Alaska Subsistence: A NPS Management History (Chapter 9)

As Chapters 5 and 6 noted, the federal government during the 1980s played a marginal role in the management of the state's game populations for subsistence purposes. Federal officials, to be sure, played a key role during 1981 and early 1982 in order to ensure that the State of Alaska's subsistence management program followed the guidelines that had been outlined in ANILCA and the subsistence management regulations. Between May 1982 and the end of the decade, federal officials were called upon, in the period following various court decisions, to clarify ANILCA's specific intent to state officials. Except for those periods, NPS officials played some role in interpreting game management regulations on NPS-administered lands, and officials representing other federal land management agencies also played a minor role on lands managed by those agencies.

But the federal government in general, and the NPS in particular, played almost no role during the 1980s in the management of fish populations for subsistence purposes. As had been true since the 1958 Statehood Act, Alaska's navigable waters were managed by the state. And of specific interest to the NPS, both agency officials and park-area subsistence users appeared to be far more interested in the management of game than fish populations. Perhaps as a result, there are few known instances in which NPS officials brought specific fish management issues before the state Fisheries Board. The various subsistence resource commissions, moreover, were excluded from any advisory role related to fisheries; when the Gates of the Arctic SRC made a fisheries recommendation to the Interior Secretary in May 1987, an Interior Department official responded that "the Commission's legislative authority is for hunting and that fisheries are not within that area of authority." [1]

The Alaska Supreme Court's ruling in the McDowell case in December 1989 (see Chapter 7) portended a major change in the federal government's role in fish management. In striking down the state's 1986 subsistence law, the court made no distinction between subsistence hunting and subsistence fishing. In the wake of McDowell, moreover, federal officials recognized that they might well be assuming the management of both fish and game resources on federal lands. Given six months in order to prepare for an assumption of subsistence management, Interior and Agriculture Department officials were able to cobble together a ten-week, two-stage public process in which the nature of federal management would be described and discussed. By June 1, officials had completed work on a "proposed temporary rule," and by the end of June a "final temporary rule" had been compiled and published in the Federal Register. The final rule laid out the regulations under which the federal government managed subsistence resources on Alaska's public lands for the next two years.

One major decision that emerged from the spring 1990 public process was that the federal government proposed a narrow, limited role over fisheries management. Both the June 8 and the June 29 regulations specifically 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 rivers contained virtually all of the habitat in which fish were typically harvested for subsistence purposes, the practical effect of deciding on the above language was that the federal government continued to have 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, these pages were to a large extent ignored; because fishing activity was almost entirely limited to the navigable waterways, federal managers made few decisions in the fisheries arena for the next several years. [2]

As noted in Chapter 7, the federal government undertook a major assessment of its subsistence responsibilities during the 1990-1992 period when it compiled a draft and final environmental impact statement on the subject. The process that culminated in the final EIS included a 45-day public comment period and numerous public meetings. After the EIS was completed, federal officials issued a Record of Decision on April 6, 1992. On May 29, the federal government published final regulations on how subsistence activities would be managed on public lands.

The final regulations made no changes in the federal government's stance toward the management of fisheries for subsistence purposes. As noted in the May 29 Federal Register,

Well before the government published its 1992 final rule on Alaska subsistence management, both federal officials and a broad spectrum of other interested individuals recognized that actions were taking place in the federal courts that had the potential to significantly broaden the federal government's role in the management of the state's subsistence fisheries. Court actions had begun during the mid-1980s, and by the time the final rule was published, a decisive case was ready to be ruled upon by a district court judge. [4]

The case, Katie John vs. the United States of America (known informally as the "Katie John case,"), had its origin in a longstanding quarrel over fishing rights. Batzulnetas, a longtime Ahtna village, was located along the banks of the swift, silty Copper River at the confluence of Tanada Creek, a clearwater stream. The site was thus "the perfect location for a fish camp," and for hundreds of years, area Natives harvested the sockeye salmon that ascended the drainage each summer. Batzulnetas remained an active seasonal village until the middle of the twentieth century; its last chief was Sanford Charlie, who died during the 1940s. After World War II, the village's residents resettled at Mentasta Lake and other year-round settlements accessible to the newly-developed highway system. But Batzulnetas, located not far south of Nabesna Road, continued to be widely used as a seasonal fish camp through the early 1960s.

In 1964, however, the Ahtnas' seasonal lifestyle was dealt a severe blow when the Alaska Board of Fisheries and Game shut down subsistence fishing (that is, fishing with nets and fishwheels) at Batzulnetas and other upriver fish camps. Fisheries managers did so because the Copper River, by this time, was supporting a wide array of commercial, sport, and personal-use fisheries, and state biologists posited (correctly or not) that if the Ahtnas caught too many fish in certain upriver "terminal streams," it would have disastrous effects, both on the various downstream users and on the viability of certain salmon stocks. After that decision, the village site was used less often, and before long, Batzulnetas was effectively abandoned. [5] And not long after that, the village and other area lands came under scrutiny by conservationists and Interior Department officials. In December 1978, President Carter included the former village site in Wrangell-St. Elias National Monument, to be administered by the National Park Service, and two years later, the old village was included as part of the 8.3 million acre Wrangell-St. Elias National Park. [6]

Although local Natives did not legally protest the state's 1964 fishing closure, many remained interested in the old village site. During the early 1970s a newly-established regional Native corporation, Ahtna, Inc., filed a 1,600-acre claim to the lands surrounding the village. Three local Native residents—Katie John, Doris Charles, and Gene B. Henry—filed claims to smaller parcels in and around old Batzulnetas. [7] None made an immediate attempt to resettle in the area, but by the early 1980s, Katie John and Doris Charles—two Ahtna elders residing in Mentasta Lake—"began talking about going back" to the former village site. The women may then have spoken to NPS officials about the situation. [8] In 1984, John and Charles traveled to Fairbanks and presented their case to the Alaska Board of Fisheries. The Board, however, voted 5 to 2 against their proposal; it suggested instead that they fish at various downstream sites—Slana, Chistochina, or Chitina—where subsistence harvesting was allowed. [9]

