Alaska Subsistence: A NPS Management History (Chapter 6)

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

During the mid- to late 1980s, most subsistence issues dealt with by NPS officials and SRC members were related to issues of eligibility, access, traditional use zones, and wildlife management. But issues related to trapping and the national preserves loomed as well, and vexing definitions emanating from ANILCA and the 1981 regulations were also addressed. This section discusses these and related matters.

At the various introductory SRC meetings, NPS officials clarified trapping's role in the various national park units. Members were told that trapping was allowed only for subsistence purposes; the activity was "not intended to be solely or predominantly commercial." Trappers, similar to hunters, who lived in resident zone communities would not need a permit. Permits would, however, be required for those who lived outside of resident zone communities or for those who maintained a cabin within a park unit. NPS officials said that they would do their utmost to "preserve a lifestyle," and to that end, the regulations guaranteed that the children of subsistence user would also be able to obtain permits, regardless of whether the children had themselves engaged in subsistence activities. [175]

The only trapping policy issue to emerge during this period was a recommendation submitted by the Wrangell-St. Elias SRC. The issue was trapping with a firearm on the national preserves. This practice had been prohibited in Alaskan national park units (in parks and monuments as well as preserves) since June 1983 as a result of two sets of regulations: the June 1981 final regulations that defined a trap as "a snare, trap, mesh, or other implement designed to entrap animals others than fish," and June 1983 NPS-wide regulations that defined "trapping" as "taking or attempting to take wildlife with a trap." [176] The NPS made no attempt to enforce this regulation for the next several years, and both the draft and the revised draft versions of the park general management plans (issued in March and December 1985, respectively) made no reference to these regulations. At the Board of Game meeting held from January 7-15 1986, state game officials admitted that they were unaware of the NPS's trapping restrictions; indeed, they stated that as many as twenty wolves may have been taken in NPS preserves by the land and shoot method, by those with a trapping license, during the recently-concluded season. To set the record straight, therefore, Lou Waller of the NPS gave the Game Board the federal definition of "trap" as stated in 36 CFR Section 13.1. On January 21, NPS Regional Director Boyd Evison met with ADF&G Commissioner Don Collinsworth on the matter, and on February 14, the NPS sent the state a letter formally conveying the NPS prohibition of firearm use for trapping. [177] NPS officials, as a result, were now free to enforce its prohibition of same-day-airborne hunting (with hunters who held either a hunting or a trapping license) in the various national preserves. As a logical follow-up to that issue, NPS officials inserted the following statement in the final (November 1986) GMPs; "Trapping in national park system units can be conducted only using implements designed to entrap animals." [178]

Bill Ellis, a master guide and pilot, chaired the Wrangell-St. Elias National Park Subsistence Resource Commission from its inception, in 1984, to 1994. He often tangled with NPS officials over subsistence policy matters. Thelma Schrank photo

The Wrangell-St. Elias SRC chair, at the time, was W. T. (Bill) Ellis, a commercial guide and pilot who typically hunted in the preserve. He was an outspoken advocate of predator control in general, and aerial wolf hunting in particular. Perhaps because of Mr. Ellis's influence, therefore, the SRC, in April 1987, responded to the newly-included GMP verbiage by recommending that "trapping be allowed with the use of a firearm on Preserve lands within Wrangell-St. Elias National Preserve." The recommendation noted that Alaska state law allowed trapping with a firearm and that "in many places in Alaska this is the customary and traditional means of trapping." The recommendation's intent, therefore, was to align federal with state law. The recommendation was submitted to the Interior Secretary in August 1987, but the Interior Department failed to respond to it. [179]

Although the federal government failed to address this issue, it was nevertheless resolved in the SRC's favor (and, more specifically, in Mr. Ellis's favor) when the state agreed to modify its regulations pertaining to same-day-airborne harvesting. The State Game Board revised its same-day-airborne provisions for wolves by 1) eliminating the previous allowance for trapping but 2) establishing such an allowance for hunting. For the first time, therefore, fly-in sport hunters were free to harvest wolves with a hunting license in NPS areas in Alaska. Legally speaking, it was the first time since 1983 that hunters visiting the national preserves had been able to harvest wolves and other furbearers with a firearm; but since most hunters had been unaware of the NPS's regulations prior to early 1986, the de facto prohibition against all wolf hunting in the preserves had been in force for less than two years.

