Alaska Subsistence A National Park Service Management History

Notes — Chapter 7

¹ Chief Justice Warren W. Matthews wrote the majority opinion and was supported by justices Allen Compton, Daniel Moore, and Edmond Burke, while Jay Rabinowitz wrote a dissenting opinion.

² The other plaintiffs were Dale E. Bondurant of Cooper Landing, Ronald Mahle of Anchorage, and Harold Eastwood from the Parks Highway corridor just east of Denali National Park and Preserve. All four plaintiffs, under the terms of the 1986 act, were disqualified from subsistence activities because they lived in areas that the joint Boards of Fisheries and Game had classified as non-rural. Besides the State of Alaska, the other defendants were the Alaska Department of Fish and Game, the Alaska Board of Fisheries, the Alaska Board of Game, and Fish and Game Commissioner Don Collinsworth. "McDowell v. State," Pacific Reporter, 2d Series, v. 785 (1990), 2.

³ "McDowell v. State," 4-6. Sections 3, 15, and 17 of Article VIII specifically spelled out the state's equal access provisions.

⁴ Anchorage Daily News, April 22, 1989, D2; August 4, 1989, E9. Cheri Jacobus argued the case for the appellants, while Donald Mitchell (of the Alaska Federation of Natives) and Assistant Attorney General Larri Spengler represented the defendants.

⁵ Anchorage Daily News, December 23, 1989, A12; Lou Waller interview, July 25, 2000.

⁶ "McDowell v. State," 9-11.

⁷ Anchorage Daily News, December 23, 1989, A12.

⁸ Anchorage Daily News, December 23, 1989, A12; January 6, 1990, C1; January 18, 1990, E2.

⁹ Anchorage Daily News, February 19, 1990, E7; "Alaska News Nightly" transcript, January 1, 1990, in "Press Releases thru FY93" file, AKSO-RS.

¹⁰ Anchorage Daily News, February 19, 1990, E7. Ramona Barnes (R-Anchorage) introduced House Bill 415 on January 15, while George G. Jacko, Jr. (D-Pedro Bay) introduced House Joint Resolution 74 on January 31.

¹¹ Anchorage Daily News, March 11, 1990, B1. The Native-preference idea was manifested in a bill introduced by Rep. F. Kay Wallis (D-Fort Yukon).

¹² In mid-April, the Alaska Federation of Natives held a two-day conference seeking a unified Native position and decided that Cowper's proposal, while not ideal, was practicable and deserved widespread support. Anchorage Daily News, April 6, 1990, B4; April 10, 1990, B1; April 12, 1990, B2; May 10, 1990, D1.

¹³ Other subsistence-related bills in the regular 1990 legislative session included HJR 90, submitted by the House Transportation Committee, and SJR 78, submitted by the Senate Rules Committee at the request of Gov. Cowper.

¹⁴ Federal Register 55, April 13, 1990, 13922; June 29, 1990, 27114. Glenn Elison (USF&WS) received 72 comments during the 30-day comment period.

¹⁵ Federal Register 55, June 8, 1990, 23522; June 29, 1990, 27114; "Proposed Temporary Rule," June 1, 1990, in "Temporary Regs" file, AKSO-RS. Elison and Howse received 152 comments during the ten-day public comment period; 109 oral comments at the four public meetings, plus 49 written comments. Some aspects of the proposed rule were released in mid-May; see Anchorage Daily News, May 11, 1990, A1.

¹⁶ Anchorage Daily News, June 23, 1990, A1; L. J. Campbell, "Subsistence: Alaska's Dilemma," Alaska Geographic 17:4 (1990), 85.

¹⁷ Campbell, "Subsistence," 86; Anchorage Daily News, June 29, 1990, A1. The Senate bill was passed only by extraordinary parliamentary means. On June 30—in the midst of the special session, and just hours before the federal regulations were scheduled to be implemented—the House, on a unanimous vote, rushed through a resolution (HR 16) requesting that the state Supreme Court extend the deadline. State lawyers, in response, made a last-minute appeal to stop the federal assumption. But two days later the Court denied the state's motion.

