Alaska Subsistence A National Park Service Management History

K. Miscellaneous Subsistence Management Issues

Although the most common issues that the SRCs faced were related to eligibility and access issues, traditional use zones and wildlife management, other issues arose from time to time. These included trapping issues, attempts to get some of the Interior Secretary's authority (on hunting plan recommendations, SRC charters, the appointment of SRC members, and similar actions) delegated to the NPS's Alaska Regional Director, and issues related to definitions of various key subsistence terms. These will be addressed in the order presented.

As noted in Chapter 6, the NPS and the state had spent much of the 1980s wrestling over whether trapping would be allowed with the use of a firearm in the various Alaska park units. By 1983, the NPS had passed the necessary regulations, but state wildlife officials remained unaware of them until January 1986. The NPS formally asserted its authority in the matter soon afterward, and the agency's various final (November 1986) general management plans stated that "Trapping in national park system units can be conducted only using implements designed to entrap animals." Wrangell-St. Elias's SRC, however, countered that in many parts of Alaska, the trapping of free-ranging furbearers with a firearm was a customary and traditional practice, and it further argued that state law allowed trapping with a firearm; based on those premises, the SRC sent Interior Secretary Donald Hodel an August 1987 recommendation asking that "trapping be allowed with the use of a firearm on Preserve lands within Wrangell-St. Elias National Preserve." W. T. (Bill) Ellis, the SRC's chair, was largely responsible for submitting that recommendation.

Soon afterward, the Game Board responded to Ellis's concerns by legitimizing the practice of same-day-airborne sport hunting. NPS officials, however, were concerned that the Game Board's action had the potential to jeopardize the populations of wolves and other furbearers in the preserves, so in November 1988 the agency issued an emergency, one-year moratorium on same-day-airport sport hunting. In June 1989, it proposed a permanent rule on the subject. Of the hundreds of public comments submitted, a strong majority supported the agency's proposed action. But before a final rule was published, state officials agreed to exclude the preserves from the state's same-day-airborne provisions. That exception went into effect in August 1990, and a Federal Register notice announcing that exception was published soon afterward. [154] But the state's action abrogated the need for moving forward with the final rule, and the NPS's rule making process on the issue was held in abeyance, at least for the time being.

During the early 1990s, same-day airborne wolf hunting remained a high-profile issue among the state's hunters and wildlife managers. In 1992, for instance, the State Game Board decided to prohibit same-day airborne wolf hunting and it continued its prohibition against land and shoot trapping, but in 1993, the Board reversed course and relaxed its land-and-shoot trapping regulations. None of these actions, it must be emphasized, legalized either same-day-airborne hunting or same-day-airborne trapping of wolves or of any other furbearers in any NPS areas; taking furbearers with either a hunting or a trapping license had been prohibited since the fall of 1988. Even so, however, NPS officials were concerned about two lingering issues. First, many worried that the 1993 Game Board decision had relaxed the state's land-and-shoot regulations as they pertained to NPS areas. A second concern, similar to the first, was that they were concerned about future Game Board actions and wanted to guarantee that those actions—whatever they might be—would not lessen protection for the parks' furbearers from either hunters or trappers that employed land-and-shoot methods. In response to these and similar concerns, the agency in September 1994 prepared a revised proposed rule. That rule had two parts: one part restated the agency's prohibition on land-and-shoot hunting on areas under its jurisdiction in Alaska, while the other part "clarif[ied] the existing NPS prohibition of using firearms and other weapons to take free ranging wildlife under a trapping license on lands under the jurisdiction of the NPS in the State of Alaska." The firearms prohibition, however, was not ironclad, because it "expressly recognize[d] as an exception, the common trapping practice of using a firearm to dispatch wildlife that is already caught in a trap." The revised proposed rule was published in the Federal Register on November 15, 1994; the public was given 30 days to provide comments. [155] But many of those who initially commented on the trapping provisions were apparently confused about the rule's intent and effect, so as a result, the agency issued another rule on April 14, 1995 that opened up the comment period for another 60 days. [156]

Only two SRCs provided comments to the rule, but both strongly opposed it. Raymond Paneak, speaking for the Gates of the Arctic SRC, stated that "the NPS seems to have a problem ... interpreting trap to mean only using an implement designed to entrap animals, under a trapping license, and to eliminate the customary and traditional practice of incidentally taking furbearers with firearms, which are free-ranging." He stated that "100% of the GAAR subsistence trappers used and currently use ... the customary and traditional practice of shooting free-ranging furbearers under a trapping license," and charged that the agency's "ill-thought out definition, and [its] enforcement of a 14 year old unenforced definition, ... drastically reduce[s] the limits concerning hunting bag limits for shooting furbearers." The Denali SRC, in a similar vein, "unanimously opposed the restriction of use of firearms in taking furbearers under a trapping license" and asked that the agency's definition of "trapping" be redefined to include taking "by any traditional and customary means. This includes the use of firearms and bow and arrow." [157]

