Alaska Subsistence
A National Park Service Management History
NPS Logo

Chapter 9:

C. State and Federal Responses to Katie John, 1995-1999

On the heels of the Katie John decision, Alaskans—and their representatives in Washington—recognized that the federal government was going to assume the management of the subsistence fisheries on a major portion of the state's federal land unless some alternative could be worked out. Those who hoped to avoid federal assumption soon recognized that several possible solutions—some judicial, some legislative—were available. First, State attorneys could pursue judicial means to overturn the Katie John appeals court decision. Second, State attorneys could try to get the federal government out of the subsistence management arena by arguing that the fish and game management was a state, not federal function. Third, the Alaska legislature could pass a bill that would amend the state constitution so as to conform to ANILCA. Fourth, Alaska's legislators in Congress could push for the passage of a bill that altered ANILCA and eliminated the rural-preference provision. And fifth, Alaska's Congressional delegation could, through parliamentary means, delay the implementation of federal fisheries management until one of the other four options could be implemented. Each of these possible solutions was contemplated, and many were acted upon (sometimes repeatedly) between 1995 and 1999. A brief chronicle of these actions follows.

Tony Knowles
Tony Knowles, the Governor of Alaska since 1994, has consistently supported the idea that the state should manage all of Alaska's fish and game resources; similarly, he has been a consistent supporter of having the Alaska legislature adopt a bill giving Alaska's voters the opportunity to vote on a subsistence-related amendment to Alaska's constitution. Office of Gov. Knowles
Fran Ulmer
Fran Ulmer has served as Alaska's lieutenant governor since 1994. In 1995, she championed a "rural plus" proposal for bringing the state into compliance with the federal subsistence statutes; in addition, she has taken an active role in several task forces related to the subsistence issue. ADN

One of the first major state actions, which was taken even before the Appeals Court rendered its verdict, was to withdraw from a case alleging that the state—not the federal government—was legally entitled to manage subsistence resources. As was first noted in Chapter 7, Hickel administration officials, in February 1992, had filed a suit (called Alaska vs. Lujan) that challenged the authority of federal agencies to take over subsistence management. District Court Judge Holland, in March 1994, had ruled against the state in this suit. (By this time the suit, now called Alaska vs. Babbitt, had been consolidated with Katie John vs. USA). Then, shortly after being sworn into office, Governor Tony Knowles announced his intention to drop the lawsuit. Many members of the Republican-dominated legislature were enraged by Knowles' action; they vowed that they would attempt to intervene in the case, and they hurriedly committed $20,000 to support a team of Washington lawyers who promised to represent them. But in early February 1995 the Ninth U.S. Circuit Court of Appeals rejected the legislature's action, ruling that the legislature was "not empowered under state law to intervene in this appeal." [29]

As noted above, state lawyers responded to the April 1995 appellate-court decision in the Katie John case [30] by attempting to have it overturned. Their initial efforts, however, were less than successful. On August 8, the federal appeals court rejected the state's request for a reconsideration of the Katie John ruling. Given that rebuff, representatives from the state Attorney General's office got ready to appeal the case to the U.S. Supreme Court. State lawyers were heartened by a series of actions that took place in the months following Wright's decision. In August 1995, the Alaska Supreme Court's decision in the Totemoff case (Totemoff v. Alaska) "defiantly lays out the case for why all navigable waters fall under state jurisdiction," according to one news account. And four months later, a dissenting opinion in the Katie John appeal was made public; that opinion reiterated the need, first expressed in April 1995, to solve the fisheries dispute through the legislature, not the courts. [31]

Once the Katie John case was decided by the Ninth Circuit Court, the door remained open for the state legislature to produce a bill that recognized a rural subsistence preference and otherwise conformed to federal subsistence guidelines. [32] But the 1995 legislature, which was nearing the end of its regular session when the appeals court issued its ruling, made no particular efforts prior to its May 16 adjournment to pass a bill bringing subsistence management back to the state. (The legislature may have been hoping that the U.S. Supreme Court would overturn the appeals court ruling.) The appeals court, during this period, made no effort to assign a deadline for federal assumption of subsistence fisheries resources; instead, it deferred to the Supreme Court, which was expected to decide in the spring of 1996 if it would accept the Katie John appeal. Meanwhile, Governor Knowles hired Julian Mason as a mediator, who exerted some quiet diplomacy in hopes of creating some common ground between the disparate factions. [33]

