Alaska Subsistence: A NPS Management History (Chapter 9)

Chapter 9:
THE SUBSISTENCE FISHING QUESTION (continued)

On October 1, federal managers implemented the fisheries regulations that had been proposed in December 1997 and finalized in January 1999. By this time, they were already aware that no new regulations would be implemented until March 2001. Inasmuch as the process to establish the next set of regulations (for 2001) would not begin until January 2000, federal subsistence officials spent the fall of 1999 on other matters, chief of which related to budgeting and training. In early October 1999, the Interior Secretary's Alaska representative, Marilyn Heiman, let it be known that the agencies would be free to proceed with the program administration aspects of their proposed fisheries management program. Later that same month, however, Senator Murkowski held a hearing of his Energy and Natural Resources Committee. During the course of that meeting, Secretary Babbitt promised that the fisheries resource monitoring program would not be solely entrusted to federal agencies; instead, it would rely in large part on the existing expertise of the Alaska Department of Fish and Game, Alaska Native organizations and other regional groups. Babbitt also promised that 60 per cent of the federal subsistence fisheries budget would be directed toward fisheries resource and harvest monitoring, not toward program administration. [104] Staff, in response, immediately set to work evaluating which organizations would be eligible for inventory and monitoring projects and how the selection process would proceed. By this time, it had been decided that a separate organization within the Office of Subsistence Management, called the Fisheries Information Service, would oversee the annual inventory and monitoring process.

Note: proposed dates are shown in italics.* The initial federal fisheries regulations were released to the public as a proposed rule on December 15, 1997 and published in the Federal Register two days later. The public was given 120 days to comment on them, and they were discussed at each of the winter 1998 RAC meetings. A final rule was published in the January 8, 1999 Federal Register; it was slightly modified and published as a corrected Final Rule in the Federal Register on July 1, 1999. These regulations remained in effect from October 1, 1999 until March 1, 2001.

Table 9-3. Fisheries Proposals Considered by the Federal Subsistence Board, 2000-present

NOTE: The number of proposals for the 2003 regulatory year (in italics) is an estimate inasmuch as the FSB has not yet evaluated them.

* - The "S/M" column indicates either statewide proposals (S) or those that affected multiple regions (M).

Meanwhile, the NPS and other land management bureaus commenced a large-scale effort to discuss the new management scheme with a broad spectrum of Alaskans. Throughout the month of October 1999, staff from the Office of Subsistence Management and various federal agencies talked at the various regional advisory councils about the new system, and in mid-October 1999 NPS officials spent considerable time on the topic during the annual Subsistence Resource Commission chairs' meeting. Federal officials had long hoped that these meetings would be followed by a two- or three-day training session, which would be open to all regional advisory council members, the Federal Subsistence Board, an array of state and federal officials, and the public. But that meeting, originally scheduled for mid-November 1999, had to be delayed until after the holidays. It was finally held at Anchorage's Egan Convention Center on January 24-27, 2000. The meeting gave all of the major players in the subsistence management scheme the opportunity to present their viewpoints. Furthermore, significant progress was made in informing participants of the status of the federal program, in publicizing the multifaceted nature of subsistence management, and in providing a framework on how decisions would be made during the upcoming fishing season. [105]

By the time of the training session, federal subsistence officials were well underway with the development of an interagency monitoring effort. The Federal Subsistence Board had approved two fisheries monitoring projects—a weir along the Kwethluk River and improved sonar technology at Pilot Station on the Yukon River—at its December 1999 meeting. By late January 2000, moveover, it had outlined 17 proposals, worth a total of $1.25 million, for gathering subsistence fisheries information; these proposals, to be implemented in locations throughout the state, would be acted upon at an federal board meeting in early February. Two months later, the board approved 24 more projects, and at a May 2000 meeting it approved four final monitoring projects. [106]

In the midst of the fisheries training conference, State of Alaska officials let it be known that they still had a vital interest in managing all of the state's navigable waterways. On January 26, 2000, Attorney General Bruce Botelho announced that state lawyers had filed a notice of appeal in the Katie John case (Katie John v. United States). In making such an action, state lawyers explained that they had been premature in appealing Judge Holland's March 1994 District Court decision; it was premature because Holland had not entered a final judgment at that time. Such a final judgment was finally decided—almost six years later—on January 7, 2000. Based on that decision, state lawyers again asked the Ninth Circuit Court of Appeals to evaluate the merits of the Katie John case. Botelho, in announcing the appeal, remarked that "Katie John has a right to her subsistence way of life and we will stand by her." But the case, he reiterated, "is only about the state's authority to manage its own waters." [107]