¹⁸ Federal Register, June 8, 1990, 23521-36; June 29, 1990, 27114, 27117. These regulations, and the subsequent Final Rule published on May 29, 1992, contained specific statements that the regulations would not apply to NPS units where subsistence uses are not allowed. In large part due to NPS input into the regulatory drafting process, a separate clause was adopted in 1992 stating that the Federal Subsistence Board regulations would not supercede agency-specific language. This clause clarified that existing NPS subsistence regulations would not be affected by the new FSB regulations.

¹⁹ Federal Register, June 29, 1990, 27115. Lou Waller, in a December 20, 2001 note to the author, notes that Vernon R. Wiggins, the Interior Secretary's Deputy Undersecretary for Alaskan Affairs, played a significant role in excluding navigable waters from the "public lands" definition.

²⁰ Federal Register, June 29, 1990, 27115. Because the State of Alaska still managed subsistence fisheries within the state's navigable rivers, the F&WS was still technically required to submit so-called Section 806 and Section 813 reports reporting on the state's compliance to Title VIII requirements. (See Chapters 5 and 6.) Both of these reports, moreover, were due in the fall of 1990. The state's reduced management role and the fluidity of the situation, however, caused F&WS Regional Director Walter Stieglitz, in October 1990, to write his superiors and ask that the completion of these reports be delayed a year. There being no apparent protest to that request, no further 806 or 813 reports were ever produced. Stieglitz to Director F&WS, October 26, 1990, in 806/813 report file, OSM.

²¹ Federal Register, June 29, 1990, 27116, 27118.

²² Tom Boyd to author, email, July 21, 2000. Lands that had been conveyed via a Certificate of Allotment, however, were not federal public lands, as a key 1990 decision made clear. Several other federal agencies, including the Army and Air Force, also owned land in Alaska. But the four agencies named above managed more than 99 percent of Alaska's public lands, and much of the land managed by remaining agencies (including the Army and Air Force) was not open to subsistence uses.

²³ Public comments during the spring of 1990 (As noted in the Federal Register, "Many commenters advocated subsistence user representation on the Federal Subsistence Board") may have been responsible for a sixth, non-agency member. Anchorage Daily News, May 2, 1986, B1; "Press Conference, Anchorage, Alaska, May 9, 1986," in "Press Releases thru FY 93" folder, AKSO-RS; Federal Register, June 29, 1990, 27116; Lou Waller interview, July 25, 2000.

²⁴ Press releases from the period indicate that during the summer of 1990, the F&WS had no organizational structure that specifically addressed subsistence issues. But by September of that year, a Subsistence Office had been established. Since January 1991, subsistence issues have been the province of the Office of Subsistence Management. See DOI press release, June 6, 1990; F&WS press release, September 26, 1990; and FSB press releases for October 8, 1991 and January 3, 1992, all located in "Press Releases thru FY 1993" file, AKSO-RS; OSM "Fiscal Year 1991 Organization and Staffing" chart, January 23, 1991, courtesy of Nancy Beres.

²⁵ Sen. Ted Stevens press release, October 16, 1990, in "Press Releases thru FY 93" folder, AKSO-RS; John M. Morehead interview, April 23, 2001. New employees in the NPS's Subsistence Division included John Hiscock, Clarence Summers, and Betty Barlond (who began work there in 1989) along with Janis Meldrum and Bob Gerhard (who began in 1991). All but Hiscock and Barlond are still involved with subsistence-oriented duties. As noted in Chapter 8, 1991 was also the year in which the first several park-based subsistence coordinators began work.

²⁶ Federal Register, June 29, 1990, 27123-24; Bob Gerhard interview, January 31, 2001.

²⁷ Federal Register, June 29, 1990, 27119.

²⁸ USF&WS press releases for September 26, 1990, October 4, 1990, and October 16, 1990; all in "Press Releases thru FY 93" folder, AKSO-RS; Federal Register, September 25, 1990, p. 39184.

