Alaska Subsistence: A NPS Management History (Chapter 7)

In December 1989, the Alaska Supreme Court effectively struck down the state's subsistence management system in the McDowell case. Members of the court that year (left to right) included justices Jay A. Rabinowitz, Allen Compton, Warren W. Matthews (chief), Daniel Moore, and Edmund Burke. Alaska Court System

On Friday, December 22, 1989, the Alaska Supreme Court handed down a decision that had major, long-term consequences on how subsistence activities would be managed. In a 4-1 vote, the Court ruled that the legislature's 1986 subsistence law violated the Alaska constitution because its rural preference provisions illegally discriminated against residents who lived in non-rural areas. [1]

The case on which the court ruled was popularly known as McDowell vs. the State of Alaska; it was filed by Sam E. McDowell (an Anchorage businessman, former Board of Game member, and sport-hunting advocate) and three other men. [2] Their suit had originally been filed in 1983 to challenge the second-tier subsistence priority inherent in the state's 1978 subsistence statute. After its initial filing, the complaint was amended several times in order "to expand on the original theory and add challenges to various regulations," and in October 1984, the Superior Court granted some motions and deferred others. The Supreme Court's February 1985 Madison v. Alaska Department of Fish and Game decision forced the case into the judicial background for more than a year, but the Alaska Legislature's passage of a new subsistence statute in May 1986 shed new light on the lawsuit.

Shortly afterward, the plaintiffs again amended their complaint and decided to challenge the new law on constitutional grounds. Their primary argument was that the 1986 law, with its rural-preference provision, ran contrary to Article VIII of the Alaska Constitution, which guaranteed equal access for all Alaska residents to fish and wildlife resources. Based on that premise, McDowell and the other plaintiffs felt that the 1986 act

The case was first heard by Third Judicial District of the Superior Court in Anchorage. After hearing the case, Judge Douglas J. Serdahely in January 1988 ruled in favor of the defendants. But backed by attorney Cheri Jacobus, the plaintiffs appealed the decision to the Alaska Supreme Court. That court heard arguments in the case in April 1989 and considered the case over the next several months. [4] Based on the arguments presented, and the justices' inquiries, those familiar with the issue predicted that the Supreme Court would reverse Serdahely's decision. [5]

In its decision the court, as expected, largely sided with the McDowell and the other appellants. It acknowledged that a purpose of the 1986 act was "to ensure that those Alaskans who need to engage in subsistence hunting and fishing ... are able to do so," but it also noted that "the means used to accomplish this purpose are extremely crude." It therefore advised that "a classification scheme employing individual characteristics would be less invasive of the article VIII open access values and much more apt to accomplish the purpose of the statute than the urban-rural criterion." The court noted that its decision "does not mean that everyone can engage in subsistence hunting or fishing. ... We hold only that the residency criterion used in the 1986 act ... is unconstitutional." [6] The Supreme Court remanded the case back to Superior Court Judge Serdahely "to decide how the present system [should be] dismantled."

Neither federal nor state officials were entirely certain how to respond to the court's verdict. A U.S. Fish and Wildlife Service spokesman, Bruce Batten, noted that his agency had always preferred a unified state management system, and he further noted that "we don't have all the resources we would need" if federal assumption became necessary. But both he and others recognized that a federal assumption of fish and game management on federal lands was looming, and Batten bravely stated that "we're willing and ready to take on that responsibility if it comes our way." Sam McDowell, weighing in on the issue, said that the state should take the federal government to court over its right to manage subsistence resources. But state fish and game officials were left in a quandary; according to ADF&G official Dan Timm, "I guess everything stays in place until we get some Superior Court directions." Speculation arose that the two-tiered system used during the 1985 hunting season might be re-introduced. But no one was sure. John Trent, another ADF&G official, said that "It's gonna take some work. It'll certainly require some time. It will make the Board of Game meeting real interesting in the spring." [7]

Because the Supreme Court decision nullified the legality of rural subsistence hunts, and because no substitute system was available, the ADF&G's short-term reaction was to close the state's presently-open, road-accessible subsistence hunts, including the Fortymile caribou hunts and the Dot Lake moose hunt. Moreover, the popular Nelchina caribou hunt along the Glenn and Denali highways was not able to begin as scheduled on January 1, 1990. But just two weeks after the Court's decision, on January 5, Chief Justice Warren Matthews postponed the effective date of the state Supreme Court's decision until July 1. State officials (as well as subsistence hunters) were relieved by the announcement. Alaska governor Steve Cowper noted that because of Matthews's ruling, "we no longer have to cancel authorized subsistence hunts," and the delay also gave the state precious time to figure out a new subsistence management system. But McDowell and the other court plaintiffs, backed by attorney Wayne Anthony Ross, decried the decision; arguing that the state subsistence-management system remained on questionable ground, Ross attempted to have Matthews's postponement rescinded. Two weeks later, Jacobus filed a brief to that effect with the high court; the justices, however, let the postponement stand. [8]