NPS officials, fully aware that any form of habitat manipulation was forbidden in Alaska's park units, adopted an emergency one-year regulation (beginning in November 1988) prohibiting same-day-airborne hunting of wolves in NPS areas. At the same time, the agency began drafting a proposed rule for permanent adoption; that rule was published in the June 9, 1989 Federal Register. The public was given 70 days (until mid-August) to comment on the rule, and during that period the agency conducted hearings in 15 Alaska communities and collected more than 1,400 comments, 94 percent of which favored the rule's implementation. Based on that response, NPS officials began preparing a final rule on the subject. [180]

Regarding Alaska's ten national preserves—three "standalone" preserves and seven others contiguous to national parks or monuments—a variety of issues ensued. As noted in Chapter 4, the preserve concept, which was a newly-emergent NPS unit classification during the years that immediately preceded ANILCA's passage, was promulgated in order to allow sport hunting. Shortly after ANILCA became law, Interior Department officials—in a major concession to the State of Alaska—agreed to relax eligibility requirements to subsistence users in the various preserves. As noted in the June 1981 regulations,

In October 1982, the NPS and the Alaska Department of Fish and Game signed a master Memorandum of Understanding. Virtually all of its provisions applied to the preserves as well as to the parks and monuments, but one in particular would become a point of contention in later years. In that provision, the NPS and ADF&G mutually agreed

Two years later, in the spring of 1984, NPS officials told SRC members at the various introductory meetings that the commissions would deal exclusively with park or monument issues; preserve-related issues would be of interest only insofar as they influenced parks or monuments. (This was because Section 808(a) of ANILCA established an SRC "for each park or park monument.") [183] Given that dictum, most SRCs overlooked subsistence issues on nearby preserves. But the combined Cape Krusenstern and Kobuk Valley SRCs, which often met in conjunction with one another, occasionally discussed subsistence matters throughout Game Management Unit 23 (and thus included Noatak National Preserve), and the Wrangell-St. Elias SRC felt a keen interest in matters pertaining to Wrangell-St. Elias National Preserve. In November 1984, for example, the SRC had a "discussion among the members present [about] commercial operators within the preserve. Although members at that meeting were counseled that "this commission would not address issues in the Preserve," the transcriber noted that "this commission believed they were supposed to deal with issues in the Preserve also." [184]

As noted above, a major access issue erupted in July 1985 when Regional Director Roger Contor ruled that subsistence users could not use an aircraft to access either preserve lands or adjacent non-NPS lands with the express intention of accessing park or monument subsistence resources. As part of that ruling, Contor was quick to point out that "current regulations do not prohibit the use of aircraft for subsistence purposes in any of the preserves." He further interpreted the June 1981 regulations to require "a person to be a local rural resident in order to qualify for subsistence uses in the preserve." Soon afterward, however, the NPS retracted the latter statement inasmuch as there were no resident zones—and thus no agency-defined "local rural residents"—associated with the preserves. [185] Some NPS officials hoped to "add preserves to the definition of local rural residency," but their efforts were unsuccessful. [186]

The 1982 Master MOU, as noted above, gave the ADF&G the right to enforce state fish and game regulations "unless State regulations are found to be incompatible with documented Park or Preserve goals, objectives, or management plans." During the 1980s, the sole instance in which this provision was utilized dealt with wolf control. ANILCA, the regulations written in its wake, and the Master MOU all made it clear that the NPS would not allow wildlife manipulation within the various park units, so when the Alaska Board of Game moved to allow the aerial "trapping" of wolves on preserve lands, NPS officials protested the Board's action. [187]

Another problem faced by both the NPS and SRC members was the murky definition of certain critical terms used in Title VIII of ANILCA. As noted in Chapter 5, the June 1981 regulations contained four such terms: "healthy," "natural and healthy," "customarily and traditionally," and "customary trade." Regulators at that time were well aware of their lack of specificity in these matters. Regarding the first two terms, they readily admitted that "the Service has not defined these new terms in the context of this interim rulemaking. ... However, the Service has quoted at length from Congress' explanation of these concepts ... in order to guide park officials in their implementation of them." Regulators also chose to avoid defining "customarily and traditionally ... since their definition requires extensive prior comment and research as well as the advice of the local committees, regional councils, and park and monument commissions." [188]

One of these matters was addressed in December 1981, when the joint fish and game boards provided an eight-pronged definition of "customary and traditional." (As noted in Chapter 5, this term had originally been defined in March 1981, in a Cook Inlet fisheries case, using ten criteria.) When the state, the following spring, formally assumed management of subsistence resources on federal lands, that definition was applied to NPS and other federal lands in Alaska. The definition remained unchanged until the Madison court decision forced the state to adopt a new subsistence law; as part of the negotiations resulting in that law, the state legislature adopted a letter of intent. That letter specifically mentioned eight criteria for identifying customary and traditional uses of fish and wildlife resources; these criteria were similar (though not identical) to those adopted in December 1981. [189] "Customary and traditional" was not defined as part of the June 1981 agency regulations (despite one group's urgings), and several years later the NPS's subsistence coordinator drafted a letter urging one of the SRCs to "provide local input into the definition of these terms...". [190] No action, however, was taken on the matter.