²⁹ Sitka Sentinel, December 17, 1990, 1; F&WS press release, December 17, 1990; Federal Register 56 (January 3, 1991), 236-39. The board's Sitka, Saxman, and Kodiak meetings were held on October 29, November 13, and November 16, respectively. The two non-Alaska meetings were held in Seattle and Washington, D.C.

³⁰ F&WS press releases for December 10, 1990; February 20, 1991; June 27, 1991; and July 12, 1991, all in "Press Releases thru FY 93" folder,

AKSO-RS.

³¹ F&WS Press Release, October 16, 1990. The Notice of Intent to prepare the EIS was published in the October 25, 1990 Federal Register, p. 43013.

³² FSB, Draft EIS, October 1991, p. VI-6.

³³ Federal Register, June 29, 1990, 27124; McVee to Martin Suuberg, January 31, 1991, in "Regional Councils FY 90-92" file, AKSO-RS.

³⁴ Curtis McVee to Royce Purinton, July 26, 1991; Vernon R. Wiggins to Don Young, January 22, 1992; both in "Regional Councils FY 90-92" file,

AKSO-RS.

³⁵ Richard Marshall and Larry Peterson, A Review of the Existing Alaska Department of Fish and Game Advisory System and a Determination of its Adequacy in Fulfilling the Secretary of the Interior's and the Secretary of Agriculture's Alaska National Interest Lands Conservation Act Title VIII Responsibilities (Anchorage, U.S. Fish and Wildlife Service), June 1991. Despite the June issue date, a July 26 letter noted that the report had not yet been released, and a September 23 letter suggests the report's recent completion. McVee to Royce Purinton, July 26, 1991, and Louis R. Waller to Subsistence Coordinators, September 23, 1991; both in "Regional Councils FY 90-92" file, AKSO-RS.

³⁶ Federal Subsistence Board, Subsistence Management for Federal Public Lands in Alaska, Draft Environmental Impact Statement (Anchorage, U.S. Fish and Wildlife Service, October 1991), vi-x. Notice of the Draft EIS was published in the Federal Register on October 17, 1991, p. 52056.

³⁷ FSB Press Release (F&WS press release 91-49), October 8, 1991; FSB, Subsistence Management for Federal Public Lands (draft), ix; FSB, Subsistence Management for Federal Public Lands in Alaska, Final Environmental Impact Statement, Vol. I, forematter.

³⁸ FSB, Final EIS, pp. V-1 through V-8.

³⁹ Anchorage Times, June 6, 1991, B2; FSB Press Release, December 6, 1991, in "Press Releases thru FY 93" folder, AKSO-RS; Federal Register, December 5, 1991, 63702. The Times article, quoting DOI spokesman Bob Walker, suggested that the fall meeting dates—and thus the delay in the process—were made "to allow time to hold hearings on the issue ... when more subsistence users could attend."

⁴⁰ FSB Press Release, February 4, 1992, in "Press Releases thru FY 93" folder, AKSO-RS; Federal Register 57 (January 30, 1992), 3676-87.

⁴¹ The exact date of completion of the final EIS is unknown. But FWS employee William Knauer, at a February 25, 1992 meeting of the Gates of the Arctic SRC, noted that the volumes were "in the mail now." GAAR SRC minutes, February 25-26, 1992, 3.

⁴² FSB, Final EIS, pp. II-15 through II-18.

⁴³ The notice for the Final EIS was published in the Federal Register on February 25, 1992, p. 6490.

⁴⁴ William W. Knauer (Chief, Boards and Advisory System Branch, F&WS) to Chief, Interagency Coordination and Legal Issues Division, OSM, April 21, 1992, in "Regional Councils FY 90-92" file, AKSO-RS. The Record of Decision was announced in the May 7 Federal Register (p. 19591), more than a month after the decision was made.