Alaskans, given five months to act before the deadline that Matthews had set, were left with three options. Some (such as the plaintiffs in the McDowell suit) were convinced that the state should sue the federal government over the legality of Title VIII of ANILCA. Others felt that Senator Ted Stevens and the remainder of the Alaska Congressional delegation should attempt to revise Title VIII by removing its rural preference provisions. Many, however, felt that the most feasible alternative would be to pass a bill in the Alaska legislature that would be both legal under the Alaska constitution and in compliance with Title VIII. (Stevens himself said that "it will be better for Alaskans to resolve this issue themselves rather than get Congress in the act ... the group back [in Congress] is not friendly to Alaska as far as Alaskans using federal lands in Alaska.") As a result, great efforts were expended during the first half of 1990 to craft a revised subsistence bill that would be acceptable to Natives as well as non-Natives and to both rural and urban residents. [9]

During the Second Session of the Sixteenth Alaska Legislature, many proposals for a new, improved subsistence bill were brought forth. Early bills—offering a subsistence priority to low-income people, one based on a permit system—had little chance of becoming law for either legal or political reasons. [10] But a more workable solution emerged after a March 1 hearing; a day later, Governor Steve Cowper submitted a bill (HJR 88) proposing a constitutional amendment that guaranteed subsistence rights to Alaska's rural residents. Cowper's proposal, submitted at the behest of the Alaska Federation of Natives and first aired at a March 10 statewide teleconference, steered a middle course because it promised, to a large degree, to revive the old (pre-McDowell) subsistence law. Protestors soon formed, however, on both sides of Cowper's proposal. On one side were the sport hunters and fishermen, such as McDowell and Bondurant, who felt that the plan discriminated against people in cities. And on the other side were certain Native Alaskans, who felt that the proposal didn't go far enough in guaranteeing a Native preference. Cowper and others recognized the difficulty in attaining consensus on the matter, particularly because his proposal demanded a two-thirds affirmative vote from both the House and Senate before it could be submitted to Alaska's voters in the November 1990 election. [11] As the legislative session wore on, several hearings on the topic were held, and subsistence remained a high-profile issue. [12] But a proposal calling for a constitutional amendment failed in a House vote (the 20-20 vote took place on May 8), and no other comprehensive subsistence proposals were addressed by either state legislative body before the session ended on May 9. Recognizing the high stakes involved, Cowper knew that a special session offered the only possibility of breaking the impasse. [13]

Sam McDowell, an Anchorage sport-hunting advocate and former game board member, was just one of four appellants in McDowell v. State of Alaska. ADN

During the period in which the legislature had been attempting to cobble together a new subsistence law, federal employees who were concerned about subsistence issues had not been idle. Recognizing that the federal government might need to assume subsistence management on July 1, representatives of the National Park Service, U.S. Forest Service, the Fish and Wildlife Service, Bureau of Land Management, and Bureau of Indian affairs formed an ad hoc planning group and began meeting on a periodic basis. On April 13, the U.S. Fish and Wildlife Service—acting as the lead agency administering federal subsistence matters—announced its "Intention to Propose Interim Rules Implementing Title VIII of ANILCA" in the Federal Register. The public was given until May 14 to comment on how the regulations should be drafted. [14] During this same period, four federal officials—John Hiscock of the NPS, Bill Knauer of the F&WS, Ken Thompson of the USFS, and DOI solicitor Keith Goltz—prepared a series of proposed temporary regulations. Their work was completed by June 1; a week later, the regulations appeared in the Federal Register. The new regulations brought on another public comment period (though it was limited to ten days owing to the looming deadline), and between June 8 and June 18 public meetings were held in Anchorage, Fairbanks, Juneau, and Bethel. [15] Because of the publicity that surrounded this process, a wide range of Alaskans—federal and state administrative officials, members of the state legislature, and residents of every other stripe—knew what specific actions the federal government would take if no new subsistence law was in place by July 1.

While federal bureaucrats prepared for a possible assumption of subsistence fish and game management on federal lands, many Alaskans attempted to head off what they perceived to be a federal intrusion into an area best managed by state government. Governor Steve Cowper, who had spearheaded the constitutional-amendment idea during the regular legislative session, let it be known that he had a "secret plan to solve Alaska's subsistence crisis." He called legislators back to Juneau for a special session, to begin on June 25; and on the eve of that session he released the details of his plan (HB 599 and SB 553), which was similar to the proposal he had floated several months earlier. Arliss Sturgulewski (R-Anchorage), a state senator who was running for governor that year, weighed in with her own plan (SB 554 and SJR 87), which also espoused a constitutional amendment; in addition, a package of three bills that omitted any mention of a constitutional change (HB 600, HB 601, and SB 555) was espoused by various House and Senate Republicans. [16]

Soon after the session began, a compromise emerged that combined ideas from Cowper's and Sturgulewski's proposals. That finely-worded bill, SJR 86, omitted any specific reference to a rural preference; instead, it relied on a vaguely-worded reference to "community or area characteristics, geography, customary and traditional use, direct dependence, local residence or the availability of alternative resources" as a basis for preference in times of scarcity. Two days after the plan emerged, on June 28, the Senate passed the bill calling for a constitutional amendment by a 14-6 vote—the bare minimum necessary for passage. A day later, however, the House was able to muster no better than a 20-20 vote on SJR 86 (27 votes being needed for passage in the 40-member chamber), and during the remainder of the special session the most favorable vote—on July 3—was 23-17. On July 8, the 14-day session adjourned with no resolution to the subsistence stalemate. For the time being at least, the federal government was managing Alaska's fish and game on federal lands for subsistence purposes. [17]