Late in 1995, Governor Tony Knowles and his lieutenant, Fran Ulmer, began exploring new options to a federal takeover. Early in his administration, Knowles had made it clear that he would accept virtually any subsistence solution so long as it adhered to two basic principles: 1) that the state, not the federal government, should manage Alaska's fish and wildlife resources, and 2) the essential role of subsistence in the culture and economy of rural Alaska needed to be protected. [34] In early November, word leaked out that administration officials—hoping to solve the subsistence dilemma within these two parameters—had been quietly meeting with hunting and fishing groups; out of those meetings emerged a plan, spearheaded by Ulmer. That plan, which was unveiled on November 15, had three major tenets: 1) a concept called "rural plus," that guaranteed subsistence privileges both to rural residents and to those who had rural roots, 2) implementing changes to the Alaska Lands Act, and 3) amending the Alaska Constitution so as to conform with the Alaska Lands Act. [35] In response to criticisms of the plan, primarily by outdoor groups, Ulmer modified portions of her plan over the coming weeks. By early February 1996, she had completed a revamped plan—still in provisional form—and then pitched it to various interested parties. [36]

The major body to which she presented her plan, of course, was the Alaska State Legislature, which had begun its annual session in January 1996. But despite Ulmer's Herculean efforts, state legislators showed no particular inclination to move any subsistence bill that demanded changes to the Alaska constitution. Before long, the federal appeals court—still not knowing how the Supreme Court might act—ordered the Interior Department to begin the preparation of regulations for the assumption of fisheries management. It was widely anticipated at this time that the federal government would assume control over the subsistence fisheries later that year, perhaps in October. A federal assumption of fisheries management, however, would take place only if the Supreme Court refused to act.

This rough timetable was torn asunder on March 6 when Alaska's Congressional delegation moved to delay the process resulting in a federal fisheries assumption. Ted Stevens, a longtime member of the Senate Appropriations Committee, inserted a clause into an Interior Department spending bill that delayed any possible federal assumption until October 1, 1997. Interior Department official Deborah Williams protested the move, stating that it "directly contradicts the order of the 9th Circuit," and AFN President Julie Kitka echoed Williams' disappointment. Both, however, recognized that because of the power exerted by the Congressional delegation, little stood in the way of the provision becoming law. The delegation, by its action, hoped that the one-year moratorium would give the Alaska Legislature sufficient time to pass a subsistence bill that met federal guidelines. [37]

The provision, at the time, had no direct impact on Alaska fisheries management. But during the next two months, Stevens' action assumed a far higher level of importance. Several reasons buttressed that assumption. First, it became increasingly obvious that the subsistence compromise brokered by Lt. Governor Ulmer had failed because state legislative leaders refused to accept its provisions; the legislature, in fact, adjourned in early May 1996 without seriously addressing the issue. (A special session was held that year, but subsistence issues were not addressed during the thirty-day session.) [38] Another factor contributing to the heightened importance of Stevens' action was the U.S. Supreme Court's refusal, on May 13, to accept the state's appeal of the Katie John case. All parties now recognized that, with other options foreclosed, time was running out; unless some new action intervened, the federal government in October 1997 would be assuming control over much of Alaska's subsistence fisheries. [39]

Ted Stevens
Ted Stevens, who has represented Alaska in the U.S. Senate since 1968, responded to the April 1995 decision in the Katie John case by giving the state legislature several opportunities to comply with subsistence guidelines as set forth in ANILCA. Office of Sen. Stevens