Governor Knowles and other state officials, during this period, also attempted to stir up momentum for a constitutional amendment in the Alaska legislature. On February 9, legislators introduced the same bill that had cleared the House the previous September. This year, however, Knowles' efforts were met with lukewarm support because of his recent decision to appeal the Katie John suit. Alaska Federation of Natives leaders, in response, hurriedly organized a day-long conference in Anchorage; they emerged from the conference vowing—for the first time ever—not to support a constitutional amendment. Instead, they passed a resolution urging Congress to develop a "Native and rural priority" in managing resources on federal lands. Based on that lack of support, Knowles' bill foundered that year; it was never voted upon by either legislative body. [108]

During the same period in which the legislature was considering Knowles' bill, federal and state officials were hard at work hammering out a formal document outlining the nature of their working relationship as it pertained to subsistence fisheries management. By January 13, 2000, an ad hoc federal-state working group had completed a discussion draft of a Memorandum of Understanding for Coordinated Fisheries and Wildlife Management for Subsistence Uses on Federal Public Lands in Alaska. That document, largely intact, emerged two months later as an Interim Memorandum of Agreement. A panoply of officials—three from the state plus the six members of the Federal Subsistence Board—initialed the document shortly afterward. It became effective when the last signatory—Alaska Game Board Chair Lori Quakenbush—approved the Interim MOA on April 26. [109]

Meanwhile, agencies began beefing up their staffs, in a process that largely followed the budgets that had been proposed in 1998 and approved in late 1999. Most if not all of the four land management agencies gained staff between the fall of 1999 and the spring of 2000. During this period, the NPS gained seven new permanent subsistence-related positions. The first person to be hired, shortly after the October assumption, was program manager Bob Gerhard, who had long been involved in subsistence matters for the agency. (See Appendix 3.) The following spring, the agency obtained four fisheries biologists/managers: Charles Lean, an ex-ADF&G staffer based at the Bering Land Bridge office in Nome; Fred Andersen, another former ADF&G employee who worked out of the Gates of the Arctic/Yukon-Charley Rivers office in Fairbanks; Eric Veach, a former southeastern Alaska Forest Service employee who began working at the Wrangell-St. Elias office in Glennallen; and Mary McBurney, who transferred into the position from other duties in the agency's Anchorage office. Fish and game veteran Dave Nelson, like McBurney, was converted from temporary to permanent status during this period. A final hire during this period was anthropologist Janet Cohen, who had formerly worked in Kodiak for ADF&G's Subsistence Division; she commenced work in Anchorage in June 2000. Veach and Cohen were additionally advantageous to the agency because they had worked for the Nez Perce and Navajo tribes, respectively. [110]

No sooner had the Interim MOA been initialed and the new staff situated in their positions than the fishing season commenced. In both the Yukon and Kuskokwim River drainages, the summer of 2000 was one of the most dismal seasons on record, and in order to gain respectable escapement numbers, fisheries managers were forced to severely curtail subsistence fisheries harvests and—in a few cases—eliminate them altogether. [111] The problem was one that had become increasingly evident during the past several years, and the difficulties involved in making in-season management decisions were made no easier in light of the fact that federal and state fisheries managers were forced to make cooperative decisions for the first time. Despite the difficulties in implementing the new system, there was a widespread recognition that the difficulties with the fisheries harvest were due almost exclusively to factors other than the new management system. Fisheries managers, to the largest extent possible, used established, ad hoc organizations such as the Kuskokwim River Subsistence Management Working Group and the Yukon River Drainage Fisheries Association; and in the case of the Yukon River, the decisionmaking process was eased considerably because state and federal authorities had signed a management protocol on May 25. [112] Fisheries managers were further aided because the Federal Subsistence Board, early in the season, had delineated a clear-cut system of lead federal officials for each of twelve fisheries regions in the state. [113]

By the end of the summer of 2000, the federal subsistence fisheries program was nearing the end of its first year of operation. (See Tables 9-2 and 9-3.) To evaluate the effectiveness of the program, Senator Murkowski visited Anchorage on August 23 and held a second post-assumption hearing of his Energy and Natural Resources Committee. Interior Department personnel, as part of their testimony, were quick to point out that they had followed through on most if not all of the promises that Babbitt had made during the previous (October 1999) hearing. They also noted that the Department had hired 21 new employees—18 of them Alaskans—to support the department's management effort. Anticipated future staff included 13 DOI employees and 9 Agriculture Department (U.S. Forest Service) employees. Based on completed and anticipated staffing, it appeared that the federal agencies' staffing presence (40 positions) would fall significantly short of the 56 positions that had been planned during the months prior to fisheries assumption. [114]