Attempts to define "healthy" and "natural and healthy" proved more controversial. The June 1981 regulations, while avoiding a precise definition, provided a contextual definition with a liberal sprinkling of both terms, and the 1979 Senate report discussed "healthy populations of fish and wildlife" at some length. But park managers, told they must manage "natural and healthy" fish and wildlife populations in the parks and monuments and "healthy" populations in the preserves, were uncomfortable with the terms' lack of specificity. At one of the introductory SRC meetings, members were told that the practical effect of the "natural and healthy" definition was that if "there is no longer a natural [wildlife] population, [the superintendent] must impose a restriction [on harvesting], injunction, or legislative action." At another early meeting, a park superintendent noted that in order to maintain natural and healthy populations of animals subject to trapping, "the level of use is not to exceed what it was at the time of ANILCA." [191]

The preparation of the various park GMPs during the mid-1980s generated further questions and comments, and in addition, considerable discussion on the subject arose at meetings of the Gates of the Arctic SRC. In preparation for the SRC's January 1985 meeting, an environmental organization submitted comments urging that "the ADF&G and the NPS work together to establish a definition of what constitutes 'natural and healthy' wildlife populations," and a commentor from another organization postulated that inasmuch as "subsistence uses by local residents have been, and are now, a natural part of the ecosystem," any deviance from that norm (including "the concept of the park itself") should be considered "unnatural." [192] But any further discussion of the concept was postponed because of the furor that arose over traditional use zones. Not for another year did the SRC discuss the idea. An ADF&G representative at a January 1986 meeting noted that there was "no necessary contradiction between sustained yield [which was the state's fish and wildlife management philosophy] and natural and healthy populations." During the GMP process, public concern about the vague definition was widespread that "'natural and healthy' wildlife populations should be defined and management implications identified." [193] But the various final GMPs did not address those concerns. Mack Shaver, who served as the NPS's Northwest Areas superintendent, felt that present-day subsistence harvests were often "at least partly a consumptive and potentially damaging use of ecosystem resources" and that this "threat relates directly to naturalness and health." He therefore pressed the agency to define the two terms, inasmuch as it was "unlikely that the Board of Game will use those terms as criteria until we arrive at manageable definitions." [194]

Gates of the Arctic was the only park or monument SRC to address this issue when it recommended that "the term 'natural and healthy' population should be applied to the Park as a whole, and not just to limited geographic areas." Regional subsistence personnel, who attended an SRC meeting shortly after receiving the recommendation, asked commission members

But neither the Gates of the Arctic SRC nor any of the other SRCs provided additional written input on the "natural and healthy" issue. The Interior Department, moreover, responded to Gates of the Arctic SRC's efforts by ignoring its "natural and healthy" recommendation. In a blanket statement, it noted that

One term that was defined fairly specifically was that of customary trade. The term had first appeared in 1978 as part of the "subsistence uses" definition in the state's subsistence law. Shortly after President Carter's national monument proclamation in December 1978, the public was given the first of several opportunities to comment on the "customary trade" concept as well as on several other examples of "subsistence uses." A working definition thus emerged in the June 1979 proposed rule, which was refined in the January 1981 proposed rule and the June 1981 final rule. [197] The final rule noted that the definition

Shortly afterward, in December 1981, the joint fish and game boards passed their own regulations and defined customary trade somewhat more loosely. Customary trade was defined as "the limited noncommercial exchange, for minimal amounts of cash, of fish or game resources." The state's definition, among its other implications, sanctioned a more broad-based trade in plant materials than its NPS equivalent. [198]

The various GMPs, issued during the mid-1980s, clarified the role of customary trade in national park units. The Gates of the Arctic GMP, for example, noted that both barter and customary trade were "recognized as being a part of the subsistence lifestyle and economy. Customary trade largely centers around the sale of furs, although other items are also part of trade networks." The authors of the 1979 Senate Report, it noted, did "not intend that 'customary trade' be construed to permit the establishment of significant commercial enterprises under the guise of 'subsistence uses.'"

One gray area in the customary trade realm—the sale of caribou antlers—was brought to the agency's attention by the Cape Krusenstern SRC in late 1989. Through the mid-1980s, antlers were not an issue because most antlers from subsistence-caught caribou were left in the field by hunters; only a small number were used in craft items. But in the late 1980s, buyers from Korea arrived in northwestern Alaska to purchase wild caribou antlers. Selling these items was legal, at the time, according to state law. But federal regulations in this area were perceived to be sufficiently unclear that the question was referred to the Interior Department's solicitor. Much later, officials concluded that antlers could be collected from caribou that had been harvested for subsistence purposes; the customary trade regulations, however, prevented the intentional collection of antlers or the harvesting of animals for the sole purpose of antler collection. [199]

alaska_subsistence/chap6h.htm
Last Updated: 14-Mar-2003