The elders, however, persisted. (As John later noted, "We're Indian people and I don't like park rangers or game wardens coming in here telling us what to do like they own everything. That makes me mad. ... I don't want to be on somebody else's land. I like to do my fishing on my own land right there.") Hoping to gain fishing rights for herself, and for her grandchildren as well, she began talks with the Boulder, Colorado-based Native American Rights Fund (NARF), which was opening an office in Anchorage. Attorneys Robert T. Anderson and Lawrence Aschenbrenner, representing NARF, agreed in 1985 to file a lawsuit (Katie John vs. State of Alaska) on John and Charles's behalf. That suit, filed against the State of Alaska in U.S. District Court, requested that the residents of Dot Lake and Mentasta (i.e., where former Batzulnetas residents were now living) had the right to fish at the old village site. The fish board, in response to the suit, relented in 1987 and allowed locals, after obtaining a permit, to harvest a maximum of 1,000 sockeye salmon. The following year, the board further relaxed its rules and eliminated the salmon quota. But the women pressed on, still feeling that their rights were being curtailed. John and Charles, who by now were joined by the Mentasta village council, launched another District Court suit to allow continuous fishing and without the need for a permit. The plaintiffs were victorious in court, and by that fall they had won the right to a subsistence fishery that was continuously open from June 23 through October 1. But before the order could take effect, the December 1989 McDowell decision struck down the rural preference that Alaska subsistence users had previously enjoyed. The net result of the year's two court decisions was the creation of a subsistence fishery that included Batzulnetas in which all Alaskans could take part, regardless of their rural or urban residency. [10]

By July 1990, federal assumption of subsistence hunting was an accomplished fact, at least for the time being. Rural residents, as a result, once again had a statutory advantage in the harvest of game animals. But because fish populations in the state's navigable waters were still managed by state authorities, urban populations still had the same opportunities to harvest fish for subsistence purposes as their rural counterparts. Mentasta area residents felt that that system was unfair, so in September 1990, John and others petitioned the newly-established Federal Subsistence Board for reconsideration of the temporary regulations that applied to subsistence fishing at Batzulnetas. The Board, however, denied their request, based in large part on the fact that navigable waters did not fall within the definition of "public lands." [11]

Then, in early December 1990, the plaintiffs sought a judicial remedy. Three parties—Katie John, Doris Charles, and the Mentasta Village Council—challenged the federal government's recent decision that placed Alaska's navigable waters under state control. (This decision, as noted above, had been announced in the June 29, 1990 Federal Register.) The plaintiffs, backed by NARF, filed Katie John vs. United States of America in hopes of broadening the definition of "public lands" as noted in Section 102 of ANILCA to include navigable waters; and on a more pragmatic note, the plaintiffs also asked for a federal subsistence fishery in the Batzulnetas area. Named as plaintiffs in the suit were the federal government along with the Interior and Agriculture Department secretaries. [12]

The lawsuit was soon placed before U.S. District Court Judge H. Russel Holland. Fewer than sixty days after it was filed, federal attorneys analyzed the case and concluded that an additional defendant needed to be the State of Alaska, which managed the state's subsistence fisheries. [13] Soon afterward, state lawyers agreed to join the case; on the plaintiff's side, the Alaska Federation of Natives signed on in a supporting role. (After this point, state lawyers were the primary defendants, while federal solicitors took an increasingly neutral position.) The case was argued before Judge Holland in December 1991, but no decision was immediately forthcoming. Over the next two years the case ballooned in importance as a number of similar, ancillary suits—regarding subsistence fisheries management in Copper Center, Quinhagak, Stevens Village, and elsewhere—were consolidated into the Katie John case. [14] By 1993 the case had been consolidated with State of Alaska vs. Babbitt, in which Holland was also the deciding judge. [15]

A new wrinkle was injected into the fray in July 1993 when the Native American Rights Fund submitted a petition to the Secretaries of Agriculture and the Interior. That petition requested that the two secretaries include navigable waters within the definition of "public lands" as used in implementing Title VIII, and they were intended to validate the regulations pertaining to fish and shellfish that the federal government, on June 1, 1993, had issued for the 1993-1994 season. The secretaries made no immediate response to this petition; instead, they hoped that Judge Holland's court decision would clear up the murky waters surrounding this issue. [16]

In the fall of 1993, Judge Holland made the first of a series of preliminary findings in the Katie John case. In mid-November, according to a contemporary news report, he was "seriously considering arguments by state lawyers that federal subsistence management in the state was never intended when Congress passed [ANILCA]." More specifically, Holland was "tentatively of the opinion" that ANILCA provided little direction regarding whether the federal government had the power to take any subsistence regulation away from the state. State lawyers were "tentatively very happy" with the finding; they envisioned, at the very least, that subsistence fisheries rulings would continue to be enforced by ADF&G, and some people felt that Holland's remarks had presaged the disbanding of the federal government's entire, three-year-old subsistence management program. [17] But a second preliminary ruling, made two months later, was less favorable to the state's interests. Holland tentatively concluded that public lands as defined in ANILCA included both land and water. "Much of the best fishing is in the large navigable waterways where one has access to the most fish," he wrote. "By their regulations which exclude navigable waters from the jurisdiction of the Federal Subsistence Board, the Secretary abandoned to [the] state control of the largest and most productive waters used by rural Alaskans who have a subsistence lifestyle." The ruling, if finalized, promised to impose federal subsistence law on all of the state's navigable waters and make only rural Alaskans eligible for subsistence fishing rights under the Federal regulations. [18]

Given those preliminary rulings, Holland gave both sides in the case one last opportunity to present arguments. By this time the federal government, though a nominal defendant in the case, had largely stayed away from the fray. But when lawyers met on March 18, Justice Department lawyers—prodded by a their superiors in the Clinton administration—argued that federal law should apply on at least some of the state's navigable waters: specifically, on waters within national parks, wildlife refuges, and other designated conservation units. [19]

In his final ruling, however, Holland rejected the federal government's middle-of-the-road offerings and ruled strongly in favor of Alaska's Native groups. In a 42-page ruling issued on March 30 in Anchorage, Holland concluded (according to a local newspaper account) that "the needs of rural Alaskans aren't being met by current policies and that the federal government has the legal power and obligation to take over management of subsistence fisheries on all navigable waters." Using language similar to that initially used in his January 1994 preliminary ruling, he wrote that