Federal officials, in response to the appeal court's order, were already at work on drafting subsistence fishing regulations when Senator Stevens moved to delay the fisheries assumption date, and by late March 1996 a confidential blueprint of the draft regulations was aired to the press and public. State legislative leaders, fearing the worst, stated that the regulations called for the "total pre-emption of ... state management of fish and game resources." Interior and Agriculture Department officials, however, responded that they were simply following court orders and that the draft was subject to change before it was released to the public. Deborah Williams noted that "Our highest priority is to assist the state in the resumption of fish and game management. But right now we have to comply with the court orders. ... None of this is to be interpreted as the Department of the Interior seeking control of fisheries to the exclusion of giving the state the opportunity to do so." [40] The regulations, which were officially released to the public on April 4 as an Advanced Notice of Proposed Rulemaking, were indeed broad in their scope. Because the regulations proposed a broad definition of waters where the federal government had "reserved water rights," the federal government was planning to assume control over subsistence fisheries on rivers adjacent to federal lands as well as those within federal lands, and it also outlined how federal agencies would limit commercial and sportfishing in state waters if such uses interfered with subsistence harvests. The public was given until June 14, 1996 to comment on the draft regulations. [41]

In order to give the public the opportunity to learn about and evaluate the regulations, federal bureaucrats scheduled nine public hearings during the public comment period; the first was held in Anchorage on May 13, the last in Fairbanks on May 28. The Anchorage meeting was attended by about 50 people, but only 18 spoke. Thirteen of those speakers, most of whom represented Native groups, favored the plan; AFN representative John Tetpon, for example, noted that "subsistence users cannot expect a fair hearing from the [state Fisheries Board] and they have in fact rarely gotten one ... Our dependence on the federal government to protect our way of life has been because they are our last resort." But the plan had three major critics: the Republican-led legislature, the Knowles administration, and the Alaska Outdoor Council. Assistant Attorney General Joanne Grace, one of those critics, complained that the plan "goes well beyond the priority that Congress actually granted ... and gives the Federal Subsistence Board authority that Congress did not intend it to have." And Attorney General Bruce Botelho said that it was "unworkable and highly offensive to the principles of state sovereignty" to propose limiting harvests on state lands in order to ensure adequate subsistence harvests on federal lands. But Interior Department representative Deborah Williams defended the plan; she noted, somewhat apologetically, that "There's not a single person in the Department of the Interior, to my knowledge, that wants to do this. But everyone realizes that in the absence of state action, we're required by law to do it." [42] By December 1996, Fish and Wildlife Service officials were "drawing up proposed fishing rules for public comment next summer" because they wanted to be ready to implement those rules, if necessary, by the October 1, 1997 deadline. [43]

By the fall of 1996, a broad spectrum of Alaskans recognized that the only realistic way in which Alaskans could forestall the federal assumption of subsistence fisheries management was for the Alaska legislature to pass a bill, signed by Governor Knowles, that would allow Alaskans to vote on an amendment to the Alaska constitution providing for a rural subsistence preference. [44] That vote by the state legislature would then have to be followed by its approval by a majority of Alaskan voters. As noted in Chapters 4, 5 and 6, Alaskans had voted on and approved a subsistence measure in the November 1982 election; during the 1978 and 1986 legislative sessions, moreover, the state legislature had approved subsistence bills. When polled on the subject during the 1990s, a strong majority of Alaskans—urban as well as rural—felt that the Alaska legislature should pass a subsistence bill that fit within ANILCA's framework so that Alaska's voters would at least have an opportunity to express their opinion on the subject. (By 1998, one poll showed that 90 percent of Alaskans wanted the chance to vote on the issue.) [45] That majority, however, was not reflected in the opinions of the Republican-dominated legislature. The legislature, dominated by urban interests and often described as conservative, seemed to have little interest in passing a subsistence bill that conformed to ANILCA; by its inaction, it prevented such a statewide vote from taking place.

