or the SRCs.

In November 1984, NPS officials released maps of known traditional use zones in Gates of the Arctic National Park. Two months later, at an SRC meeting, North Slope Borough Mayor George Ahmaogak and a host of others criticized the maps' limitations as policy instruments. ADN

Dick Ring served as the first superintendent of Gates of the Arctic National Park and Preserve. In response to the barrage of criticism expressed over the traditional use zones issue, the park's SRC was given eighteen months to formulate a decision in the matter. The issue remained a sticking point between the agency and local residents for years afterward. NPS (AKSO)

At various early SRC meetings for each of these five park units, NPS officials (usually Lou Waller, the subsistence coordinator) discussed the traditional use zone idea. The agency explained that one such zone would be drawn for each community; beyond the limits of that zone, subsistence harvesting would be prohibited. Based on his knowledge of ANILCA's legislative history as well as the June 1981 regulations, Waller stated that "it is the local committee, regional council and [subsistence resource] commission"—not the NPS—that should be the driving force behind the delineation of traditional use zone boundaries. [141]

At Gates of the Arctic, a special urgency surrounded the creation of these zones, and no sooner had the first SRC meeting convened than pressure began to be exerted to map out applicable zones for each resident zone community. In a criminal court case decided just a few weeks earlier—one in which Larry Fitzwater had been prosecuted for illegally trapping in a national park—the judge had allowed the defendant to avoid most of his fine because subsistence zones had not yet been identified. [142] As a result of that decision, the NPS concluded that "the traditional use areas must be defined to assure that new uses and radical changes do not occur as a result of the state's implementation [of] game regulations." NPS officials, at that meeting, laid out an accelerated implementation agenda. "Within the next couple of months," they stated, "maps [of traditional use areas] will be published with community by community descriptions. ... The Commission and public will have a chance to suggest changes. ... It would be timely to make recommendations at a July meeting since the Park Service needs something in place by November." Commission members, still new to their positions, may or may not have recognized that the agency, by drawing traditional use zone maps on their own, was ignoring the SRC's advisory role that had been clearly intended by Congress. So the SRC members bided their time, recognizing (or perhaps hoping) that their opinions would be heard during the upcoming public comment period. [143]

After the July meeting, Ray Bane and other park staff—using the "areas listed in Senate Report 96-413 and first hand experience"—began to prepare a series of draft 1:250,000-scale maps of traditional use zones for each of the park's ten resident zone communities. [144] In mid-November, a parkwide map delineating suggested winter and summer use zones was shown to the park's SRC (see Map 6-1, facing page), and in December, park staff circulated additional maps in the various resident zone communities. To gauge the maps' accuracy, residents of those communities were asked to "provide information on traditional areas of subsistence use." Area residents were given a January 1985 deadline—which was later extended to March 1—to submit comments. In order to encourage public involvement, SRC chair James Schwarber contacted several organizations and asked for their input. [145]

The first opportunity for park staff (and the park SRC) to hear the public's reaction to the proposed traditional use plan took place when the park SRC met at Fort Wainwright in late January 1985. At that meeting extensive written testimony was presented by representatives of RuralCAP, the Alaska Legal Services Corporation, the Citizens' Advisory Commission on Federal Areas, and North Slope Borough. Representatives of other organizations presented oral testimony. Most if not all of this testimony opposed the NPS's proposal. The RuralCAP representative, for example, stated that the agency's plan

proves the futility of trying to pin subsistence users down to exact areas. ... [T]o try to fit subsistence uses as practiced by Natives into closely-defined areas ... is not just futile, it is debilitative, unfair, and in some cases, arrogant. ... Do not make the mistake of attempting to write with fingers of fire in tablets of stone what and where and how subsistence users shall subsist. Be flexible — the resources and users are both flexible. [146]

The Citizens' Advisory Commission statement, drawing a similar conclusion, stated that "it is the 'traditional' pattern of subsistence people to follow the game, rather than the game to follow the people into traditional areas." It questioned "whether or not there is any area in the [park] that has not, at some time in the past, been used for subsistence activities," and it criticized the agency for countermanding ANILCA's dictum to "cause the least adverse impact possible on rural residents who depend upon subsistence uses of the resources of such lands." Finally, it urged caution by quoting Rep. Morris Udall; "fundamental fairness seems to require ... that if there is any doubt as to whether subsistence hunting should be permitted within a particular area, that the decision be made on the basis that subsistence hunting should be permitted rather than restricted." [147]

Mayor George Ahmaogak of North Slope Borough used the NPS's own words to fight the proposed traditional use zones. Ahmaogak, in particular, took exception

to the brief amount of research time spent on this project by the National Park Service. Ray Bane, in Tracks in the Wildland, agreed. He stated, "since most of the resources in this area are subject to drastic population changes, surveys would have to cover several decades in order to give an accurate picture of resource damage. Land use or harvest quota policies based on short term surveys would be extremely difficult to justify in many cases." When asked by one of my staff if the National Park Service planned continued research on subsistence issues, Richard Ring, Superintendent of Gates of the Arctic, said no. Mr. Ring seems to feel he has done his duty, though few outside the Park Service agree. [148]