In his decision, Holland declined to use the "reserved water rights" doctrine as a means of determining the geographic scope of Title VIII. (This latter doctrine would have provided an additional basis for federal jurisdiction over a navigable waterways in so-called "federal enclaves.") He did, however, invoke a more broadly-defined "navigational servitude" doctrine, which meant that a federal preference should apply to all navigable waters, including most rivers, lakes, and coastal waters inside the state's three-mile jurisdiction. (He noted that "even if navigational servitude is viewed as a power to regulate rather than as a property interest, Congress exercised that power to protect subsistence uses by rural Alaskans.") [21]

Native groups, not surprisingly, were elated by the decision. Hickel administration officials, by contrast, pronounced the judge's conclusion "incorrect." They vowed to appeal the decision to the Ninth District Appeals Court; as a stopgap measure, they intended to ask for a stay in the ruling until after the appeal had been decided. [22]

Soon after he made his decision, Holland agreed to the requested stay, and the Ninth Circuit Court of Appeals agreed to hear the case. [23] Meanwhile, federal bureaucrats acted to continue the validity of the fish and shellfish regulations. (Those regulations, as noted above, had been issued on June 1, 1993; they were valid for the 1993-1994 season, but they were set to expire on June 30, 1994.) Worried that "a lapse in regulatory control after July 1 could seriously affect the continued viability of fish and shellfish populations [and] adversely impact future subsistence populations for rural Alaskans," the Office of Subsistence Management issued an interim rule on June 27, 1994 that "effectively extends the existing regulations until December 31, 1995, ... or until the court [of appeals] directs the preparation of regulations implementing its order." The current fish and shellfish regulations, therefore, remained on hold pending the Court of Appeals' decision. [24]

That fall, the appeals court placed the state's appeal of Judge Holland's on a "fast track," and on February 8, 1995, three appeals-court judges heard oral arguments on the case in Seattle. By this time, state attorneys—who were backed in their effort by their counterparts in six other western states—had conceded that some of their previous opinions could not withstand the appeals process. State attorneys, therefore, argued that the subsistence priority granted by the federal government applied only to navigable waters on federal land, while attorneys representing Native groups, citing ANILCA language, argued that all of the state's navigable waters should be included under the subsistence preference. [25]

In August 1995, the Alaska Supreme Court strongly upheld states' rights in the Totemoff case. Justices on the court that year included (left to right) Dana Fabe, Jay A. Rabinowitz, Robert L. Eastaugh, Allen T. Compton (chief), and Warren W. Matthews. Alaska Court System

On Thursday, April 20, Senior Circuit Judge Eugene A. Wright of the Ninth U.S. Court of Appeals issued the long-anticipated ruling in the Katie John case. The 2-1 ruling, expressed in a nine-page opinion, supported some of Judge Holland's conclusions but rejected others. In a major victory for Native groups, the Ninth Circuit stated that Congress clearly intended the subsistence preference to apply to fisheries on navigable waters; federal intervention, the court noted, was needed because state subsistence policies had failed to protect villagers. As Judge Wright noted,

In making that decision, the Circuit Court reversed two key decisions that the District Court had made a year earlier, namely about the reserved water rights doctrine and the navigational servitude concept. Specifically, the appeals court decision noted that "the definition of public lands includes those navigable waters in which the United States has an interest by virtue of the reserved water rights doctrine..." These waters, at a minimum, were those that ran through national parks, preserves, forests, and wildlife refuges, but they might include other federal lands as well. But the appeals court rejected the notion that the federal government had broader jurisdiction, because it noted that "the navigational servitude is not 'public land' within the meaning of ANILCA because the United States does not hold title to it." The court, in fact, admitted that "ANILCA's language and legislative history do not give us the clear direction necessary to find that Congress spoke to the precise question of which navigable waters are public lands," so it concluded by imploring, "let us hope that the federal agencies will determine promptly which navigable waters are public lands subject to federal subsistence management." [27] Given that task, Interior Department agency heads met just a day after the ruling to determine which waterways might be included. State lawyers, disappointed with the ruling, responded by asking for a stay of Wright's ruling. In addition, they promised that they would appeal the case yet again, to the U.S. Supreme Court if necessary. [28]

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

Tony Knowles, the Governor of Alaska since 1994, has consistently supported the idea that the state should manage all of Alaska's fish and game resources; similarly, he has been a consistent supporter of having the Alaska legislature adopt a bill giving Alaska's voters the opportunity to vote on a subsistence-related amendment to Alaska's constitution. Office of Gov. Knowles

Fran Ulmer has served as Alaska's lieutenant governor since 1994. In 1995, she championed a "rural plus" proposal for bringing the state into compliance with the federal subsistence statutes; in addition, she has taken an active role in several task forces related to the subsistence issue. ADN

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On October 1, 1999, federal subsistence officials released a series of press releases that announced the obvious: the commencement of federal subsistence management of fisheries on the navigable waterways in, or adjacent to, Alaska's federal conservation units, and the transfer of an additional $10 million to the Interior and Agriculture departments (agreed to by Stevens and Babbitt as part of the October 1998 moratorium) to fund a federal subsistence management program. Officials were quick to state that they were undertaking such an action with considerable reluctance. They announced that regulations under the new regime would largely resemble those that were already in place; that many of the state's most popular commercial and sport fisheries would be largely unaffected by the change; and that to the largest extent possible, they would rely on state personnel and state-generated data in order to effectively fulfill their management mandate. Statements issued by federal as well as state fisheries officials made it plain that a single, state-managed fisheries management system was preferable to the newly-established dual management system. But the appeals court decision in the Katie John case, combined with the legislature's failure to forward a constitutional amendment to Alaska's voters, left federal officials with no other alternative. [89]

Given the terms of the October 1998 moratorium, and the strong subsequent statements made by both Senator Stevens and Secretary Babbitt, it surprised virtually no one that the legislature's failure to act in 1999 was followed by the federal assumption of fisheries management. Given that climate throughout the year, federal officials effectively had a year to prepare for fisheries management. But inasmuch as there had been three previous moratoria, two of which had been worked out at virtually the last minute, the federal government by October 1999 was fairly well versed in the politics of brinkmanship; more important, it (by necessity) had a strong track record in planning for a possible fisheries assumption.