That trait, for better or worse, continued during the 1997 legislative session. On May 12 the first session of the twentieth Alaska legislature adjourned without passing any measure—either the administration-backed resolution (HJR 10) or any other—that would have averted the assumption of subsistence management by federal authorities. The Knowles administration, recognizing that time was running out, began working with Alaska's Congressional delegation in hopes that minor changes in both state and federal law could avert a takeover. [46] By mid-June, the Congressional delegation had proposed several amendments to ANILCA, and on July 10, the "high-level task force" that Governor Knowles had convened [47] was urging the adoption of a plan that addressed the state constitutional issue. But problems immediately surfaced with both proposals; the Alaska Federation of Natives protested that the Congressional delegation's amendments were divisive and discriminatory, and the Alaska Outdoor Council—which backed a far different proposal—denounced the Knowles task force plan because it "asks Alaskans to forfeit equal protection without eliminating the discriminatory process that strips certain Alaskans of their inherent rights." [48] Knowles, still hoping to find a way to avert federal fisheries management, redoubled his efforts with the task force, but he was unable to persuade legislative leaders to hold a special session during the weeks that preceded the October 1 deadline. [49]

Julie Kitka
Julie Kitka, president of the Alaska Federation of Natives since 1989, opposed tactics that delayed the implementation of the Katie John decision for more than four years. ADN

During this period, federal officials reluctantly recognized that they might be assuming fisheries management on many of Alaska's navigable rivers despite the best intentions of both state and federal officials. As part of their planning effort, those officials had to decide whether the expansion of the federal subsistence program into the fisheries arena demanded the preparation of an environmental impact statement. Recognizing that federal subsistence managers had prepared a major EIS back in 1990-92, at the commencement of the federal program, officials tentatively decided that inasmuch as fisheries management was an expansion of an existing program, any impacts addressed by that expansion could be addressed in an environmental assessment (EA) rather than in an EIS. Based on this decision, federal subsistence officials went to work on the EA and completed it on June 2, 1997. The EA also concluded that "no significant impacts to fisheries resources and subsistence, sport or commercial fisheries would occur" with federal subsistence fisheries management. The two Secretaries promised to reassess the need for an EIS prior to the issuance of a Final Rule (i.e., a finalized set of subsistence fisheries regulations). [50]

By early September 1997, state leaders had apparently given up hope that a federal takeover could be averted prior to the October 1 deadline. But starting about September 15, Knowles and Babbitt began discussing the parameters of a possible delay, and given their concurrence, the two sought out Senator Ted Stevens in hopes of securing a second postponement of federal intervention. [51] Beginning on September 28, Stevens (who, by good fortune, served as the chairman of the Senate Appropriations Committee) began meeting Knowles and Babbitt. After "two hard days of closed-doors bargaining," a deal was reached. Stevens was able to delay the deadline fourteen months, from October 1, 1997 to December 1, 1998; by the latter date, he postulated, there would be sufficient time for the Alaska legislature (given one last chance) to approve a constitutional amendment and also sufficient time for a statewide vote to be held on the issue. Because all parties agreed that it was in Alaska's best interest to have state law in conformance with ANILCA, the three parties agreed to two key ANILCA amendment proposals that served as "an inducement for a reluctant Legislature to act." These provisions, according to some observers, gave greater deference to the state in subsistence fish and game management. At Stevens' behest, they were slipped into an Interior Department appropriations bill, the passage of which—all parties recognized—was a "near-certainty." [52] Stevens announced the agreement with a note of finality: "This is probably the last thing we can do to give the state Legislature an opportunity to act. We'll just have to wait and see what the Legislature is going to do." Alaska Native leaders severely criticized the backroom nature of the last-minute negotiations; they stopped short, however, of opposing the overall agreement. [53]

Federal officials, who continued to use a carrot-and-stick approach during this period, made several moves during the months that preceded the Alaska State Legislature's 1998 session. As noted above, they had issued an "advanced notice of proposed rulemaking" related to subsistence fisheries management back in April 1996, and after a June 1996 deadline they had begun evaluating those comments in an attempt to formulate proposed regulations related to subsistence fisheries management. The Interior and Agriculture secretaries approved the results of that evaluation by December 4, 1997; eleven days later, the Proposed Rule on the subject was released to the public. The verbiage within that rule specified how the federal government intended to administer a fisheries management program. [54]