A second hearing, held in Juneau several months later, focused on the degree of success that state and federal officials had had in their implementation of a dual management system. Both Tom Boyd, head of the federal government's Office of Subsistence Management, and Frank Rue, Commissioner of the state's Department of Fish and Game, noted that officials had "worked mostly in cooperation." The two officials acknowledged, however, that the two systems had substantially different mandates and that the underlying conflict between them occasionally bubbled to the surface. Rue noted a few complaints about federal interference in setting escapement levels—he "felt they were in our business a little too much" in that regard, he noted. The soft-spoken Boyd, in turn, candidly noted that "I would say we've had some rough spots. ... We've walked into a legacy of distrust in rural Alaska." The ADF&G commissioner regretfully noted that several longtime Department staffers were now working for federal agencies, and he darkly warned of increasing trouble as the number of federal managers increased. Boyd, in response, noted that the federal government had never sought responsibility over fisheries management; it had, in fact, consistently advocated returning unified management to the state. Furthermore, he noted, that "it is not [the federal government's] intent to go out there and be overlords of the situation. ... Everyone is cooperating to the extent that it's legally possible." [115]

Meanwhile, state officials continued to pursue both legislative and judicial means to reassert its authority over the management of subsistence resources. Throughout the spring and summer of 2000, the state actively pursued its appeal of Judge Holland's decision in the Katie John case. The Alaska Legislative Council, apparently unwilling to undertake the case with only the state's legal personnel, quietly inked a contract with two Washington D.C.-based lawyers to prepare a legal brief supporting the appeal. (Details of the contract were not released either to the full Legislature or to the public until October.) [116] Perhaps in response to that brief, the Ninth Circuit announced in mid-July 2000 that it would reconsider its April 1995 decision; furthermore, it agreed to have the case presented to a eleven-judge "en banc" panel rather than the three-judge panel that had weighed in on the previous Appeals Court decision. Arguments in the case were presented to the en banc panel in San Francisco on December 20, 2000.

In May 1999, the Ninth Circuit Court of Appeals, in an en banc ruling, largely reaffirmed the decision that the court had made in April 1995. Circuit Judge Alex Kozinski wrote the majority opinion in that case. Alex Kozinski Collection

Five months later, on May 7, 2001, the Ninth Circuit issued its decision. In an 8-3 vote, it again ruled in favor of Katie John. Circuit Court Judge Alex Kozinski issued the majority opinion. The vote guaranteed a continuation of the status quo regarding the federal government's role in managing Alaska's subsistence fisheries. Long before the circuit court issued its ruling, state officials promised—if the state lost its case—that it would appeal the case to the U.S. Supreme Court. But on August 15-16, 2001, Governor Knowles convened a Subsistence Summit in Anchorage. At the end of that meeting the forty-two Alaskans on the governor's task force issued a declaration stating that "the subsistence way of life for Alaska Natives and rural Alaskans must be protected by our state government." Perhaps based on the conclusions of that task force, Knowles decided, on August 27, that the state would not appeal the Katie John case to the U.S. Supreme Court. It was up to the legislature, he noted, to allow Alaskans to vote on a constitutional amendment that would let the State of Alaska, once again, manage subsistence resources in a unified statewide system. [117] Three weeks later, the Alaska Constitutional Legal Defense Conservation Fund fought back; it filed a Superior Court suit in Anchorage in an attempt to force Knowles to appeal the case to the nation's high court. On September 26, Judge John Reese rejected that appeal. Little more than a week later, the Alaska Legislative Council also acted when it asked the U.S. Supreme Court for permission to appeal the Katie John case, but on October 12 that too was rejected. [118]

The only alternative to continued federal management, it appeared, was the passage of a constitutional amendment by the Alaska Legislature. To that end, various task force members formed a drafting committee, headed by Attorney General Bruce Botelho, which met eight times during the next several months. On December 17, the committee concluded its work and recommended broadly-acceptable language for a proposed constitutional amendment. When the 2002 legislative session began a month later, the governor made it clear that the passage of a subsistence amendment should be one of the legislature's top priorities, and in mid-February he released the text of his recommended amendment. Momentum to pass such a bill grew on April 2, when Anchorage voters, by a lopsided 72%-28% margin, approved an advisory measure that demanded a subsistence vote by all Alaskans. But neither legislative body passed such a bill during the regular session. Knowles, in response, demanded that the legislature consider subsistence as part of a special session that would begin immediately after the regular session concluded. [119] But that session, which began on May 17, made no significant moves toward resolving the long-standing problem. By May 19, pro-vote legislators were frankly admitting that there was insufficient support for a constitutional amendment; given that state of affairs, Senate Resources Committee Chair John Torgerson urged that the issue be reconsidered at some later date. A second special session, begun on June 24, did not address subsistence concerns. [120] As a result of the legislature's continuing inaction, the issue remains unresolved. It is yet to be seen if a legally-viable subsistence amendment can pass muster with both the Alaska Legislature and the state's electorate.

alaska_subsistence/chap9d.htm
Last Updated: 14-Mar-2003