As noted above, Senator Stevens and Secretary Babbitt had cobbled together the first fisheries moratorium in March 1996. Even before that time, officials on the Federal Subsistence Board's staff committee had informally begun to plan for the day—which was unspecified at that time—when the federal government might begin managing the state's subsistence fisheries. But federal officials made few concrete plans during this period. In September 1997, when the second moratorium was worked out on the fiscal year's last day, the extent of the federal government's preparedness was the completion of a draft question-and-answer sheet; beyond that, federal officials were hopeful that a Proposed Rule on subsistence fisheries would be readied "shortly after October 1." It was similarly felt that a Final Rule would be completed "likely during the Spring of 1998" and thus in time for the 1998 fisheries season. [90]

Federal officials, still hoping for a legislative resolution, made no specific preparations for a fisheries assumption during the first half of 1998 except for the extensive public process (noted above) related to the Proposed Rule that had been issued in December 1997. Governor Knowles focused his efforts that year on a special session, and both he and federal officials were hopeful that that session would break the subsistence impasse. But the special session adjourned on July 21 without forwarding a proposed constitutional amendment to Alaska's voters. In response to the legislature's inaction, Secretary Babbitt issued a press release announcing that he and Agriculture Secretary Dan Glickman fully intended to assume management over the state's federally-managed subsistence fisheries when the current moratorium expired on December 1. And to prepare for that eventuality, the two secretaries had written to both the Office of Management and Budget and to the House and Senate Appropriations Committees requesting $9.5 million to implement the court order in the Katie John case. [91] Regarding specific planning actions, the Secretary noted that:

The National Park Service, along with the other agencies represented on the Federal Subsistence Board, was already well underway in its planning efforts by this time; they had been goaded into action in April 1998 by the Secretaries' budget request. At that time, federal authorities had concluded that the NPS would receive $1.85 million out of the projected $9.5 million fiscal year 1999 budget allotted to subsistence fisheries management, [93] and agencies officials had already compiled a fairly specific budget outlining how its allotment would be spent. The agency, in its attempt to formulate a decentralized fisheries management system, proposed four park clusters; within each cluster, it proposed a budget including labor needs and ancillary expenses. [94]

Because federal officials had commenced a stepped-up effort in July 1998, they were better prepared than ever for a possible fisheries assumption when Senator Stevens and Secretary Babbitt worked out a third fisheries moratorium that October. Their agreement, moreover, paved the way for the issuance of final subsistence fisheries regulations; as noted above, they were issued in early January 1999, almost nine months before the moratorium expired. Given the tone of both Stevens's and Babbitt's verbiage in the months that followed their October 1998 pact, federal officials had a greater-than-ever certainty that a fisheries assumption would indeed take place if the state legislature failed to act. As a practical matter, therefore, officials had almost a year to map out the details relating to a federal subsistence fisheries program.

Federal officials, in fact, made the most of the months that remained before October 1. Their first task was writing an overview of how the federal subsistence fisheries program would be organized and implemented. On March 26, the Federal Subsistence Board's staff committee sketched out a brief Fisheries Implementation Work Plan. That plan, released in tabular form, delineated fourteen specific issues; [95] within each issue, it outlined a series of steps within each issue that had to be addressed by specific deadline dates. By April 21, the work plan had evolved into the Federal Subsistence Fisheries Implementation Plan, which called for the creation of a series of subcommittees or working groups related to each of fourteen issues and the publication of a series of issue papers. [96]

The Staff Committee, as promised, set to work on completing issue papers related to all fourteen issues, and by June 14 brief "issue papers"—in reality nothing more than a list of goals, tasks and assignments—had been completed on all fourteen topics. [97] Two of these topics, however, demanded a more detailed treatment: 1) organizational structure, staffing, and budget, and 2) information needs (data management). In order to work on these topics, the Federal Subsistence Board began by establishing a six-person subcommittee on information needs and information, which was called the Organizational Blueprint Sub-Committee. Patty Rost, Gates of the Arctic's Resource Management Specialist, was its NPS representative. The group immediately went to work. By July 9, each of the federal government's four major land management agencies had submitted reports detailing information issues and concerns; the subcommittee, in turn, used that information to compile a document called Federal Subsistence Fisheries Management: Operational Strategy for Information Management, which was presented to the Federal Subsistence Board on August 2. [98]

The report introduced several concepts that have been followed by federal fisheries managers ever since. One major decision that the subcommittee made was to organize Alaska, for the purpose of subsistence fisheries information gathering, into six regions. [99] It was widely recognized that the ten-region structure that the Federal Subsistence Board had established for wildlife management in April 1992 could not logically be applied to the state's fisheries; and the subcommittee likewise agreed that federal fisheries managers—for the purposes of information gathering—did not need to use the same thirteen-region system that the Alaska Department of Fish and Game had long used. The six recommended regions, it should be noted, would be for information gathering only. Inasmuch as the January 1999 Final Rule delineated the subsistence fisheries according to state fisheries areas, the federal government decided to continue to use thirteen state-defined fisheries areas for regulatory purposes. For federal advisory purposes, however, the existing ten-region system held sway. The August 1999 report made no attempt to recommend a separate regional advisory structure for fisheries management. Fisheries management proposals, therefore, would continue to be discussed and evaluated by the same ten regional advisory councils that had been in existence since the fall of 1993.

Beyond those geographical parameters, the report detailed the process by which information input and management decisions would interplay before, during, and after each fisheries season. In addition, it identified three classes of information needs—subsistence harvest studies, stock status and trends studies, and traditional environmental knowledge (TEK) studies [100]and it outlined a process by which federal officials would generate and evaluate fisheries research projects within these three classifications. The report, which received a broad approval from federal board members, served as the basis for sequential efforts.