⁴⁵ FSB, Subsistence Management for Federal Public Lands in Alaska, Record of Decision (Anchorage, the author, April 1992), 1-6; Federal Register 57 (May 29, 1992), 22940-64; FSB Press Release, June 11, 1992, in "Press Releases through FY 93" folder, AKSO-RS.

⁴⁶ Federal Subsistence Board press releases for December 6, 1991; January 3, 1992, and March 17, 1992; Federal Register, December 9, 1991, 64404 and May 28, 1992, 22530.

⁴⁷ Boyd Evison email, April 17, 2001; John M. Morehead interview, April 23, 2001.

⁴⁸ Terry Haynes to author, email, February 6, 2001; Greg Bos to author, facsimile, October 9, 2001.

⁴⁹ Ann Wilkinson to Advisory Committee Officers, Southcentral Region, November 8, 1991; Royce Purinton to Interior Regional Council Members, March 2, 1992; both in "ADF&G Regional Councils, FY 91-92" folder, AKSO-RS. News that the state-sponsored councils were being eliminated apparently spread imperfectly; notes of the May 28, 1992 Denali SRC meeting [p. 5] stated that "the State Regional Councils will no longer be funded," but minutes of a June 11, 1992 Cape Krusenstern/Kobuk Valley SRC meeting [p. 3] stated that "the current status of the Regional Councils is not clear."

⁵⁰ FSB, Final EIS, February 1992, II-15; FSB, Record of Decision, [April] 1992, 11. Notes from a January 1992 meeting of the Interior Department's Washington Subsistence Policy Group (WSPG) suggest that there was a heated debate over whether there should be 8 or 12 regions. The decision at that meeting was "to stay with 8, but discussion on possibly going to 12." Both BIA and NPS representatives favored 12, but Deputy Undersecretary for Alaskan Affairs Vernon R. Wiggins warned against such a move, contending that because there were 12 landholding regional Native corporations, having 12 regions "might be perceived as making it a 'property' on Native Corporations, and not representative of all subsistence users." Tony Sisto, WSPG meeting, January 14, 1992, in "Regional Councils FY 90-92" file, AKSO-RS.

⁵¹ William W. Knauer to Chief, Interagency Coordination and Legal Issues Division, Office of Subsistence Management, F&WS, April 21, 1992, in "Regional Councils FY 90-92" folder; DENA SRC minutes, May 28, 1992; both in AKSO-RS collection.

⁵² The number of Regional Advisory Council members—a total of 84—were to be apportioned as follows: Region 1, 13 members; Regions 5, 6, 9, and 10, 9 members; and Regions 2, 3, 4, 7, and 8, 7 members. Interim Chair, FSB to The Secretary, June 2, 1993, in "Jun-Sept. FY 93-94" folder, AKSO-RS.

⁵³ Curtis McVee to "The Secretary," n.d. (c. July 8, 1992), in "Regional Councils, FY 90-92" folder, AKSO-RS; USDI, "Charter, Northwest Arctic Subsistence Regional Advisory Council" [etc.], January 19, 1993, in "Regional Councils, Jun-Sept. FY 93-94" file, AKSO-RS. The charters were valid for two years and were to be renewed "every biennial anniversary" of ANILCA. Renewal dates for the various charters have been January 31, 1995; September 5, 1996, September 4, 1998, and September 26, 2000.

⁵⁴ Robert A. Gerhard to [NPS] Subsistence Coordinators, June 2, 1992, in "Regional Councils, FY 90-92" folder.

⁵⁵ These meetings were held in both urban and rural locations. The first was held on October 5 in Glennallen, the last on October 27 in Bethel. Curtis McVee to "Dear Reader," September 23, 1992, in "Press Releases thru FY 93" folder, AKSO-RS.

⁵⁶ The Interior Department did not announce the Secretary's appointments until August 19. Ron McCoy to The Secretary, June 2, 1993, in "Regional Councils, June-Sept. FY 93-94" folder, AKSO-RS; USDI Press Release, August 19, 1993, in "Press Releases thru FY 93" folder, AKSO-RS.