Many of the proposed regulations—regarding seasons and bag limits, methods and means of fishing—were in large part a duplication of existing state regulations. But in at least three specific subject areas, officials let it be known that the federal management system would be a departure from the status quo. First, regulations pertaining to customary trade were more broadly applicable in the proposed federal system than they were in the existing state-managed regime. Second, the new rules were specific regarding which waters federal authorities intended to manage. Federal agency heads, after weighing several alternatives, decided that they planned to manage 102,491 miles of inland waterways. [55] This alternative included "all navigable waters within the exterior boundaries of listed Parks, Preserves, Wildlife Refuges, and other specified units managed by the Department of the Interior and all inland navigable waters bordered by lands owned by the Federal government within the exterior boundaries of the two National Forests." [56] This alternative was chosen because "it would fully implement the Ninth Circuit's ruling while avoiding the serious management difficulties that would arise from checkerboard jurisdiction over segments of rivers within Department of Interior Conservation System Units...". The third change pertained to those lands and waters that were not placed under federal jurisdiction, and it was a reiteration of language that had first been included in the agreement that Stevens, Knowles, and Interior Department officials had worked out in September 1997. These proposed ANILCA amendments would clearly specify that the Secretaries are "retaining the authority to determine when hunting, fishing or trapping activities taking place in Alaska off the public lands interfere with the subsistence priority on the public lands to such an extent as to result in a failure to provide the subsistence priority and to take action to restrict or eliminate the interference." The publication of the proposed regulations, at least at first, did not cause much of a stir, primarily because most of them were a reflection either of existing federal subsistence rules (as they related to wildlife management) or of existing state fishing regulations. [57]

But despite Stevens' advice, and despite the federal government's issuance of proposed subsistence fisheries regulations, the Alaska legislative leadership made no attempt to formulate or present a subsistence bill that conformed with ANILCA's provisions. Instead, it took an opposite tack. On January 12, which was the first day of the 1998 session, the Alaska Legislative Council (ALC)—fourteen lawmakers, mostly Republicans, whose role was to act on the Legislature's behalf when the body was not in session—filed suit in the U.S. District Court in Washington, D.C. This suit challenged the authority of the Department of the Interior to pre-empt state management of fish and game in Alaska. This suit, called Alaska Legislative Council vs. Babbitt, was similar to the Alaska vs. Babbitt case that the Knowles administration had dropped in early 1995; by filing its suit, the legislature (which had vociferously protested when the administration had abandoned the suit) signalled its intent to revive the arguments that the Hickel administration had originally propounded back in 1992. [58] The ALC was careful to file its suit in the District of Columbia District Court because previous filings regarding ANILCA and subsistence "have not fared ... well" in either the District Court in Alaska or the Ninth Circuit Court of Appeals. On January 23, Interior Department lawyers asked the D.C. District Court to move the case back to Alaska; that move was denied, however, and the case was eventually heard by D.C. District Court Judge James Robertson. [59]

Aside from the ALC lawsuit, Alaska's legislators made several moves in 1998 on subsistence-related issues. At first, prospects for an bill aimed at solving the subsistence dilemma seemed particularly bleak; on the session's first day, for example, House members Mark Hodgins (R-Kenai) and Vic Kohring (R-Wasilla) introduced a bill (HB 295) that would have prohibited state troopers from enforcing federal statutes or regulations on subsistence hunting and fishing in Alaska when those laws or regulations violate either the state or federal constitution. [60] Although the Knowles administration attempted to convince lawmakers to adopt the recommendations of the subsistence task force, the resolution containing those recommendations (HJR 46) was not seriously considered. [61] What did emerge from both the House and Senate was a subsistence bill (HB 406) stating that preference for subsistence resources would be limited to areas where a "cash-based economy" was not "a principal characteristic of the economy, culture, and way of life." [62] Inasmuch as many legislators were critical of ANILCA's rural provision, because it provided subsistence privileges to many rural residents that did not take part in a subsistence harvest while denying those privileges to non-rural residents who had a historical pattern of doing so, HB 406 (according to its sponsors) was an attempt to legalize subsistence opportunities for those who truly deserved it. Critics charged, however, that the bill's provisions were so restrictive that subsistence activities might be eliminated virtually everywhere. They also claimed that the bill disregarded community traditions; that it would be a bureaucratic nightmare; and—perhaps most important—that it would not prevent a federal takeover of the state's fisheries. [63]

The legislative session adjourned for the year on May 12. Well before that time, however, Knowles had made it known that he would veto the legislature's bill, primarily because it did not resolve the state's subsistence quagmire. [64] As an alternative, he called the legislature into a special session, which was to begin on May 26.