Table 9-1. Proposed Staff and Budget for Federal Subsistence Fishers Management, Summer 1999

By the time the federal board had acted on the so-called "Blueprint Report," less than two months remained before the October 1 deadline. As a result, there was little time remaining to complete the crucial report on organizational structure, staffing, and budget. A four-person interagency team from the staff committee immediately set to work immediately, and just two weeks later it emerged with an initial draft. A second draft of the report was presented on August 30, and a third draft was completed on September 9. The publication of each report was followed by a flurry of activity; agencies were usually given just three or four days to critique each document. [101] On September 14, the Federal Subsistence Board met to evaluate the report. It had to make a major decision that day; should it adopt individual agency resource monitoring (Alternative 1), or should it adopt unified resource monitoring (Alternative 2)? The report was evenhanded in its comparison of the two alternatives, but in a key statement, it noted that "On balance, the subcommittee is convinced that the greater effectiveness and efficiency of the unified resource monitoring program are compelling." (This was consistent with recommendations made in the Organizational Blueprint report completed in early August.) Given that rationale, the Board at its September 14 meeting "agreed in principle to the proposed organizational structure and program strategy with a commitment of funding and staffing to support it." [102]

The proposed program was divided into two distinct segments: program administration and resource monitoring. In the program administration arena, the various agencies envisioned that during the first year following federal fisheries assumption (FY 2000), 30 new, full-time employees and a $5.3 million budget would be needed; but during full funding years (FY 2001 and thereafter), 56 employees and a $7.5 million budget would be necessary. The remainder of the $11 million that was being allotted to subsistence fisheries management—about $5.7 million—would be directed toward resource monitoring efforts; this amount would increase to $11.4 million in FY 2001 and $16.0 million in FY 2005. Staff and budgetary requirements as detailed by the various agencies is noted in Table 9-1 above.

Most federal agencies, not knowing for sure whether they would be managing the subsistence fisheries, held off on hiring new staff until after October 1. A few short-term hires, however, were made in anticipation of the upcoming assumption. In late August, the National Park Service hired Dave Nelson, a fisheries biologist who had logged 28 years with the Alaska Department of Fish and Game. At the same time, Mary McBurney began working for the NPS; she had previously served with the Western Alaska Fisheries Development Association (in Nome) and with Cordova District Fisherman's United. [103]

With the completion of the Organizational Structure and Program Strategy report on September 15, two weeks before the October 1 deadline, federal subsistence officials were in an excellent position to begin managing the subsistence fisheries. Having a completed report also gave a clear signal to Alaska's legislators, who were getting ready to convene a special session on the subsistence issue, just what sort of management system could be expected if state lawmakers failed to forward a subsistence-related constitutional amendment to Alaska's voters prior to the deadline. Having completed the most critical aspects of their planning efforts, federal managers made further preparations during the last two weeks of September. All the while, they were well aware that action by the Alaska legislature might well make virtually all of their planning efforts irrelevant. But the legislature, as noted above, failed to pass the required constitutional amendment, and beginning on October 1, federal agencies began managing the subsistence fisheries on almost 60 percent of Alaska's lands.

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.

¹ Benjamin Nageak to Steve Cowper, May 6, 1987; Susan Reece to Nageak, May 18, 1988; both in GAAR SRC files. Reece gave a negative response because Section 808(a) of ANILCA asked the various SRCs "to devise and recommend ... a program for subsistence hunting within the park or park monument."

² Federal Register, June 8, 1990, 23523; June 29, 1990, 27115. Bob Gerhard, who has worked on federal subsistence program issues for many years, recalls just a sprinkling of fishing issues: a statewide proposal to allow hook-and-line fishing as a legitimate subsistence harvesting tool, plus scattered regional issues. Bob Gerhard interview, March 22, 2001; regarding a regional issue, see Federal Register 58 (June 1, 1993), 31175-76.

⁴ See, for example, GAAR SRC minutes, May 7-8, 1991, 4, and CAKR SRC minutes, June 11, 1992, 3.

⁶ G. Frank Williss, "Do Things Right the First Time," 218, 239; NPS, The National Parks: Index 1999-2001, 20.

⁷ NPS Ownership Maps, AKSO Lands Division. The Bureau of Land Management has conveyed all three parcels—which are 60, 160, and 80 acres in extent, respectively—to the claimants.

⁸ Both women were senior citizens; John was born in October 1915, while Charles was born about 1908. The Native American Rights Fund's website www.narf.org/pubs/justice/1999spring/spring1999.htm stated that the two women "petioned officials" of the newly-established NPS unit, but the "officials still refused to allow John and others to resume fishing at their camp." No known park administrative records, however, indicate that NPS personnel ever spoke with John or "refused to allow" them to carry on subsistence fishing activities. Geoff Bleakley to author, email, February 22, 2001.

¹⁰ Ibid., A7; Joan M. Nockels, "Redefining Federal Public Lands in Alaska," Environmental Law 26 (Summer 1996), 696-97; Anchorage Daily News, February 11, 1986, C1; January 15, 1994, D2; Geoff Bleakley email, February 22, 2001; Westlaw citation 1994 WL 487830 (D.Alaska), 7. John vs. State of Alaska, also known as "Katie John I," was Case No. A85-0698 Civil. A detailed chronology of the Batzulnetas fishery is provided in Bob Gerhard and Dave Nelson's A Summary of the Batzulnetas Subsistence Fishery, revised draft (NPS, May 2000), 5-9.

¹² Anchorage Daily News, December 8, 1990, D2. The case number was A90-0484-CV (HRH).

¹⁴ Anchorage Times, December 11, 1991, A1, A8; Anchorage Daily News, March 3, 1992, B3; Anchorage Daily News, November 30, 1993, D1. The case number was A92-0264-CV (HRH).

¹⁵ Dean Dunsmore, in a May 11, 2001 interview, noted that on May 15, 1992, Alaska vs. Babbitt (then known as Alaska vs. Lujan) was consolidated with Katie John vs. USA.

²³ Regional NPS Director John Morehead was glad to hear of Judge Holland's stay; in an April 23, 2001 interview, he admitted that he was "terrified" by the District Court decision inasmuch as the agency, at the time, had neither staff nor experience in subsistence fisheries management.

²⁵ Anchorage Daily News, February 9, 1995, C3. The three judges that heard the case were Eugene A. Wright, Cynthia Holcomb Hall, and Charles Wiggins. Joanne M. Grace, an Assistant Attorney General, presented the State of Alaska's case, while defending attorneys included Elizabeth Ann Peterson of the U.S. Department of Justice and Robert T. Anderson of the Native American Rights Fund.

²⁶ State of Alaska v. Bruce Babbitt, et al. (Case No. 94-35480) and Katie John, et al. v. United States of America, et al. (Case No. 94-35481), as noted in Federal Reporter , 3rd Series, v. 54 (1995), p. 552. Judge Hall was the lone dissenter.