⁵⁷ F&WS, "Federal Advisory System Process and Target Dates," July 11, 1992, in "Regional Councils FY 90-92" folder, AKSO-RS; Curtis McVee to "Dear Reader," September 23, 1992, in "Press Releases thru FY 93" folder, AKSO-RS.

⁵⁸ Richard S. Pospahala to Interagency Staff Committee, May 25, 1993, in "Regional Councils, Oct thru May FY 93" folder, AKSO-RS. Jorgenson was hired by the Forest Service, while the remaining coordinators—and all of the other staff support—were Interior Department (F&WS) employees.

⁵⁹ Pospahala to Distribution List, July 19, 1993, in "Regional Councils, Oct thru May FY 93" folder, AKSO-RS.

⁶⁰ FSB Press Release, September 2, 1993, in "Regional Councils, June-Sept. FY 93-94" folder, AKSO-RS. A final version of the operations manual was completed in April 1995; see USF&WS, Office of Subsistence Management, Federal Subsistence Regional Advisory Council Operations Manual (Anchorage, the author), April 1995.

⁶¹ Anchorage Daily News, June 23, 1990, B1, B3; October 17, 1992, B8.

⁶² "Subsistence: Alaska's Dilemma," 86; Senate Bill History, 1989-1990, SB 555; Anchorage Daily News, November 9, 1990, E2.

⁶³ Sitka Sentinel, October 30, 1990, 1; Anchorage Daily News, October 30, 1990, A1. As noted in the November 11, 1990 Anchorage Daily News

(p. B-4), both an AFN board member and a Board of Game member sought to regain state management during this period by proposing the limitation of subsistence uses to rural residents on Alaska's federal lands. This proposal, however, was never passed by either the game or fish boards.

⁶⁴ Anchorage Daily News, August 13, 1991, A1.

⁶⁵ Anchorage Daily News, June 23, 1992, A8.

⁶⁶ Anchorage Daily News, February 26, 1991, B1; May 18, 1991, B11.

⁶⁷ See the following Anchorage Daily News articles: October 12, 1991, B15; January 4, 1992, B1; March 22, 1992, G3; May 6, 1992, B3; May 8, 1992, B2; and June 5, 1992, A12.

⁶⁸ Dean Dunsmore interview, May 11, 2001. Because of the legal concept of substitution, the state's lawsuit became known as Alaska vs. Babbitt beginning in January 1993.

⁶⁹ Anchorage Times, February 28, 1992, A1, A12.

⁷⁰ Anchorage Daily News, March 3, 1992, B1, B3.

⁷¹ Anchorage Daily News, June 23, 1992, A8.

⁷² Anchorage Daily News, June 1, 1992, B2; June 5, 1992, A12.

⁷³ Anchorage Daily News, June 16-23, 1992, A1; House Bill History, 1991-92, and Senate Bill History, 1991-92.

⁷⁴ Anchorage Daily News, June 24, 1992, A1; October 14, 1992, B2; October 27, 1993, B1, B3.

⁷⁵ Anchorage Daily News, November 30, 1993, D1; January 24, 1995, A1, A8. But as Joan Nockels noted (in "Katie John v. United States: Redefining Federal Public Lands in Alaska," Environmental Law 26 [Summer, 1996], 695-96), Alaska vs. Babbitt remained an active case. She noted that the state "withdrew its challenge and stipulated to dismissal with prejudice. The Ninth Circuit accepted the stipulation. Nevertheless, the consolidated cases proceeded under the case name Alaska v. Babbitt. This is unfortunate because, in Alaska, the case has always been referred to as the dispute. For the purpose of staying consistent with the Alaskan understanding of this dispute, the Note will refer to the Ninth Circuit ruling in Alaska v. Babbitt as the Katie John appellate court decision but will properly cite to Alaska v. Babbitt." Most recent accounts, by way of contrast, consistently refer to the case as Katie John v. USA. For the purposes of this report, therefore, this case (for actions after January 1995) will be called Katie John v. USA or simply the Katie John case.