Federal officials, being unfamiliar with the day-to-day details of fish and game management and not knowing how long they might be entrusted with the task, were guided in their initial efforts by regulations that had been published just hours before the June 30 deadline that Chief Justice Matthews had set. These regulations, aired at the various public meetings during mid-June, were finalized later that month (as a "final temporary rule") and were published in the June 29 Federal Register. Sprawled out over more than fifty pages of that standardized government document, more than two-thirds of its contents was a compilation of specific game, fish, shellfish and trapping regulations, most of which were copied from similar state regulations. The remainder of the document, however, was an analysis of why these regulations were necessary, how they were formulated, and a general description of how federal agencies intended to manage subsistence resources. The federal government still hoped and expected that its management role would be temporary—the regulations reiterated that "it is preferable to have [subsistence fish and game] management responsibility lie with the State." To that end, government officials decided to make no initial changes to the State of Alaska's customary and traditional use determinations. In addition, the regulations were applicable only until December 31, 1991, unless the state was able to reassume subsistence management prior to that time. [18]

Bill Knauer, a U.S. Fish and Wildlife Service employee, was one of the first federal employees at that agency in the post-McDowell era to work specifically on subsistence issues. USF&WS (OSM)

Key to the assumption process was the limited role that the federal government proposed over fisheries management. This role was reflected in regulations that excluded federal jurisdiction over navigable waters, which were defined as "those waters used or susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water." Federal regulators explained their decision in this way:

Because Alaska's navigable waters contained virtually all of the state's habitat in which fish were typically harvested for subsistence purposes, the practical effect of the regulations language (as noted above) was that the federal government had minimal authority to manage the state's subsistence fisheries. Although the June 29, 1990 issue of the Federal Register spent many pages detailing subsistence fish and shellfish regulations, federal managers made few decisions in the fisheries arena as long as this rule held sway. [20]

A central aspect of administering the new regulations was the formation of a Federal Subsistence Board. "Empowering the key Federal land management officials," the regulations noted, "is believed to be the best mechanism for implementing these temporary regulations." As the regulations noted, the board

A key aspect of the newly-constituted board, from the NPS's point of view, was that the board—in which the NPS had only one vote—had the legal authority to make resource decisions that affected the status of NPS lands. This shared authority, of course, applied to the other land management agencies as well. To some extent, this sharing of responsibility had also been felt prior to July 1990, when subsistence management decisions on federal lands had been entrusted to the state game and fish boards. Even so, the existence of the Federal Subsistence Board meant that individual agencies had to give up a measure of control. To ameliorate that loss of control, as noted later in this section, the board gave individual agencies some degree of control over their own lands by giving them lead-agency authority to respond to suggested changes in subsistence management patterns. Despite that authority, agencies participating in board decisions often had to accept management changes with which they disagreed.

Federal regulators originally proposed that the board have five members, to be composed of and either the regional or state director of important federal agencies. Four of the agencies—the Bureau of Land Management, Fish and Wildlife Service, Forest Service, and National Park Service—comprised Alaska's largest federal land managers. The fifth agency, the Bureau of Indian Affairs, was chosen for two reasons: it oversaw trust responsibilities for Native Alaskans, and because Native allotments which had been selected but not conveyed (and which the BIA consequently exercised some oversight) were considered federal public lands. [22] In these aspects, the board was thus identical to what had been proposed back in May 1986, when a vote of the Alaska legislature had narrowly avoided federal assumption. From all appearances, both federal officials and the general public—via their mid-June responses to the draft rule—were largely comfortable with the board's makeup.

The leadership in the originally-constituted board rested with one of the five agency heads; the chair was selected by the Interior Secretary in consultation with the Agriculture Secretary. The first board chair was Walter O. Stieglitz, who also served as Alaska's Fish and Wildlife Service chief; other charter board members included Boyd Evison (NPS), Niles Cesar (BIA), Edward Spang (BLM), and Michael Barton (USFS). Within a few months, however, Curtis McVee, who was Interior Secretary Lujan's Alaska representative, replaced Stieglitz as board chair, and the board thus increased from five to six members. [23] (See Appendix 1.)

The new Federal Subsistence Board, at first, had virtually no staff upon which it could rely, and only three agencies that comprised the board—NPS, F&WS, and BIA—had personnel that were trained in subsistence issues. One of the first actions following federal assumption, therefore, was a dramatic effort on the part of both the Fish and Wildlife Service (the lead agency administering the federal subsistence program) and other land management agencies to assemble qualified staff. The difficulty of this effort was underscored by the fact that such expertise might be needed for just a short-term period. Because the June 1990 regulations were specific regarding seasons and bag limits, regulations were in place for the various subsistence hunts that were scheduled to take place during the summer and fall of 1990. Staff involvement, however, was necessary to develop the remainder of the federal subsistence program. To assist the F&WS and the other three major land management agencies, Senator Ted Stevens earmarked $11.3 million in Fiscal Year 1991 appropriations "to fund the management of subsistence hunting and fishing on federal lands." The F&WS used its funds to beef up its subsistence staff, and before long, a new bureaucratic entity in the agency had been formed to address subsistence matters. [24] At the NPS, efforts by Associate Regional Director Paul Haertel helped bolster the Anchorage-based subsistence staff from just one person (Lou Waller) in early 1989 to six in late 1991. [25] (See Appendix 3.)