²⁸ Anchorage Daily News, April 21, 1995, A1, A11. By August 1995, agency heads had decided to hold off making any decisions on applicable waterways until all of the various Katie John appeals had been exhausted. Anchorage Daily News, August 9, 1995, A10.

²⁹ Anchorage Daily News, January 24, 1995, A1, A8; January 26, 1995, A1, A10; February 8, 1995, A1, A10. Knowles noted that "This whole suit [Alaska vs. Babbitt] was a rabbit trail to begin with."

³⁰ There is some confusion regarding the formal name related to the Katie John case. As Joan Nockels noted in her article "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 after the state dropped its suit. She noted that the state, in January 1995, "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 Katie John dispute. For the purpose of staying consistent with the Alaskan understanding of this dispute, this 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.

³¹ Anchorage Daily News, August 9, 1995, A1, A10; Anchorage Daily News, December 24, 1995, B1.

³² As noted in Chapter 7, the legislature had attempted to solve the problem in both 1990 and 1992—special sessions were held in each of those years to address the problem—but neither session produced a bill that allowed the state to regain management control over subsistence resources. In 1994, after a legislative session in which little interest was shown in a subsistence bill, Alaska Attorney General Bruce Botelho had suggested another special session dealing with subsistence. That session, however, never materialized. Anchorage Daily News, July 24, 1994, D3.

³³ Anchorage Daily News, November 4, 1995, A1. Several sources, including the RuralCAP website (www. ruralcap.subcurrent.htm), update for November 1998 and the October 14, 1998 issue of the Anchorage Daily News (p. A1), have suggested that the Alaska congressional delegation inserted delaying language in a Fiscal Year 1996 appropriations bill. But no such action took place. Bill Knauer to the author, email, March 23, 2001.

³⁵ Anchorage Daily News, November 4, 1995, A1; November 15, 1995, B7; December 7, 1995, D3.

³⁶ Anchorage Daily News, December 31, 1995, G2; January 4, 1996, B2; February 5, 1996, D2; February 9, 1996, B2. During the same period in which Ulmer and the task force were working on the subsistence problem, a group of sport fishers were working on the so-called "fish initiative." The initiative's purpose was to amend Alaskan fish and game regulations in order to guarantee that the needs of subsistence, sport fishing, and personal-use fishers would be considered prior to those of commercial fishers. In mid-October 1995, Lt. Gov. Ulmer approved the wording of the proposed initiative, and by the following February a sufficient number of signatures had been gathered to guarantee its placement on the November 1996 ballot. But on August 26, the Alaska Supreme Court declared the initiative unconstitutional. Anchorage Daily News, October 13, 1995, A1; February 16, 1996, B5; August 27, 1996, A1.

³⁷ Anchorage Daily News, March 7, 1996, B1, B3. Newspaper accounts reporting Stevens' action initially stated that he had extended the deadline to May 1997; two months later, however, similar accounts stated that Stevens' provision was "blocking the program from taking effect until at least Oct. 1." Anchorage Daily News, May 14, 1996, A1.

³⁸ Anchorage Daily News, April 23, 1996, A1; April 28, 1996, K2; May 8, 1996, A1; May 19, 1996, F2. The special session lasted from May 8 to June 6, but official business took place only during the session's first nine days and its last four days.

⁴⁰ Anchorage Daily News, March 21, 1996, E1, E3; March 22, 1996, B1, B3; April 5, 1996, B7.

⁴² Anchorage Daily News, May 12, 1996, C12; May 15, 1996, B2. Hearings were also held in Juneau, Sitka, Kotzebue, Bethel, Nome, Kenai/Soldotna, and Dillingham.

⁴⁴ Even Anchorage-area business leaders, whose opinions were normally in line with the legislative majority, spoke out in favor of a statewide vote. Anchorage Daily News, December 12, 1996, B1.

⁴⁵ See, for example, the following Anchorage Daily News citations: May 25, 1990, C4; June 13, 1992, B3; December 3, 1997, B1; May 1, 1998, B1; and May 25, 1998, A1.

⁴⁶ Anchorage Daily News, May 13, 1997, D1; May 23, 1997, A1. Several Native legislators submitted their own resolution (HJR 3); it fared no better than the administration's proposal.

⁴⁷ The governor's task force was composed of Gov. Knowles, Lt. Gov. Ulmer, Senate President Mike Miller, House Speaker Gail Phillips, ex-Attorney General Charlie Cole, Permanent Fund leader Byron Mallott, and ex-Governor Jay Hammond. Anchorage Daily News, July 10, 1997, B1; July 27, 1997, G2.

⁴⁸ Anchorage Daily News, June 18, 1997, B1; July 19, 1997, D10. The AOC-backed proposal, HJR 21, had been introduced by Reps. Beverly Masek (R-Willow) and Scott Ogan (R-Palmer) and had been co-sponsored by nine other House members during the recently-concluded session.

⁴⁹ Anchorage Daily News, July 27, 1997, G2; August 25, 1997, E2; September 6, 1997, A1, A10.

⁵⁰ [OSM], "Questions and Answers," December 8, 1997, 3. (This handout was distributed at the March 12, 1998 public meeting in Anchorage; see below.) The Final Rule on subsistence fisheries (Federal Register 64 [January 8, 1999], 1285), stated that the Interior Secretary, with the concurrence of the Agriculture Secretary, signed a Finding of No Significant Impact. Bill Knauer to author, March 19, 2001.

⁵² These amendments, in fact, were successfully included in the Interior appropriations bill, which passed Congress and became law. However, both amendments had a so-called "sunset clause." Because the Alaska legislature failed to act on a subsistence bill prior to December 1, 1998, the amendments never took effect.

⁵³ Anchorage Daily News, October 1, 1997, A1, A4; October 2, 1997, A1; September 6, 1997, A10. Although state legislative leaders sometimes stated that federal officials actively coveted an increased management role, such was not the case. As Fish and Wildlife staffer William Knauer explained it, "We would just as soon not do that ... I can categorically say there's not a one of us that is champing at the bit. The folks in [the federal subsistence] program ... have got other things they could be accomplishing for the resources here in Alaska." Perhaps because they neither wanted nor expected to manage the subsistence fisheries, federal subsistence officials had no contingency plans regarding a specific management strategy; if Stevens' postponement had not occurred, officials would presumably have spent the winter of 1997-1998 formulating proposed and final subsistence fisheries regulations.