Opposition from two of the state's major SRCs caused NPS officials (particularly those at Denali and Gates of the Arctic) to rethink the necessity of issuing a final rule on the subject. Meanwhile, the other half of the November 1994 proposed rule—that dealt with land-and-shoot hunting—was issued as a final rule on April 11, 1995. In a key modification of terminology, the proposed rule (which proposed a prohibition on land-and-shoot hunting) was re-interpreted as a prohibition of land-and shoot taking (which included both hunting and trapping). This definitional reinterpretation, to a large extent, provided NPS managers much of what they had been seeking when they had formulated the proposed firearms clarification rule in September 1994. [158]

Although SRC members and other subsistence users took some comfort in knowing that the firearms rule had not been finalized, many continued to advocate that the NPS renounce it. During the review period that preceded the issuance of the "issues paper," for instance, both the Denali and the Wrangell-St. Elias SRCs passed motions opposing the NPS's proposed rule. The final issues paper, as a result, presented a mixed message: it stated that "a firearm is not an approved method of taking free roaming furbearers under the authority of a trapping license." The NPS, it continued, "acknowledges the longstanding practice of doing so under state regulations, but [it] has a concern for high trapping harvest limits for many furbearers." [159]

Since the publication of the issues paper, NPS officials have attempted to tread a delicate middle ground on the firearms trapping issue. At the SRC chairs' meeting in October 1998, the chairs recommended that NPS officials "continue to work on the issue of trapping regulations, and the prohibition of use of firearm under a trapping license." In response, the NPS admitted that "this has been [a] difficult issue for us. While a strict reading" of the regulations prohibited the practice, the agency admitted that "there is a longstanding practice of doing so under state regulations." The NPS further concluded that "it may be difficult to attempt a change in our regulations at this time." Similar pleas from the SRC chairs at the fall 1999 and fall 2000 meeting have brought similar replies from NPS officials. [160] Meanwhile, individual SRCs continued to tell the NPS about the folly of its regulation. Gates of the Arctic SRC member Jack Reakoff, for instance, stated that "he can't really back off on this issue, although he is not sure how to proceed from here." In response, agency officials were equally candid; as Gates of the Arctic subsistence coordinator Steve Ulvi told his SRC, "we are in a non-enforcement scenario for something that is traditionally done, which is not a good solution." [161]

A second "miscellaneous" subsistence issue dealt with during the 1990s—and solved to some extent—was the nettlesome problem of authority delegation. Since the establishment of the SRC back in 1984, SRC members (and many NPS officials, too) felt that many necessary actions related to SRC operations were either delayed or completely overlooked because most SRC communications were directed to the Interior Secretary in Washington, D.C. The Interior Secretary's office, not surprisingly, had little institutional expertise in subsistence-related matters, and it also had an overwhelming number of other demands that competed for its time and attention. As a result, both routine actions (such as the appointment and re-appointment of members) and the evaluation of hunting plan recommendations often took months or even years. By the end of the 1980s, NPS officials were well aware of the SRCs' frustration related to this topic, but they made no moves to change the system. But they also knew that State of Alaska officials liked the fact that the current system gave both the state and federal governments a prominent role, and they were wary that any moves toward authority delegation conveyed the appearance that the NPS was acquiring additional powers. [162]

This frustration continued into the 1990s, and in 1991 the Wrangell-St. Elias SRC became sufficiently concerned about the problem that they sent the Interior Secretary the following resolution: "To improve the timely appointment and reappointment of Secretary appointees to the Commission, we request that you delegate your appointment authority to the Director of the National Park Service." Secretary Lujan, however, responded by requesting the NPS to speed up its appointments deadline. "There is no need to delegate my appointment authority to assure timely appointments," he noted. [163]

The issue simmered for the next several years and was partially addressed in the NPS's August 1997 issues paper. It noted that "as a result of recent restructuring ... the majority of decision-making for subsistence issues in Alaska is now vested in the Superintendents of parks where subsistence issues occur, but is still subject to review at the regional and national levels as appropriate. In accordance with the language of Section 808 of ANILCA, ... hunting plan recommendations must still be submitted to the Secretary of the Interior ... but many issues can and are being resolved at the local level." SRC members, however, wanted more, and at the October 1998 chairs' meeting a resolution was passed stating that Secretarial response times to SRC recommendations were "unacceptable." Just one month later, the Secretary's office, for the first time, allowed the NPS's Regional Director to respond to a hunting plan recommendation. When it came time to respond to the chairs' request, therefore, the NPS was able to note that the agency was in "preliminary discussions with the Secretary of the Interior's office concerning the possibility of the Secretary delegating the response to your hunting plan recommendations to the Regional Director in Alaska." [164] Moving proactively on the issue, Regional Director Robert Barbee wrote to Assistant Interior Secretary Don Barry in July 1999 and specifically requested formal delegation of signature authority on all hunting plan recommendations. Two months later Barry granted that authority, at least as it pertained to "straightforward issues." The SRC chairs, encouraged at the news, asked the NPS to develop an appeal procedure in case disagreements arose with the regional director's decisions. The agency, in response, made it clear that such an appeal procedure already existed. "If you have a disagreement with a response from the Regional Director," an official noted, "you can write to the Secretary with your concerns." [165]