To assist the board in its work, the June 1990 regulations called for the formation of a staff committee that would be comprised of a representative of each of the organizations represented on the board. (See Appendix 6.) That committee, which was largely a continuation of the ad hoc federal planning group that had been meeting on a periodic basis ever since the McDowell decision had been meted out, initially consisted of Tom Boyd (BLM), Norman Howse (USFS), John Borbridge (BIA), Don Voros (F&WS), and Bob Gerhard (NPS). Members, at first, had no idea how long they would be serving in their positions—one member signed on with the understanding that he was on a two-month detail—but before long, members recognized that their work required a long-term commitment. [26]

Federal subsistence officials soon recognized that three primary tasks lay before them, all of which needed substantial public input between the summer of 1990 and the spring of 1991. One task involved the determination of rural versus non-rural areas. A second effort was a revision of specific hunting regulations for the 12-month period beginning July 1, 1991. And a third task involved finalizing other general aspects of the federal subsistence management program through the preparation of an environmental impact statement and the issuance of final regulations. The three tasks, taken together, required a huge amount of human input—by both federal officials and a wide range of interested groups and individuals—in just a short time. To guide the completion of those tasks, a newly-established staff committee began meeting on a weekly basis (and sometimes more often) beginning in the late summer of 1990. Some tasks were more complex and time-consuming than others. The three efforts will be addressed in separate paragraphs below.

As noted in Chapters 5 and 6, the state fish and game boards had dealt with the prickly problem of rural versus non-rural determinations numerous times during the 1980s. In April 1982, and again in June 1986, the boards had confronted the issue head-on, and during meetings that followed each of those dates the issue periodically resurfaced. But federal authorities were by no means tied to any previous decisions made by their state counterparts, and federal and state regulations differed. The June 1990 regulations (using guidance derived from the legislative history for ANILCA) stated that "communities 7,000 or greater in population are presumed to be non-rural" and that "a community or area of less than 2,500 population is deemed rural unless it exhibits characteristics of a non-rural nature or area or is part of an urbanized area." But because "a community between 2,500 and 7,000 bears no presumption as to its rural or non-rural status," the regulations mandated that the board "publish the characteristics it will use in determining rural or non-rural status." [27] It would then make a preliminary determination for all Alaska communities; that decision would be reviewed at a series of public meetings to be held around the state. The board would make final determinations—again, as determined by language in the regulations—by December 31, 1990.

The public process for making rural versus non-rural determinations commenced with an announcement in the September 25, 1990 Federal Register. That announcement kicked off a public comment period on the subject. A day later, based on staff recommendations, the board made its preliminary determinations, and on October 4 the list of affected communities was published in the Federal Register. The board proposed non-rural designations for Anchorage, Kenai-Soldotna, Palmer-Wasilla, Fairbanks, Juneau, Ketchikan, Kodiak, Sitka, Homer, Seward, Valdez and Adak. The rest of the state was proposed for rural status. Board chairman Walter Stieglitz, in a press release, emphasized the preliminary nature of the board's decisions, and he further announced that hearings would be held in each of the communities for which non-rural status had been proposed. The public was given until December 10 to comment on the board's proposed recommendations. [28]

Communities in many of the areas declared to be non-rural attempted to reverse the board's proposed designation, and residents were particularly active in those communities that had between 2,500 and 7,000 population. They pressed their case in speeches at either the board field hearings—59 such meetings were held between October 23 and early December, all but two of which took place in Alaska—or at various state-managed Regional Advisory Council meetings. On December 17, the board met again and decided that the designation of three communities—Kodiak, Saxman (near Ketchikan), and Sitka—should be changed from non-rural to rural. The designation for all other Alaska communities remained as announced on September 26. [29] The board's decisions, as it turned out, largely mirrored the rural/non-rural determinations that the state fish and game boards had made prior to the McDowell decision; the only areas with a changed status were Adak, which switched from rural to non-rural, and both Saxman and the Cantwell-Nenana corridor, which went from non-rural to rural.

Before the board (and the staff that worked with it) completed the process of ascertaining its rural/non-rural determinations, work began on a revision of hunting regulations for the year scheduled to begin on July 1, 1991. (See Tables 7-1 and 7-2, following page.) Because of the huge workload that was immediately thrust on federal officials, the public had a fairly limited period of time in which to make suggestions regarding the following year's subsistence hunting regulations. As noted above, the board held almost sixty meetings throughout the state during the fall of 1990. One purpose of those meetings was to solicit comments about changes in the subsistence hunting regulations that had gone into effect on July 1. Alaskans, in response, made a number of suggested revisions (in either oral or written form) during that process, and the board apparently made several amendments to existing regulations during that period. In mid-December, federal officials opened a 30-day public comment period—until January 15, 1991—for changes to the subsistence hunting regulations. The public responded with 182 proposals. Board staff discarded some proposals because they appeared to be irrelevant to the process at hand; then, during February, staff distributed the remainder to the public for their comments. The comments were forwarded on to the board and its staff, and at a four-day meeting beginning March 4, the board made its initial set of decisions. The regulations approved at the March meeting were published in the April 16, 1991 Federal Register for a 30-day comment period. Then, at a June 4-5 meeting, the board made decisions on another slate of proposals, some of which had been discarded by board staff prior to the March meeting. The new (1991-92) regulations were published in the June 26, 1991 Federal Register. [30]

@ - There were no public meetings in late 1990 or early 1991 specifically related to seasons and bag limits, but between late October and early December 1990, approximately sixty meetings were held throughout Alaska "to take public comment on subsistence uses on Federal public lands in Alaska."