Just one day after legislators adjourned, a new group called Alaskans Together came into being. That group, headed by Anchorage businessman and sportfishing advocate Bob Penney, was formed with the sole purpose of allowing Alaskans a statewide vote on a subsistence bill. [65] Knowles, for his part, hoped that the legislature would adopt a resolution (HJR 101) that was based on the recommendations of his 1997 subsistence task force. (In an attempt to mollify legislators who chafed at ANILCA's perceived inequities, this bill would "allow" the Legislature to adopt a rural preference but did not "require" one.) On May 28, however, the resolution fell victim to a 20-20 tie vote in the House; given that vote, the Senate never voted on it. The special session sputtered to a close on June 1 without adopting any sort of subsistence bill. [66]

The indefatigable governor, still hoping for a solution, pressed state leaders for yet another vote on the issue. On July 3, he ordered the legislature back for a second special session, to begin on July 20. Legislative leaders—many of whom had been part of Knowles' task force—told the governor that they were frankly uncertain as to whether a bill could be passed that was compatible with ANILCA's provisions. House leaders, building upon efforts made in the previous special session, cobbled together one plan that made some effort among fellow legislators. But the last-ditch plan was unable to garner a broad base of approval; a House resolution (HJR 201) passed 22-17, five votes short of passage, and the Senate never took a vote. Just two days into the session, legislators voted to adjourn and return to their home districts. [67] Secretary Babbitt, in response, issued a press release expressing his disappointment at the legislature's inaction. The state's failure to act, he noted, "leaves the U.S. no choice but to oppose any extension of the moratorium on final subsistence fishery management rules" and that "the subsistence management requirements of federal law must now be implemented by federal agencies." The federal government, he noted, was fully prepared to begin managing the federal subsistence fisheries beginning December 1. [68]

Bob Penney
In 1998, Anchorage sport-fishing advocate Bob Penney expressed his frustration with the legislature's lack of progress on a subsistence amendment that he organized a group called Alaskans Together. His plan, however, was ignored in favor of Governor Knowles's plan, which fell victim to a tie vote in the Alaska House. ADN

Just three days after they adjourned, lawmakers learned that a district court judge had dismissed the lawsuit (Alaska Legislative Council vs. Babbitt) that the ALC had filed in January. (The judge, James Robertson, had done so because the six-year window in which lawsuits could be filed against ANILCA had lapsed more than a decade earlier.) Legislators, taking a quick glance at the calendar, recognized that just two days remained to pass a bill, calling for a constitutional amendment, that could be voted upon by Alaskans in the November 1998 election. But inasmuch as there was no groundswell of interest for convening a third special session, the electoral deadline passed without incident. The ALC then requested that the case be heard in the District of Columbia appeals court. [69]

Throughout the 1998 state legislative season—the regular session plus the two special sessions—federal bureaucrats had been reluctantly preparing for what, all felt, would be a December 1, 1998 assumption of fisheries management on Alaska's federal lands. Beginning in late January, and extending through late March, the Office of Subsistence Management held 31 public hearings in locations throughout urban and rural Alaska on the proposed regulations that had been issued the previous December. These meetings had two purposes: to educate the public regarding the rationale behind the new regulations, and to receive comments on the relevance and appropriateness of specific proposed regulations. Interested persons were given 120 days—until April 20—to submit comments. In response to particulars in the proposed regulations, many Alaskans submitted oral comments at both public hearings and Regional Advisory Council meetings, and 74 written comments were also submitted. [70]