⁵⁵ This mileage amounted to approximately 52.2% of Alaska's 196,234 miles of inland waterways.

⁵⁶ This quote is taken from a general description of the various alternatives, as noted on page 66218 of the December 17, 1997 Federal Register. The verbiage in the proposed regulation itself (Subpart A, Section 3, Parts (b)(1) and (b)(2), as noted on page 66222 in the same document) reads somewhat differently, though the intent is the same.

⁵⁷ Federal Register 62 (December 17, 1997), 66216-18. The proposed regulations also addressed the "selected but not conveyed" issue, which was discussed in Chapter 8.

⁵⁸ Anchorage Daily News, December 30, 1997, A1; January 16, 1998, B8. On December 29 the ALC had voted 9-2, with three abstentions, in favor of spending $175,000 to support the proposed suit.

⁶⁰ Alaska House Bill History, 1997-1998, 148. The bill went nowhere; after January 12, no further action took place on it.

⁶¹ HJR 46 proposed the following amendment to the Alaska Constitution: "The legislature may, consistent with the sustained yield principle, provide a priority for subsistence uses in the taking of fish and wildlife and other renewable natural resources based on place of residence." HB 320—which, like HJR 46, was submitted by the Rules Committee on January 14 at the governor's behest—was a companion bill, containing changes to the Fish and Game regulations based on language contained in HJR 46.

⁶² HB 406 passed the House, by a 23-16 vote, on April 21; it passed the Senate, 14-5, on May 11.

⁶³ Anchorage Daily News, May 25, 1998, A1, A10. Another bill proposing a subsistence amendment, submitted by the House Judiciary Committee on March 30, was HJR 66; it was no more successful than the administration-backed resolution.

⁶⁴ Gov. Knowles vetoed HB 406 on June 12, more than a month after warning that he would do so.

⁶⁵ Anchorage Daily News, May 13, 1998, A1; May 14, 1998, A1; May 22, 1998, D1; May 25, 1998, A10. On May 21, the lobbying group raised tempers throughout the state when it published a photo of a person who bore a strong likeness to former Soviet Premier Nikita Khrushchev; under that photo ran the caption, "There's a name for people who refuse to let other people vote."

⁶⁶ Anchorage Daily News, May 25, 1998, A10; June 2, 1998, A1; Alaska House Bill History, 1997-1998, 97-98, 281-82.

⁶⁷ Anchorage Daily News, July 4, 1998, A1; July 20, 1998, A1; July 21, 1998, A1; July 22, 1998, A1.

⁷¹ RuralCAP website (www. ruralcap.com/subcurrent.htm) update for September 10, 1998, pp. 8-9.

⁷² According to the Anchorage Daily News, October 16, 1998, D1, Williams submitted her resignation letter on October 6. She had discovered on that day that Secretary Babbitt—without her knowledge—was negotiating with Senator Stevens on another extension.

⁷³ USDI News Release, October 13, 1998; Sen. Ted Stevens Press Release, October 13, 1998; Anchorage Daily News, October 14, 1998, A1.

⁷⁴ [OSM], "Summary of Final Regulations" — part of FSB News Release, January 5, 1999; Federal Register 64 (January 8, 1999), 1277-84; RuralCAP website (www. ruralcap.com/subcurrent.htm), January 1999, 2; Office of the Alaska Governor, Press Release, April 19, 1999 (99-076); Anchorage Daily News, April 9, 1999, B1-B2.

⁷⁶ Anchorage Daily News, February 6, 1999, C1, C3; Office of the Alaska Governor, Press Release, April 19, 1999 (99-076).

⁸⁰ Sen. Ted Stevens, Press Release, October 13, 1998; Anchorage Daily News, June 2, 1999, A1.

⁸² Anchorage Daily News, August 10, 1999, B3; August 11, 1999, B1; Office of the Alaska Governor, Press Release, August 10, 1999 (99-171). The wording of the amendment was a slight modification of that which had appeared in a 1998 legislative resolution, as noted above.

⁸³ Many of these terms, it may be noted, were similar if not identical to those used in ANILCA Section 804.

⁸⁶ The resolutions, it may be noted, used "place of residence" instead of "rural." Based on that terminology, the Alaska Attorney General's office stated that the resolution would prevent a takeover, but not without an accompanying statute that specified a rural subsistence priority. Interior Department solicitors made no initial comments regarding the resolution's legitimacy. Anchorage Daily News, September 30, 1999, A1.

⁸⁷ Ibid., A1, A12. Among those who opposed the resolution, one of the most outspoken was Senator Robin Taylor (R-Wrangell). He stated, "What we're really talking about here is ... are [state officials] going to enforce the federal law against our people, or is the federal government going to enforce the federal law against our people?" He and other opponents complained that the rural priority discriminated against urban Alaskans who wanted to hunt and fish for food; given that lack of fairness, it mattered little who managed the resources.

⁸⁹ On October 1, the Office of Subsistence Management released 1) a press release, with quotes from Bruce Babbitt, Marilyn Heiman, and Mitch Demientieff, 2) a two-page "Questions and Answers" sheet, and 3) a "Summary of Final Regulations" sheet. These "final regulations" had first appeared in the January 8, 1999 Federal Register. That same day, the state made its own views known via a press release from the ADF&G Commissioner.

⁹⁰ [OSM], "Questions and Answers Regarding the Proposed Rulemaking for Extended Jurisdiction in Alaska Subsistence Management," September 30, 1997.

⁹¹ Bruce Babbitt (Interior Secretary) to Franklin D. Raines (OMB Director), April 21, 1998.

⁹³ Secretary Babbitt's April 21, 1998 letter to OMB Director Raines specified that the FY 1999 budget for other federal agencies involved in the subsistence fisheries management would be as follows: F&WS, $3.8 million; USFS, $3.0 million; BIA, $0.5 million; BLM, $0.2 million; and Office of the Solicitor, $0.1 million. Of the projected $9.5 million budget, $3.3 million was to be directed to program administration, $5.1 million to resource monitoring, and $1.0 million to law enforcement.