These meetings were to explain, and obtain comments upon, various general aspects of Federal subsistence management; and more specifically to obtain comments on proposed rural/non-rural designations. Many comments were doubtless received regarding seasons and bag limits, even though the Proposed Rule (i.e., proposed regulations) were not distributed until after the meetings had concluded.

* - The April 1991 follow-up meeting, in Anchorage, was held after the FSB meeting and eight days after the Proposed Regulations for 1991-1992 were issued in the Federal Register.

Table 7-2. Proposals Considered by the Federal Subsistence Board, by Region, 1991-1993

NOTE: Numbers associated with the various regions indicate the number of proposals affecting each region. Because the FSB deferred many proposals, the number of proposals acted upon is less than the state total. Special actions and requests for reconsideration are omitted from this table. The regions noted in the table were those devised by the State of Alaska in early 1982.

Source: Final Rule, as published in the May 28, 1992 Federal Register; 1991 records from FSB meeting transcripts, OSM.

* - The number of proposals that the FSB discussed is less than the number proposed to the board because the staff committee discarded many proposals as being irrelevant to the FSB's regulatory process.

@ - The FSB decided upon 79 proposals at its March 1991 meeting and another 36 proposals that June.

The largest job facing the board during its initial months of operation—and perhaps its most visible vehicle for interacting with potential subsistence users—was the compilation of a report that would address a number of general questions pertaining to federal subsistence management. As noted above, the prickly issue of rural versus non-rural determinations had been addressed in late 1990, but many other questions remained. For instance, how adequate was the present, state-managed system of local fish and game committees and regional subsistence advisory councils? How should the term "customary and traditional," when applied to the use of fish and wildlife, be defined? Did existing regulations properly address the environmental, socioeconomic and cultural impacts of subsistence activities? And what other topics pertaining to federal subsistence management needed to be addressed? Federal authorities fully recognized that the temporary subsistence regulations, finalized in June 1990, had (by necessity) been prepared in haste, and they also recognized that those same regulations would only be applicable until December 31, 1991. Federal authorities, of course, still had no idea if the Alaska legislature would be able to pass a bill authorizing the state to regain subsistence management of its fish and game resources on federal lands, and they continued to state that they had no particular interest in direct fish and game management. Even so, they had to prepare for the possibility of long-term management responsibilities. In order to address a broad range of management questions, Federal Subsistence Board staff undertook the preparation of an environmental impact statement that would outline several possible management approaches.

The process began in mid-October 1990, when a Fish and Wildlife Service press release announced that work on the EIS was about to begin. Just days after the issuance of that press release, the first of 57 public meetings were held in communities across Alaska asking for comments about the federal subsistence management system. (These meetings, noted above, also solicited comments about rural/non-rural determinations.) The public meetings, held between late October and early December, were attended by a total of 1,690 people, and the public responded with 206 written comments, 91 comment forms, and 28 toll-free telephone calls. Federal officials were thus provided a broad range of views on how subsistence resources should be managed on the state's public lands. These comments, together with the existing regulations and input from the various land managing agencies, provided board staff the data necessary to compile the draft EIS. [31] The document was assembled over a nine month period by an interdisciplinary team; most of the fourteen authors were Fish and Wildlife Service employees, although a sprinkling of Forest Service, Park Service, and Bureau of Land Management employees also contributed. [32]

One of the major issues that board staff wrestled with during the preparation of the draft EIS was the adequacy of the state's subsistence advisory councils. (See Appendix 2.) As noted in chapters 5 and 6, the Alaska legislature had first passed a bill recommending regional fish and game decisionmaking back in 1971; Governor Egan, however, had vetoed that bill. Eight years later, the Department of Fish and Game had established the first such councils, and they had been placed on a more formal regulatory footing by action of the combined fish and game boards in April 1982. But because of both fiscal constraints and a multitude of other factors, the various councils had a spotty track record.

On July 1, 1990, the assumption of federal management forced officials to reassess the legitimacy of the state-managed councils. Responding to the requirement set forth in Part 100.11(a) of the temporary (June 1990) federal subsistence regulations, the Federal Subsistence Board commissioned a study in order to ascertain how problems associated with the councils might be overcome. Fish and Wildlife Service employees Richard Marshall and Larry Peterson, assigned to write the study, used the hundreds of comments made during the fall 1990 public hearings—many of which addressed this specific topic—as a primary research tool.