On August 11, 1998, Alaska Federation of Natives President Julie Kitka wrote to Secretary Babbitt, urging him "to oppose any congressional attempt to continue the current moratorium against implementing the Katie John ruling." Rep. Don Young as well as Sen. Frank Murkowski had, by this time, introduced legislation to extend the Congressional moratorium for another two years. But as late as September 10, Senator Stevens had been consistent in his public statements that he would not pursue an extension. [71] That resolve apparently changed, however, toward the end of September; he met with Secretary Babbitt and attempted to broker a third postponement: a ten-month moratorium ending on September 30, 1999. Babbitt agreed, but the Secretary did so only by convincing Stevens to agree to the following: 1) allowing final regulations relating to federal subsistence fisheries management to be printed, 2) offering $11 million for subsistence management purposes. (If the state legislature succeeded in placing a subsistence amendment on the ballot prior to September 30, the state received the allotment; if not, the funds would be directed to the Interior and Agriculture departments. If the state did not act by June 1—presumably at the end of its regular legislative session—$1 million of the $11 million allotment would be directed to federal agencies as an advance payment.)

Robin Taylor
Robin Taylor, a legislative leader from Wrangell, has long opposed the passage of any subsistence bill that contained rural preference language. Alaska LAA

The Stevens-Babbitt deal was announced on October 13. Babbitt noted that "I do this with some reluctance, because immediate protections would be appropriate. ... But, we must recognize the practical reality that the federal agencies involved need time and planning for orderly implementation of a federal program. This approach provides us that." Stevens, for his part, recognized that he was grateful for the reprieve; "The Secretary drove a hard bargain," he noted, and the remainder of the Alaska Congressional delegation was quick to agree to the deal. The AFN's Julie Kitka, predictably, was "angry and disappointed," but opponents of a rural preference such as Rod Arno (of the Alaska Outdoor Council) and Sen. Robin Taylor (R-Wrangell) were pleased by the action. Some were caught by surprise: ex-Attorney General Charlie Cole felt "duped" by the secret pact, and Interior Department representative Deborah Williams, who was apparently not informed of the negotiations, announced that she was resigning her position shortly after hearing that a deal had been consummated. [72] Language implementing the delay was included in the Omnibus Appropriations Bill that was then being finalized in Congress. [73]

On December 18, just two months after Babbitt brokered his deal with Senator Stevens, the Interior Secretary finalized the final set of regulations pertaining to federal subsistence fisheries management. These regulations were released to the public on January 4, 1999 and were published in the Federal Register four days later. Babbitt, in a press release, said that "These regulations provide the framework we are prepared to undertake this year if the Alaska Legislature fails to take necessary actions. The Department of the Interior is under court order to ensure that Alaska is in compliance with federal law, and with today's announcement we begin the final steps." Babbitt and other Interior Department officials, at the time, expressed optimism that the legislature could pass a bill calling for a constitutional amendment allowing for a rural subsistence priority; if such a bill were passed, the federal government would postpone its assumption of fisheries management until Alaskans had the opportunity to vote on the measure in the 2000 general election. If such a bill were not passed, however, the final regulations—now completed and published—underscored the federal government's resolve to assume management over the subsistence fisheries later that year. (Asked at a January 5 press conference whether any new extensions might take place, Babbitt emphatically responded "No. If the Legislature fails to act this year, we will take over management on October 1, 1999.") Despite the large volume of public response to the December 1997 proposed rule—much of which had come from the ten regional advisory councils—there were few substantial changes between the proposed and final regulations. Subsistence users, moreover, were assured that "Little change in existing subsistence fishing practices in rural areas is initially anticipated under these regulations, because they largely parallel existing state regulations." [74]