The ALSC statement, making a legal point, noted that "the formal designation and mapping of such [traditional use] areas within the park is not required by the law, may in fact be prohibited by the law, and in any event is undesirable and inappropriate at the present time." The next ten pages of the statement provided data to support that statement. [149]

Based on these and similar statements, the park's SRC—at the NPS's request—unanimously passed Resolution 85-01 on the subject. The Commission resolved that

In order for the Subsistence Resource Commission to properly pursue its responsibilities, ... the National Park Service is not justified in initiating, and is requested to refrain from any formal rule making efforts regarding traditional use zones for this park until this entire issue can be more fully researched, and the Subsistence Resource Commission can make a formal recommendation ... within 18 months of today; and that the current request for information period [with a March 1 deadline] be extended indefinitely to allow maximum public involvement and input.... [150]

Soon after the meeting, this resolution—with an appropriate cover letter explaining and justifying the SRC's action—was mailed to Interior Secretary William P. Clark and other appropriate officials. [151] A month later, NPS Regional Director Roger Contor responded to the Clark letter and noted, in an introductory paragraph, that the agency "appreciates the complex issues associated with implementation of Title VIII" and that "the resolution of many associated side issues, such as definition of traditional use areas, is something for which there is little or no precedent." In an apparent change in agency policy, Contor then noted that the agency "is clearly in full agreement with the substance of Resolution 85-01." As an explanation for that apparent change in course, the letter stated that "Superintendent Ring [at the January 1985 meeting] requested that the Commission make its recommendations within a reasonable period of time. We feel 18 months is a reasonable time allowance for this complex issue." [152] The NPS's action defused the traditional—zone controversy for the time being. That May, the park issued a new public notice asking for "information on the traditional areas of subsistence use" for the various resident zone communities. The new deadline for comments was April 15, 1986. This date, almost a year away, still allowed ample time for the SRC to mull over the matter prior to its self—imposed July 1986 deadline. Inasmuch as the issue had antagonized almost everyone in Anaktuvuk Pass by this time, it also gave the agency time to let tensions over the issue cool down. [153]

Little was heard about this issue at Gates of the Arctic until January 1986, when SRC members passed a resolution demanding that any "agencies or individuals engage[d] in mapping and identifying traditional use areas or access routes ... be required to actively involve user communities within Gates of the Arctic National Park." Another resolution, passed at the same meeting, asked that the SRC be allowed—but not required—to draw traditional use boundaries. [154]

A 1984 meeting of the Gates of the Arctic National Park Subsistence Resource Commission. Pictured (left to right) are Jim Schwarber (Alatna River), Rick Caulfield (Fairbanks), unidentified, Roosevelt Paneak (chair, Anaktuvuk Pass), and Dan Wetzel (Fairbanks). NPS (GAAR)

Neither of those resolutions, however, adequately responded to the SRC's self-imposed deadline for resolving the traditional use zone issue. So at its March 1986 meeting, the SRC cobbled together a recommendation on the subject. In recognition of the dynamic nature of the caribou and other subsistence resources, the communal nature of the subsistence users, and the lack of research pinpointing historical subsistence patterns, the SRC resolved—as part of the park's subsistence hunting plan—that:

1. No lines should be drawn restricting traditional use,

2. That if boundaries are set up that they be flexible for the residents of all user communities of the park,

3. More research be done on the traditional use by subsistence users of the resident communities, and

4. Input from all resident communities [should] be sought for the identification of traditional use areas. [155]

By the culmination of the March 1986 meeting, the SRC had gone on record as having passed twenty-four resolutions, three of which pertained to the traditional use zones issue. Commission members recognized that many of these resolutions were clearly inappropriate for inclusion in a subsistence hunting program. At its June meeting, therefore, the SRC edited and reworked its earlier resolutions in its preparation of its final subsistence hunting plan for submission to the Interior Secretary. At that meeting, SRC member (and professional subsistence researcher) Rick Caulfield held a traditional use workshop. At its conclusion, he reported "that the specific traditional use areas on maps is not a very good idea," that "subsistence uses needs to be flexible according to supply and demand of that particular area," and that "communities need to regulate [where subsistence hunting takes place], not agencies." [156] Based on the results of that workshop and the SRC's earlier recommendation, the commission prepared a page-long recommendation on the subject. It stated, in part, that

Flexibility, mobility, and adaptability are essential in providing for the continuance of subsistence opportunities. Territorial requirements of subsistence users may include those actively used at a particular point in time, but may also include "reservoir" areas traditionally used at other times when local need or resource dynamics dictate. ... The Commission [therefore] believes that the geographic areas available for subsistence harvests by local rural residents should at least include the total territory utilized during the lifetimes of individuals comprising the community. ... [M]uch of what is now Gates of the Arctic National Park has, over time, been traditionally used for subsistence.