Board chair Curtis McVee, asked for his comments, stated that the councils "are functioning with varying degrees of success. Apparently some councils are not regarded as representative of the population within the region they serve. Some councils do not seem to have much influence on management programs and all of the councils suffer from lack of financial support necessary to fulfill their roles." [33] McVee, in a separate communication, also let it be known that the councils, until such time as the report was completed, were in legal limbo. Although several regional councils continued to meet, McVee announced that "no State Regional Council," for the time being, "shall be considered legitimately constituted under the Federal Advisory Committee Act and Section 805 of ANILCA." Interior Department representative Vernon Wiggins expressed similar thoughts. As a "strictly interim measure," he noted, the board continued to rely on recommendations made by councils under the existing state advisory system," but only "until the study was completed and pending a final determination on whether a permanent management program would become necessary." [34]

The authors completed a draft report on the state's advisory council system in early May 1991 and a final report was distributed in September. Because the June 1990 regulations demanded that three topics be examined, the authors provided three conclusions:

The draft Environmental Impact Statement, distributed during the week of October 7-11, 1991, gave four contrasting scenarios on how federal subsistence management might work.

The alternatives in the draft EIS discussed other subsistence-related topics as well. Two of the alternatives, for example, stated that the rural/non-rural determinations made by the board in December 1990 should remain. Another, however, stated that eligibility "would be determined strictly by population number," and only residents in communities less than 7,000 population would be eligible for subsistence activities on federal lands. A final alternative stated that "Anchorage, Fairbanks, Juneau and Ketchikan would be the only non-rural communities." Regarding customary and traditional uses, all four alternatives stated that the State of Alaska's determinations, which the board had adopted en masse on July 1, 1990, "would remain ... unless changed by the board on the recommendation of a local advisory committee [or regional council] or based on information obtained through State or Federal Agency research." All four alternatives called for a continuation of the existing local fish and game advisory committees; language describing Alternative IV, however, cautioned that "Federal advisory committees might be formed if the Board determined that the State committees were not fulfilling the requirements of ANILCA." [36]

When the Board issued the draft EIS, it gave the public two months—until December 9—to submit comments. Hoping to solicit a wide range of public opinion, it outlined a schedule of forty public hearings, which were to be held both throughout Alaska as well as in Washington, D.C. Hearings were to begin on October 28 and would conclude on December 6. When the board issued the draft EIS, chair Curtis McVee professed objectivity in the process. NEPA policy, however, required a preferred alternative. The draft EIS, therefore, noted that the fourth option (as outlined above) was the government's Proposed Action. [37]

Interest in the process was such that the board held a total of forty-two public hearings, and in addition, the Fish and Wildlife Service held sixteen public meetings at National Wildlife Refuge offices. As a result of those meetings, which attracted hundreds of participants, the public submitted 198 letters plus an additional 350-plus oral comments which merited an official response. [38]

Because the hearings schedule extended into late November, and because the public had several additional weeks to submit comments, board personnel were well aware—even before the draft EIS was distributed—that new, permanent regulations would not be in place prior to the December 31, 1991 deadline stated in the temporary subsistence management regulations. The need to extend, for five or six months, the effective date of the temporary regulations was first (and erroneously) made public in early June 1991, but it was not officially addressed until early December. The press release announcing the proposed delay noted that "this action will allow time for completion of an environmental impact statement and programmatic regulations," but it was also hoped that the delay would also allow extra time for Governor Walter Hickel to "work out a cooperative agreement to let the state regain subsistence hunting management." The board noted that it would be taking comment on the time extension at its December 18, 1991 meeting. Comments would be due by December 20. [39]

Soon after the December 9 deadline for public comments to the draft EIS, federal staff proceeded to analyze those comments and quickly began assembling the final EIS. On January 30, 1992, proposed final subsistence regulations were published in the Federal Register, and five days later the board commenced a 45-day public comment period that would continue to March 16. [40] But the two-volume final EIS was not distributed until late February; this left the public fewer than three weeks to comment on the findings contained in the newly-published document. [41]

The recommendations contained in the final EIS largely mirrored those contained in Alternative IV (the "Proposed Action") in the draft document. Like the draft, the final EIS recommended the continuation of a six-member board and the establishment of eight federally-managed subsistence regional advisory councils. Local advisory committees, as in the draft, would be managed by the state, but federally-sponsored committees could be formed if the existing committees failed to fulfill the requirements outlined in Section 805 of ANILCA. The document made numerous other recommendations, most of which had first been suggested in the draft version published four months earlier. [42]

Regulations specified that there would be a thirty-day waiting period between the publication of the final EIS (as noted in the Federal Register) and the all-important Record of Decision. [43] Following the issuance of the EIS, the board had a single public hearing—at the Board's March 9 meeting in Anchorage. The public then had one more week—until March 16—to provide written comments on the EIS's recommendations.

On April 6, soon after the 30-day waiting period had run its course, Interior Secretary Manuel Lujan, Jr., with the concurrence of Forest Service Regional Director Mike Barton, approved the Record of Decision on Alaskan subsistence management. [44] The two men decided "to implement Alternative IV as identified in the Final Environmental Impact Statement ... with modifications." Two modifications were made. First, the officials decided to increase the number of regions—and corresponding regional advisory councils—from eight to ten. Second, they decided to modify the rural determination process by allowing a five-year grace period for any communities transitioning from rural to non-rural status. Except for those modifications, the federal subsistence program was to be implemented as noted in Alternative IV.