A final, vexing issue that the SRCs addressed was that of definitions. ANILCA and the 1981 regulations based much of its subsistence policy emphasis on specific terms, but as Chapter 6 notes, it was less than forthright in applying exact definitions to terms such as "customary and traditional," "natural and healthy" and "customary trade." Because neither Congress nor the Interior Department defined these terms with any degree of specificity, both the NPS and the various SRCs discussed these terms in some detail during the 1980s. In more recent years, attempts to define critical subsistence-related terms have met with mixed success. A discussion related to "significant concentrations" has been presented (see Section G, above); in this section, similar efforts are made in defining "natural and healthy" and "customary trade."

As noted in Chapter 6, neither the NPS nor the SRCs had much progress in defining "natural and healthy" during the 1980s. The NPS made little headway because of the sheer difficulty of formulating a definition that would be broadly accepted; and the SRCs were reluctant to finalize any measure that had the potential to limit subsistence harvests. This state of affairs continued on into the 1990s. At Gates of the Arctic, Superintendent Roger Siglin responded to a 1992 SRC recommendation—one that asked the NPS to protect an area's subsistence resources until it reached a "harvestable level"—by asking the agency to define "natural and healthy ... so that SRC members can use commonly agreed upon terminology in their recommendations or challenge our definition of terms if they are so inclined." The recommendation, as it turned out, was rejected because the Interior Secretary interpreted the term "harvestable level" to be akin to the maintenance of a "healthy" population (as the national preserves were supposed to be managed); the parks and monuments, by contrast, were to be managed "to maintain traditional NPS management values" in which the manipulation of "habitat or populations to achieve maximum utilization of natural resources" was prohibited. The Interior Department, therefore, took a small first step in defining "natural and healthy;" though it could not otherwise be more specific, the term clearly did not allow for wildlife or habitat manipulation. [166]

Dave Spirtes, the superintendent of Bering Land Bridge National Preserve since 1994 and Western Arctic National Parklands since 1996, has been a leader in the "natural and healthy" issue and numerous other subsistence-related topics. NPS (AKSO)

A few months later, at an SRC teleconference, two members asked park staff to define various subsistence-related terms. Subsistence coordinator Steve Ulvi responded by noting that "natural and healthy" was "used in reference to the NPS's mandate for managing wildlife populations that are used for subsistence. ... Wrangell-St. Elias National Park staff is currently working on a proposal for management of the Mentasta Caribou herd that defines the term. Other agencies will have to buy into the idea for it to work." The plan, in fact, defined "natural," but it was silent regarding a definition of "healthy." [167] A year later, as noted above, the so-called "subsistence task force" spent the summer reviewing NPS subsistence management policies. Gates of the Arctic Superintendent Steve Martin, a key member of the task force, stated at the outset that a primary task force goal was "to decide ... what criteria to use for natural and healthy populations." The "natural and healthy" issue was, in fact, debated in some detail during the preparation of the task force's original (1994) report. Then, in August 1995, a ten-person working group that included three superintendents spent a day in Fairbanks mulling over the issue, and perhaps in response, Bering Land Bridge Superintendent David W. Spirtes produced his own draft report on "NPS Wildlife Policy for ANILCA Areas" that spent several pages analyzing the "natural and healthy" issue. [168]

By early 1997, the Alaska Cluster of Superintendents (ACS) recognized that "there is still some internal [definitional] debate between parks and preserves," and to clear up the issue it asked the region's Natural Resource Advisory Council (NRAC) to prepare a report comparing "natural and healthy" [as derived from ANILCA] with "optimal sustained yield" [which is ADF&G's guiding harvest principle]. Because of that "internal debate," the agency was unable to produce a clear definition as part of the August 1997 issues paper. Instead, the paper merely noted that the NPS's "major role is to see that [natural and healthy] populations are conserved. To that end, we are developing guidelines (separate from this document) to help evaluate and protect natural and healthy or healthy populations." [169]