[T]he Commission has carefully reviewed the suggestion that formally-designated (mapped) traditional use areas for each resident zone community be established. However, ... the Commission recommends that such designations not be made. Formally-designated traditional use areas are considered unnecessary for effective management of the Park, and would likely be culturally inappropriate, administratively cumbersome, and unduly arbitrary. Instead, the Commission believes that existing limitations on access and eligibility ... are sufficient to protect park resource values and meet Congressional intent. [157]

On July 23, the NPS issued a public notice asking for comments on the SRC's traditional use zones statement (along with other aspects of the park subsistence hunting program). At least some NPS officials—Northwest Alaska Areas Superintendent C. Mack Shaver, for example—remained strict constructionists on the issue. Speaking for himself and his staff in a July 1986 memorandum to the region's subsistence coordinator, Shaver noted that

we don't believe a subsistence management proposal for Gates can just ignore the "where traditional" wording in ANILCA. Perhaps anyone using "strictly traditional" methods and means could be allowed access to the entire park but modern access methods ... open up areas never accessible before. Congress intends only that those leading a subsistence lifestyle prior to ANILCA be allowed to continue to do so—not that anyone wishing to experience such a life be allowed to move into an NPS resident zone and try it out. [158]

James Pepper, Gates of the Arctic's management assistant, shared many of Shaver's opinions on the subject. He noted that "the law is clear in Sections 203 and 201 and the accompanying legislative history that Congress expected that portions of the park would be closed to all hunting." He furthermore complained that the Commission, during the intervening period between initial vote on the subject (in January 1985) and its final (June 1986) resolution to the Interior Secretary, had

still not provided any information whatsoever, but only the argument that it disagrees with what is clearly Congressional intent. The meetings and the time for testimony and for evaluation costs money and we believe the Commission wasted the money with no apparent honest attempt to use the 18 months, except for the purpose of delay. [159]

Officials in the agency's Alaska Regional Office, however—still smarting from the backlash against the traditional use zone idea at the January 1985 SRC meeting—were more conciliatory to the commission's June 1986 resolution. Regional Director Boyd Evison, hoping to avoid the negative publicity that the issue had caused thus far, worked with Waller and other subsistence officials and helped outline two alternatives that the Interior Secretary might consider. In one alternative it was suggested that despite ANILCA's dictum to draw traditional use zone boundaries, "Congress also made it clear that subsistence users were to be allowed to shift their use areas when and if the wildlife populations moved to new or different areas." But that alternative also warned SRCs that they "should be asked to identify traditional use zones by community," and "failure by the SRC to do this will necessarily result in the NPS having to use the best information available to define the traditional use areas." The second alternative, less confrontational than the first, noted that "the identification of traditional use zones may not be necessary from a management perspective if it is true that subsistence users will not expend any more time, money, and energy than is necessary to harvest wildlife resources," and that given certain caveats, "there is no need to determine traditional use zones by defining boundaries on a map." [160]

This photo shows Dick Martin, Wrangell-St. Elias's superintendent from 1985 through 1990, pulling the tramcar across the Kennicott River. Dick Martin photo

In March 1987, the park's SRC responded to the various public comments and finalized its draft subsistence management program; on May 6, the Commission forwarded its various recommendations to Interior Secretary Hodel. A year later, the Department responded with a rejection of the SRC's traditional use zone recommendation because it "seems to imply that the entire park is an area of traditional use" and because "Congress was clear in its intent to have ... some areas of the park remain, for the most part, unhunted." Following the first alternative outlined above, the Department felt "that the Commission, in conjunction with local communities and the National Park Service, should analyze the patterns of subsistence use ... and develop a definition of traditional subsistence areas by community." [161] The Interior Department's relatively hard-edged response, combined with a strongly-voiced opposition to such an approach at the state and local level, thus left the NPS in a quandary. From that point forward, the traditional use zones idea at Gates of the Arctic would remain in a legal limbo; the issue would stay unresolved because of the clash of values between the Interior Department's May 1988 directive and the park SRC's disagreement with that directive.

As noted above, the traditional use zones idea was considered at each of the five park units in which the "where such uses are traditional" clause was applicable, but only at Gates of the Arctic did the issue generate much controversy. NPS officials at two of the other four parks in this category took an opposing philosophical stance from those at Gates of the Arctic. At Denali, for example, superintendent Robert Cunningham stated at a 1987 SRC meeting that the traditional zone issue was not a problem at that park, and the SRC took no action on the issue. [162] And at Wrangell-St. Elias, Superintendent Richard Martin stated that the imposition of traditional use zones "would be an administrative nightmare" because the numerous, poorly-defined communities that ringed the park "would result in a myriad of overlapping traditional use areas. Enforcement much less determination of these areas would be virtually impossible." [163] At several of the early SRC meetings, the region's subsistence coordinator made a pro forma announcement that commission members should consider delineating such zones, and four years later, the Interior Department's response to various SRC hunting plan recommendations occasionally included a similar admonition. [164] But Gates of the Arctic was the only park unit where NPS had pressed SRC members to delineate traditional use zones, and without that pressure, SRC members felt no inclination to do so on their own.

Map 6-1. Traditional Use Zone Proposal, Gates of the Arctic National Park, November 1984. (click on image for an enlargement in a new window)