To conform to the particulars of that alternative, the board's regulations were modified. Those regulations—which listed various customary and traditional use determinations for game, fish, and shellfish throughout Alaska—were published as a Final Rule in the May 29, 1992 Federal Register. They became effective on July 1, 1992. [45] Two years after the federal government assumed management of Alaska's subsistence resources on the public lands, permanent federal regulations were in place.

During the period in which the draft and final EISs were being written and the Record of Decision produced, the board and supporting staff completed a second round of hearings and deliberations pertaining to subsistence hunting regulations (as they pertained to seasons and bag limits, methods and means). The board, as it had in 1990-91, began its annual regulations cycle by publishing proposed regulations in December. Then, in mid-January 1992, it held six public hearings in locations scattered around the state. By the January 23 deadline, the board had received some 200 proposals to change the regulations, and during the week of April 6-10 the body voted on how to respond to each proposal. The regulations, as modified, were published in the May 28, 1992 Federal Register and became effective on July 1. Unless otherwise acted upon, the regulations were to remain in force until June 30, 1993. [46]

By the time the board had completed its second annual review of subsistence regulations, basic board customs and procedures had begun to emerge in order to expedite the completion of the tasks at hand. Staff, for example, assigned each proposal to the agency which would be most affected by the proposed action, and in many cases, other agencies deferred to the opinions of the representative from the so-called "lead agency". The F&WS representative, perhaps not surprisingly, was generally regarded as being most knowledgeable about wildlife biology questions (and was thus deferred to in this area), and the BIA representative—again not surprisingly—generally weighed in on the side of Native rights. Early board representatives recall that these evolving customs fostered a sense of harmony among the various agency heads. [47]

The federal assumption of subsistence game management, at first glance, removed any obligation for the Interior Department to subsidize ADF&G's Subsistence Division. (As noted in Chapters 5 and 6, Section 805 of ANILCA called for the federal government to reimburse the state government for costs associated with the management of subsistence activities on federal lands.) But immediately after federal assumption, federal officials recognized the obvious: that they could be far more effective managers if they utilized the ADF&G's experience, data, and technical expertise. Both federal agencies and the public started submitting requests to the ADF&G for information and technical assistance. By the end of 1990, the ADF&G and the U.S. Fish and Wildlife Service (the latter acting on behalf of the Federal Subsistence Board) had worked out a one-year agreement that called for the ADF&G to provide three general areas of expertise: 1) technical assistance to and coordination with federal staff, 2) subsistence data collection in rural Alaska communities, and 3) maintenance and updating of ADF&G's Community Profile Database (CPDB). In return for those products and services, F&WS provided more than $230,000 in funding to the Department's Subsistence Division. (This funding was less than one-third of what the federal government had provided in fiscal year 1990 as part of its "ANILCA reimbursement," but was nevertheless a helpful source of funding for the state's beleaguered Subsistence Division.) The federal-state agreement was renewed on an annual basis for the next several years, but the federal government gradually lost interest in the program, and by the mid-1990s funding levels were far lower than in fiscal year 1991. But other funds became available to the state subsistence program from both the F&WS and other federal agencies. Some of these monies were interagency funds that were channeled, during the early 1990s, through Exxon Valdez restoration allotments, but individual agencies—including the NPS—also provided funding to state personnel as part of specific agency projects. [48]

A significant by-product of the federal government's decision to establish federally-sponsored regional advisory councils was the State of Alaska's decision to abandon its own, ten-year-old regional council system. As noted above, the McDowell decision had no immediate impact on the existing regional council system, and for more than two years after that decision various regional councils continued to meet. As in the late 1980s, however, some councils were more active than others; the Southeast and Interior councils, for example, continued to meet on a regular basis and submit annual reports, while the Western and Southwest councils, for all practical purposes, were dormant. By the fall of 1991, the publication of the board's draft EIS (which advocated a federally-sponsored regional advisory council system as its preferred alternative) forced ADF&G personnel to recognize that the new system, if implemented, would largely usurp the role that the state-sponsored councils had long undertaken. And perhaps in response to the EIS's recommendation, cuts were proposed in the Division of Boards' budget that promised to eliminate the regional councils. Members of the various councils, not surprisingly, fought both the proposed cuts and the draft EIS's preferred alternative, and as late as March 1992 members of the Interior Council were laying plans for future meetings. But the issuance of the Record of Decision in April apparently forced ADF&G officials to sever funding to the state-sponsored regional councils. All ceased operating in June 1992, at the end of the state's fiscal year. [49]

As noted above, the April 1992 Record of Decision that followed the issuance of the Final EIS on subsistence management stated that there would be ten federally-sponsored regional advisory councils, one for each region in Alaska. As shown in the Final EIS, the boundaries of these regions would reflect those that had been established by the State of Alaska, except that both the Arctic and Southwest regions "would be divided into two regions respectively to reflect the subsistence use patterns of each region." The Record of Decision, issued shortly afterward, added two additional regions at the behest of Native subsistence user groups. One new region was created by cleaving the old Interior Region into western and eastern regions, and another new region appeared in the western portion of the old Arctic region. These two changes were made "to provide for more participation by rural residents in subsistence management" and "to reflect more closely the differences in social and cultural patterns of the of the affected subsistence users." [50]

Neither the Final EIS nor the Record of Decision, however, gave specific direction on how the various Regional Advisory Councils should be established. The Federal Subsistence Board, entrusted with that responsibility, began that task less than three weeks after the Record of Decision was issued. Hoping that the appointment of regional council members would proceed quickly, a member of the board staff noted on April 21 that "we anticipate the need for Council training and use as early as late summer 1992," and on May 28 the same staffer predicted that the councils "hopefully ... will be operational and functioning by early fall." [51] Such predictions, however, proved to be unduly optimistic.