⁹⁴ Proposed FY 99 Budget Chart, July 30, 1998. The NPS proposed a Coastal Cluster (KATM, LACL, and ANIA); an Interior Cluster (DENA, GAAR, and YUCH), an Arctic Cluster (BELA, CAKR, KOVA, and NOAT); and a Copper Basin/Southeast Cluster (WRST and GLBA). KEFJ, KLGO, and SITK were not included because subsistence was not an authorized activity in those units. With its allotment, the agency proposed seven positions in each cluster; all would work a six-month stint in FY 1999, with four of the seven gaining year-round positions in FY 2000.

⁹⁵ The fourteen issues were 1) Organizational structure, staffing, and budget, 2) Cooperative management with tribes and Native organizations, 3) Federal-state cooperative management strategy, 4) National Marine Fisheries Service/North Pacific Fisheries Management Council coordination, 5) Regional council structure, 6) Petitions for extraterritorial jurisdiction, 7) Customary trade, 8) Training and education needs and options, 9) Annual regulatory process, 10) Harvest reporting, 11) Data management, 12) Public outreach, 13) Enforcement, and 14) Federal Subsistence Board structure.

⁹⁶ FSB Staff Committee, "Fisheries Implementation Work Plan," March 30, 1999; Sub-Committee for the Development of a Blueprint for Interagency Functions, Roles, and Responsibilities, Federal Subsistence Fisheries Management: Operational Strategy for Information Management, c. August 2, 1999, 39.

⁹⁷ FSB Staff Committee, "Federal Subsistence Fisheries Implementation Plan," in Bob Gerhard files. The plan was dated April 21, 1999, but the various issue papers that comprised the plan were not completed until mid-June.

⁹⁸ Sub-Committee for the Development of a Blueprint for Interagency Functions, Roles, and Responsibilities, Federal Subsistence Fisheries Management: Operational Strategy for Information Management, c. August 2, 1999. Besides Patty Rost, the other subcommittee members included Charles Krueger (FWS), Taylor Brelsford (OSM), Cal Casipit (USFS), Ken Harper (F&WS), Ida Hildebrand (BIA), Ken Thompson (USFS), and Laird Jones (ADF&G liaison).

¹⁰⁰ In later months, these three classes were boiled down to two: 1) stock status and trends studies, and harvest monitoring/TEK studies.

¹⁰¹ Subcommittee on Organizational Structure, Staffing, and Budget, Federal Subsistence Fisheries Management: Organizational Structure and Program Strategy, drafts dated August 16, August 30, and September 9, 1999. Members of the subcommittee included Peggy Fox (BLM), who chaired the group, along with Bob Gerhard (NPS), Charles Krueger (F&WS), and Taylor Brelsford (OSM).

¹⁰² OSM, "Federal Subsistence Fisheries Update," July 1999, 2; Subcommittee on Organizational Structure, Staffing, and Budget, Federal Subsistence Fisheries Management: Organizational Structure and Program Strategy, September 15, 1999, page i.

¹⁰³ Bob Gerhard to NPS Subsistence staff, email, August 26, 1999. Gerhard notes that the F&WS also hired an employee prior to the assumption to work on subsistence projects.

¹⁰⁴ Subsistence Advisory Committee meeting notes, October 7, 1999 and November 5, 1999; Janis Meldrum to NPS Subsistence Staff, email, November 3, 1999; Kenneth L. Smith to Frank Murkowski, September 18, 2000.

¹⁰⁵ [OSM], "Agenda, Federal Subsistence Fisheries Management Training," (program agenda), January 24-27, 2000.

¹⁰⁶ Federal Subsistence Management Program, "Fisheries Resource Monitoring Projects for Spring 2000," review draft, January 14, 2000. The budget for all 45 projects totaled some $5.6 million. Of that total, 40% was directed to the ADF&G, 38% to rural organizations or local-hire projects, and 22% to federal agencies. OSM, Fisheries Information Service, "Proposed Projects Budget Worksheet," April 22, 2000, 7.

¹⁰⁷ State of Alaska News, January 26, 2000 (www.state.ak.us/local/pr0023.html); Anchorage Daily News, January 27, 2000, B1. Judge Holland, for legal reasons, had been unable to issue a final order until after the last moratorium expired on September 30, 1999.

¹⁰⁸ Anchorage Daily News, February 10, 2000, B1; February 16, 2000, A1; April 25, 2000, A1.

¹⁰⁹ "Interim Memorandum of Agreement for Coordinated Fisheries and Wildlife Management for Subsistence Uses on Federal Public Lands in Alaska, between U.S. Fish and Wildlife Service, U.S.D.A. Forest Service, National Park Service, Bureau of Land Management, Bureau of Indian Affairs, and the Federal Subsistence Board and Alaska Department of Fish and Game, Alaska Board of Fisheries, and Alaska Board of Game," April 26, 2000.

¹¹⁰ Another new hire during this period was Rachel Mason, a cultural anthropologist formerly with the F&WS's Office of Subsistence Management. Mason began work in January 2000 and assumed a broad range of duties, many of which were related to subsistence.

¹¹¹ See the following closure announcements: FSB Press Release, August 11, 2000 (special action); Federal Register 65 (August 24, 2000), 51542-44; Federal Register 65 (September 13, 2000), 55190-92.

¹¹² Peggy Fox and Kevin C. Duffy to Frank Rue, etc., memorandum, May 25, 2000. The protocol signed on May 24 and May 25 was called the Yukon River Drainage Subsistence Salmon Fishery Management Protocol for the Year 2000; as its title suggests, it was valid for only one year.

¹¹³ Federal Subsistence Board, News Release, May 30, 2000. In two of the twelve regions, NPS officials played a lead role; they were Gary Candelaria (WRST Superintendent) and Dave Spirtes (WEAR Superintendent). The twelve regions have since been increased to thirteen.

¹¹⁷ Ibid., July 20, 2000, B1 and May 8, 2001, B1, B3; Bob Gerhard to Subsistence Staff, email, December 12, 2000; Governor of Alaska, August 27, 2001 press release (#01196).

¹¹⁸ Anchorage Daily News, issues of September 14, 2001, B2; September 27, 2001, B6; October 5, 2001, B1; and October 13, 2001, B4.

¹¹⁹ Ibid., issues of January 13, 2002, B1; February 15, 2002, B-1; and April 3, 2002, A1.

¹²⁰ Ibid., issues of May 18, 2002, A8; May 20, 2002, B1; and June 24, 2002, B1.