Larry Roberts drafted the original Subsistence Management Notes in 1994. These short articles appeared within four separate issues of the USDA-Forest Service, Alaska Region, “Sourdough Notes” in 1994 and 1995. These narratives describe the historical context in which Federal jurisdiction of Alaska Subsistence came about and evolved.
On March 30th, 1994, in a decision that could fundamentally change the role the State of Alaska has traditionally played in the management of fisheries resources, Federal District Court Judge H. Russel Holland ruled that the State of Alaska did not have the authority to regulate subsistence fisheries within navigable waters of the state.
Judge Holland referenced public lands managed for subsistence must be within the State of Alaska as defined within ANILCA. These boundaries are delinated by the inland waters (i.e., most lakes, streams, rivers, and salt water areas) which extend three miles from the coastline.
In his ruling, Judge Holland stated that, “By limiting the scope of Title VIII (of ANILCA) to non-navigable waters”, the Secretaries of Interior and Agriculture have, “to a large degree, thwarted Congress’ intent to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.”
Judge Holland’s ruling is the latest in a series of long and complicated legal challenges between the state and federal agencies over the question of subsistence management. The precedent setting decision came in the case of two Athabascan elders, Katie John and Doris Charles, who wanted to be able to subsistence fish at their traditional camp along the Copper River of Alaska’s interior. The two women sued the federal government, arguing federal agencies have the responsibility to ensure subsistence rights under ANILCA.
The court ruling addressed two broad questions: Who is entitled to manage subsistence fisheries under ANILCA?; and
Where does ANILCA apply?
The “who” question is rooted in federal law which mandates a rural preference for the taking and use of subsistence resources. While state law allows all Alaskans equal access to these resources, regardless of where they live.
In answering the “where” question, judge Holland ruled that the federally mandated rural preference should apply to all navigable and non-navigable waters within the state.
Judge Holland granted a 60 day “stay” order on the decision. This is to allow for possible appeals to the Ninth Circuit Court. Should the Ninth Circuit uphold (rule in favor of) judge Holland’s decision, this will “preclude the State of Alaska from managing fish resources in navigable waters throughout the state of Alaska for subsistence purposes.”
It will also require the Secretaries of Interior and Agriculture, through the Federal Subsistence Board, to immediately take over and implement Title VIII of ANILCA in navigable waters in the State of Alaska.
During a special legislative session called by Governor Walter Hickel in 1991, state lawmakers agreed to a partial remedy to the subsistence impasse. The legislature passed a bill which split the state into zones where subsistence was allowed, and other areas where it was banned. People who lived in urban areas could conceivably be allowed to travel to rural areas and subsistence hunt and fish. In times of shortages, the rural residents would have the priority for the taking of fish and wildlife for subsistence. Allocation of these resources was based on formulas that were to take into account how close the individual/family lived to the resource(s), and what access there was to other food(s).
On May 29 1992, Final Federal Subsistence Management Regulations for Public Lands in Alaska (Subparts A-General Provisions; B-Program Structure; and C-Board Determinations) were published in the Federal Register. Subpart D regulations were published on May 28, 1992, and deal with definitions,prohibitions, methods and means, individual species seasons and bag limits, and fish and shellfish. The distinction between the two regulations is required because Subpart D is subject to an annual public review cycle.
In October of 1993, state Superior Court Judge Dana Fabe ruled that the state’s concept of non-subsistence zones was unconstitutional. This ruling was made following legal arguments made by the Kenai-area Kenaitze Indians. The Kenaitze argued that the law lacked sufficient access to hunting and fishing areas, as much of the Kenai Peninsula was set aside as a non-subsistence zone. The effect of the ruling means the State’s subsistence dilemma continues without an end in sight.