Board staff had three major tasks to complete before the new regional advisory councils could begin meeting. First, federal charters for each region needed to be approved and filed with the appropriate standing committees in both the Senate and the House of Representatives. [52] Second, qualified staff needed to be hired to assist each of the newly-appointed councils. And third, the subsistence users in each of the state's ten advisory-council regions had to be canvassed; from that number, a full complement of qualified, geographically-diverse members (between seven and thirteen, depending on the region) needed to be selected.

The first task completed was the completion of charters for the ten newly-constituted councils. By early July 1992, charters had been prepared and had been deemed acceptable to the five agencies whose representatives comprised the Federal Subsistence Board; in addition, representatives of the USDI's Office of the Solicitor and the Office of General Council had also approved the proposed charters. Later that month they were forwarded to Washington, and on January 19, 1993, Interior Secretary Manuel Lujan, Jr. signed all ten charters.

As noted in the charters, council members were to meet "at least twice each year." The councils had six functions. They were expected to:

According to the various charters, each regional council would have estimated annual operating costs of $100,000, which included one person-year of staff support. [53]

The process of selecting candidates for the regional councils began in the late spring of 1992. By early June, board staff had assembled a list of key contacts in each region. [54] Beginning in August, various rural newspapers and radio stations began to get the word out. Then, in October, board staff held a series of thirteen meetings across Alaska that was designed, in part, to solicit interest in, and nominations for, the various regional council positions. [55] Potential candidates were given until November 15 to submit applications, and a total of 260 candidates applied for 84 open positions. Board staff members then screened the candidates and evaluated their qualifications. This process was largely completed by the end of the 1992 calendar year, but Interior Secretary Bruce Babbitt did not officially appoint the new council members until August 11, 1993. [56]

The selection process for the various regional coordinator positions took place during the same general period as that of the regional council members. In July 1992, the various local advisory committee chairs and other key contacts were apprised that the board was interested in hiring four regional coordinators that would act as support staff for the various regional councils. A fifth coordinator, for southeastern Alaska, would be chosen by the U.S. Forest Service. The positions were publicized in the rural Alaska media over the next two months, and the various public meetings in October addressed the coordinator positions as well as the regional council member positions. [57] Potential applicants were given until November 1 to apply for the four board-appointed positions, which were to be located in Anchorage, Bethel, Fairbanks, and Kotzebue. The change in administration, and perhaps a re-examination of available funds and applicants, resulted in internal delays, and the selection of the five regional subsistence coordinators was not announced until late May of 1993. (See Appendix 2.) The selected candidates were Carol Jorgenson (Southeast Region), in Juneau; Helga Eakon (Southcentral, Kodiak-Aleutian Islands, and Bristol Bay Regions), in Anchorage; John Andrew (Yukon-Kuskokwim Delta Region), in Bethel; David James (Western Interior and Eastern Interior Regions), in Fairbanks; and Barbara Armstrong (Seward Peninsula, Northwest Arctic, and North Slope Regions), in Kotzebue. Most began work within a month of their appointment. Staff support for each regional council consisted of a social scientist and a biologist as well as a coordinator; staff social scientists included Ron Thuma, Taylor Brelsford, George Sherrod and Helen Armstrong, while staff biologists included Robert Willis, Dave Fisher, Conrad Guenther, and Steve Kovach. [58]

No sooner had the various coordinators been hired than the board took steps to implement the regional advisory council system. On July 27-29, the board held a training session for the new coordinators. [59] Two months later, the first regional advisory councils meetings were held. The first meeting, that of the Southcentral regional council, was held in Anchorage on September 15. Meetings of the other nine councils were held over the next several weeks. The last regional council to convene was the Yukon-Kuskokwim Delta council; it met in Bethel on October 20. (The meetings were largely occupied with introducing the new members to the new regime and the consideration of a myriad of proposals for regulation changes for the 1994-95 regulatory year.) All of the councils promised to meet again during the winter of 1993-94. To ensure that all members were aware of standards and guidelines under which that and all future meetings would be conducted, the Office of Subsistence Management prepared a Regional Advisory Council operations manual, a draft copy of which was completed in November 1993. [60]

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

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

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

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

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

Walter J. (Wally) Hickel served as Alaska's governor during the 1960s, then again from 1990 to 1994. During his second term, he established a Subsistence Advisory Council and advocated a modified version of a rural preference. The state, however, was unable to regain blanket management authority over subsistence resources. ASL/PCA 01-4208

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

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

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

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

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

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

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

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

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.

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.

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.

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,

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.

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,

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.

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.

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.

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.

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.

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.