It was probably no coincidence that the federal government's final subsistence management regulations were released just prior to the convening of the 1999 session of the Alaska State Legislature, and starting on January 19—when the opening bell rang—legislators felt more pressure than ever to work out a bill that would allow the state to continue managing its subsistence resources. [75] The stark reality, however, was that chances for passage of such a bill were slim in the Senate and questionable in the House. Hoping to move some sort of bill, House Speaker Brian Porter (R-Anchorage) first floated the idea of a bill that would grant a hunting and fishing preference to subsistence users rather than to rural residents. A month later, however, Interior Department officials rejected the idea as being unworkable. In mid-April, Governor Knowles renewed his call for a subsistence solution and asked legislators to pass a bill that would allow Alaskans to vote on the measure. (Knowles, urging legislators to act, said that "if they fail to act on a constitutional amendment, they will be remembered as the Legislature that let in the Trojan horse of federal management.") Stevens, by this time, had told the legislature that it was "your decision, your judgment" because he had washed his hands of the matter, and Senator Murkowski had likewise stated that no more "takeover delays" would be forthcoming. [76] But the legislature showed no particular willingness to address the subsistence issue—one leading legislator noted that it would be a "waste of time" even holding hearings on the issue, considering its many past failures—and it adjourned on May 19 without having passed a significant subsistence bill. [77] Governor Knowles, hoping to avert the looming trainwreck, warned legislators that he would be calling them back into a special session on the topic in either August or September. House Majority Leader Joe Green, for his part, vowed that legislators would meet in a bipartisan "subsistence summit" in hopes of working out a broadly-applicable solution. [78] The summit, however, was never held; as Green later noted, too many legislators were "dug in" on one side or another to warrant such a meeting. [79] Meanwhile, the June 1 deadline (which had been worked at by Babbitt and Stevens the previous October) came and went, ensuring that the federal government received an initial $1 payment to begin preparing for the implementation and enforcement of federal subsistence regulations. [80]

Joe Green
In June 1999, House Majority Leader Joe Green (R-Anchorage) attempted to organize a bipartisan "subsistence summit." But the positions of House members were so firmly entrenched that the idea was soon abandoned. Alaska LAA

In mid-July 1999, less than three months before the October 1 deadline, the District of Columbia appeals court dealt the legislature another blow; it decided to reject the Alaska Legislative Council's appeal of the suit (Alaska Legislative Council vs. Babbitt), that the District Court had dismissed in July 1998, citing the ALC's lack of standing in the matter. [81] Then, on August 10, Governor Knowles announced that he would be calling the legislature back into session in late September. "We are facing a severe threat to our sovereignty," he intoned, "The day of reckoning is here." To give the legislature a head start on its deliberations, he offered specific wording for a proposed constitutional amendment. It read: "The Legislature may, consistent with the sustained yield principle, provide a priority to and among rural residents for the taking of fish and wildlife and other renewable natural resources for subsistence." Legislative leaders, however, were not optimistic; neither the Senate President nor the House Speaker were confident that they could muster up the necessary votes (14 and 27, respectively) to pass the constitutional amendment [ 82]

The special session began on September 22, and one of the state house's first acts was to introduce Knowles' proposed resolution as House Joint Resolution 201. But after a few days of mulling it over, legislators substituted their own resolution (HJR 202), which read

The legislature may provide a preference to and among residents for a reasonable opportunity to take an indigenous subsistence resource on the basis of customary and traditional use, direct dependence, proximity to the resource, or the available opportunity of alternative resources. [83] The preference may be granted only when the harvestable surplus of the resource, consistent with the sustained yield principle and sound resource management practices, is not sufficient to allow a reasonable opportunity for all beneficial uses. [84]

After a few additional days, the resolution—still numbered HJR 202—was reworked to read as follows:

The legislature may, consistent with the sustained yield principle, provide a preference to and among residents to take a wild renewable resource for subsistence uses on the basis of customary and traditional use, direct dependence, the availability of alternative resources, the place of residence, or proximity to the resource. When the harvestable surplus of the resource is not sufficient to provide for all beneficial uses, other beneficial uses shall be limited to protect subsistence uses. [85]

On Tuesday, September 28, House members voted on the resolution, which was controversial because it failed to specify a rural priority. [86] The resolution passed, 28-12. Action then moved on to the State Senate, where members had crafted a more narrowly-defined resolution (a Finance Committee Substitute for HJR 202) calling for a rural preference. In a key vote, held on the morning of Wednesday, September 29, senators voted 12-8 in favor of the proposal. But because the proposed constitutional amendment required a two-thirds vote for passage, the resolution fell two votes short. [87] In a brief Thursday meeting, the Senate chose not to reconsider the vote it had taken the day before, and the decision was made to adjourn. [88] Federal subsistence managers, for better or worse, were in the fisheries business.

<<< Previous <<< Contents >>> Next >>>

Last Updated: 14-Mar-2003