Alaska Subsistence A National Park Service Management History

D. Alaskan Responses to Federal Assumption

As noted above, the federal government was forced to assume management of subsistence activities on public lands because the McDowell decision struck down the rural preference provision contained in the state's subsistence law, and because the Alaska legislature failed to pass a bill conforming to ANILCA requirements prior to the June 30, 1990 deadline. Many Alaskans were unhappy that the federal government had to assume subsistence management, although most also recognized why such an action had been necessary. Given that state of affairs, there was a diversity of opinion regarding how the state might regain subsistence management; some advocated an administrative or legislative solution, while others sought help in the judicial arena.

The first move to return subsistence management to the state began even before federal assumption began. On June 22, 1990, a group of 24 individuals and sportsmen's organizations filed a lawsuit in the Fairbanks U.S. District Court claiming that certain provisions of ANILCA were unconstitutional. In a lawsuit that became known as "McDowell II" because one of the fourteen individuals was Sam E. McDowell, the plaintiffs asked the court to declare ANILCA's Title VIII unconstitutional, to declare that any discrimination among subsistence users based on residence was similarly unconstitutional, and to grant an immediate injunction against any Title VIII enforcement. In mid-October 1992, District Court Judge Russel Holland rejected the plaintiffs' assertions in a 52-page ruling. [61]

Less than a week after the McDowell II lawsuit was filed, the Alaska legislature established a study group to investigate the subsistence situation. During the 1990 special session, the legislature's compromise plan—decided on June 26—proposed the creation of a Commission on the Subsistence Use of Fish and Game (more informally known as the Subsistence Review Commission) that would remain active for two years. Though the plan itself failed, a bill manifesting the commission idea (SB 555) passed the Senate on June 27 and the House on July 2. Three weeks later, on July 23, Governor Cowper signed the bill into law. The governor, however, waited until after the November election to appoint the various commission members. So far as is known, the commission never met. [62]

In the fall of 1990, the state's fish and game decision-makers weighed in on the issue. On October 30, at a joint meeting, the Alaska boards of fisheries and game declared that all Alaska residents were subsistence users because, despite three days of trying, they were unable to agree on a definition of subsistence hunting and fishing. The board, obviously frustrated at the lack of a legislative resolution to the subsistence issue, issued a statement noting that

the courts have required action to identify subsistence users which is impossible to comply with at this time under these legal constraints. ... At the present time the Joint Board of Fisheries and Game have no other option than to apply the standard that all Alaskans are now eligible subsistence users. [63]

Based on that ruling, the joint boards opened several all-Alaskan subsistence harvests. But sport and commercial interests, worried about overharvesting, filed suit against the board's action. Rulings on their suits, returned during May and August 1991, declared that the joint board's action was invalid. Future all-Alaskan subsistence harvests would be prohibited. [64]

In November 1990, the state's voters elected longtime Alaskan Walter J. Hickel to the governor's chair. Hickel, who years earlier had served both as a governor and the U.S. Interior Secretary, ardently hoped to return subsistence management to the state, and a central campaign platform was a promise, in the subsistence arena, to not touch the state constitution. [65] Perhaps because the legislature, early in its 1991 session, made no serious move toward passing a subsistence statute, Hickel established a Subsistence Advisory Council, which met for the first time on February 25. The six-member Council was composed of three Natives (Mitch Demientieff, Gene Peltola, and Matthew Iya) and three non-Natives (John Burns, Eric Forrer, and former governor Jay Hammond). It met seven more times over the next two and one-half months; at its final meeting on May 1, it announced a failure to reach a consensus. [66] The legislature adjourned that year without taking serious steps to address the ongoing subsistence dilemma.

Recognizing that the state had one last opportunity to act before federal authorities imposed permanent subsistence regulations, Governor Hickel in mid-September 1991 unveiled a proposal calling for a modified version of the rural preference, but it also allowed urban residents to qualify for subsistence by meeting a set of criteria. (McKie Campbell, the deputy fish and game commissioner and Hickel's top deputy on subsistence matters, stated that the proposed bill would pass constitutional muster, though he conceded that it wouldn't lead to a resumption of state management of fish and game on federal land.) During the first two months of the regular 1992 legislative session, Hickel and Campbell discussed various legislative proposals. [67]

McKie Campbell, a deputy commissioner of the Alaska Department of Fish and Game during the early 1990s, was Governor Hickel's top assistant on subsistence matters. ADN