In response to the ACS directive, NRAC established a six-person Natural and Healthy Subcommittee, and in February 1998, Rich Harris of that subcommittee produced a draft 16-page report on the subject. Chief among the report's conclusions was that "natural" was defined as "the condition of a biological population, community, or landscape without substantial alteration by humans for other than subsistence activities," and that the definition of "healthy" was "a population that is self-sustaining within its habitat over the long term." Although the subcommittee members were "completely satisfied with our definitions," others were not; Superintendent Spirtes, for instance, felt that the conclusions of the "biological group" were "not rooted in the extensive administrative record of ANILCA or NPS policy." By July 1, Spirtes had produced his own draft treatise on the subject, and on July 23 he issued an updated draft entitled "An NPS Interpretation of Natural and Healthy." Other players, however, took exception to Spirtes's conclusions; Superintendent Martin, for example, felt that "the original review document drafted by the ad hoc committee [i.e., the NRAC subcommittee] provided a more solid basis upon which to further refine the definitions of natural and healthy and the process to apply those definitions." [170] For the time being, at least, the NRAC study appeared to be the primary vehicle for discussion among NPS subsistence decision makers.

In an attempt to create a less contentious path, Superintendent Jon Jarvis recommended that the terms be defined both biologically and legally, and in February 1999 a three-person panel completed work on a report that espoused that approach. That spring, a small group met in Anchorage to finalize the definition, but with no finality at hand, the project was delegated to Hunter Sharp, the chief ranger at Wrangell-St. Elias National Park and Preserve. Jarvis, however, left Alaska soon afterward, leaving Sharp as the park's acting superintendent for the next several months and, by necessity, delaying efforts toward a workable definition. In January 2001, hoping to bring closure to the long, unresolved process, Superintendent Spirtes completed and distributed an updated version of the report from the three-person panel. [171] A month later, agency staff held a conference in Anchorage in hopes of arriving at a consensus on the issue. But despite this and subsequent meetings on the subject, no definitions of either "natural" or "healthy" have yet been agreed upon by all parties. In the various recently-completed park subsistence management plans, the most detailed statement of current status is that

several multi-disciplinary teams of NPS staff from across the State have been tasked to develop the legal and biological assessment framework and definitions of "natural and healthy." ... Once a strategy addressing these concepts is developed that meets the approval of park managers and NPS administrative policies, this document will be presented to the SRC and other entities as appropriate, for review. [172]

Greater progress has been made in recent years in defining "customary trade." As noted in Chapter 6, the various general management plans that were issued during the mid-1980s helped clarify the June 1981 definition as it pertained to specific park units, and in 1989 a minor controversy erupted at Cape Krusenstern National Monument over the sale of dropped (shed) caribou antlers.

Neither the NPS nor the SRCs showed much interest in customary trade issues for the next several years, but the term was discussed at some length during the comment period that preceded the issuance of the August 1997 issues paper. The NPS allotted an entire section of the paper to customary trade, and its primary statement on the topic was largely a restatement of the existing canon. Several commentors, however, disagreed with the agency's policy position and told the NPS that such items as dried fish, crafts, utensils, clothing, meat from hares, and any handicrafts made from animal, minerals, or vegetation should all be permitted for sale under the "customary trade" clause so long as significant quantities of cash were not involved. In response, the agency promised to "work with the Federal Subsistence Board and the state, as appropriate, to ensure that all customary trade practices are recognized and permitted." [173]

A few months after the issues report was distributed, the Western Interior Regional Advisory Council (WIRAC) wrote the NPS and asked that the "customary trade" definition in which "only furs may be exchanged for cash" be broadened to "allow the sale of handicrafts made from nonedible byproducts of fish and wildlife resources." The agency, in response, stated that no conflict existed. As Deputy Regional Director Paul R. Anderson stated, "what you request is and always has been permitted under ANILCA and under NPS regulations." But because there was an apparent misunderstanding on the issue, Anderson dispatched a series of letters to the SRC chairs in December 1998 that clarified NPS policy in the "customary trade" arena. [174]

The SRC chairs, upon reading those letters, recognized that the agency's customary trade policies, in many cases, did not allow the continuation of many historically-established trading patterns. At its October 1999 meeting, therefore, the chairs suggested that each SRC "review the NPS customary trade regulations to ensure that local customary trade practices are recognized and authorized ... and that NPS customary trade regulations should be consistent with Federal Subsistence Board regulations." The NPS, in response, was quick to agree that these regulations "should to the extent possible address local customary trade practices," so it asked the various SRCs to "review this issue[,] provide us with your recommendations", and provide "whatever specific information you have about those practices." [175] Several SRCs responded to the agency's request for information and recommendations. In October 2000, the SRC chairs again raised the issue. The NPS, hoping to move the issue forward, promised to convene a small group of park and regional office staff to discuss customary trade issues. From that meeting, it hopes to prepare some draft regulatory language, or at least some guiding principles, to accommodate those practices. [176]