Then, in the midst of the 1992 legislative session, the Hickel administration undertook another subsistence-related action when it filed a lawsuit over control of many of the state's navigable waters. The February 27 suit against the federal government, known as Alaska vs. Lujan, [68] contended that agency regulations overstepped Congress's intent when it passed ANILCA in 1980. Hickel, obviously frustrated over recent NPS actions pertaining to the closure of commercial fishing in Glacier Bay (see Chapter 8), stated that "we tried to negotiate with the federal managers when they began dictating our fisheries. [But] that didn't work. So, now we are taking action. ... Federal bureaucrats are doing everything they can to undo what we did at statehood." Defendants in the suit included the Interior and Agriculture secretaries and the Federal Subsistence Board. Hickel's aides stressed that the suit was peripheral to the conflict over the rural preference issue. "This is not a lawsuit against ANILCA or against subsistence," Campbell noted, and the suit "does not apply to federal lands. ... This is simply a straight title action, saying the state has title and control over its navigable water. The Park Service sometimes seems to view their parks as their private garden and Alaska's residents should be kept out." Buttressing that argument, five pages of the complaint contained a list of waterways from Kotzebue to Glacier Bay that, in the eyes of state officials, were wrongly covered by federal rules. Campbell averred that Hickel was "still very interested in regaining single state control of all fish and game. But he intends to do that through the legislative process with all parties working together, rather than through the judicial process." [69] One immediate effect of Hickel's action was an AFN-sponsored countersuit. The Alaska Federation of Natives often held views that were dramatically different from those of the Hickel administration, and their suit argued that the state government should be forced to give up control of all subsistence fishing to federal agencies. [70] No decisions on either suit were forthcoming in the foreseeable future.

Despite Campbell's February 27 promise, the state administration during the regular 1992 legislative session never weighed in with a bill that called for a constitutional amendment, and without executive support, subsistence-related bills had little chance for passage. Hickel, unlike Cowper, strongly felt that no Alaska residents should be promised special treatment under the constitution, and he fervently hoped that Congress would resolve the matter by eliminating the rural preference contained in Title VIII of ANILCA. [71]

As the regular legislative session drew to a close, a frustrated Hickel announced his intention to call a special session to resolve outstanding subsistence problems, and on Monday, June 15, the session began. [72] The governor that day submitted two identical bills, HB 599 and SB 484; other subsistence-related bills introduced that day included HB 600, by Rep. Ramona Barnes (R-Anchorage); HB 601, by Rep. David Finkelstein (D-Anchorage); and SB 485, by Sen. Albert P. Adams (D-Kotzebue). Hickel's bill passed the House Judiciary Committee but soon ran into headlong opposition in the full House. Adams's bill, meanwhile, was able to thread its way onto the Senate floor but was voted down 13-7. In an attempt to stave off certain defeat, a six-member House-Senate conference committee was appointed to consider Hickel's House bill. They were unable to agree on language acceptable to all sides, however, and on June 22 the bill quietly died. As in the regular 1992 legislative session, no bill calling for a rural-preference amendment to the state constitution received serious consideration because of objections from the Hickel administration. [73]

The only bill that emerged from the special session, Rep. Finkelstein's HB 601, was "a limited subsistence bill;" it called for the creation of non-subsistence areas, both on the Kenai Peninsula and in other areas, where the risk of conflict between subsistence and other uses was sharpest. The Alaska boards of fisheries and game, acting immediately after the vote was taken, vowed to push ahead and subdivide portions of the Kenai Peninsula into non-subsistence zones. But the Kenaitze Indians, along with Natives from Ninilchik, Eklutna and Knik filed suit against the new law, and on October 26, 1993 Superior Court Judge Dana Fabe declared that the 16-month-old law was unconstitutional. [74] State law, for all intents and purposes, was back to where it had been in early 1990, in the aftermath of the McDowell decision.

Those Alaskans who hoped to regain subsistence management of Alaska's public lands were still hopeful, however. In February 1992, it may be recalled, the State of Alaska had filed a lawsuit (Alaska vs. Lujan, later known as Alaska vs. Babbitt) against several ANILCA provisions at the behest of Governor Hickel, and many Alaskans were buoyed by a preliminary district court decision in that suit. Judge Russel Holland, on November 19, 1993, stated that he was "tentatively of the opinion" that ANILCA was ambiguous on the question of whether the federal government had the power to take any subsistence regulation away from the state. But the hopes of state's-rights advocates were dashed a year later when Holland ruled against the state in the case, and in January 1995 newly-elected governor Tony Knowles ordered state lawyers to drop Hickel's suit. Judicial challenges to Alaska vs. Babbitt had apparently run their course, and the state dropped its case. [75] The only practical way, it seemed, for the state to re-establish management authority over the state's subsistence resources was for the legislature to pass a bill (with a two-thirds majority) asking the state's voters to add a rural preference clause to the state's constitution. The legislature, however, showed little inclination to approve such a bill, so the federal government continued to manage subsistence resources on Alaska's public lands.