Appendix A
Chronology of State and Federal Subsistence Management

1978: ALASKA SUBSISTENCE LAW

The Alaska legislature passed the state’s subsistence law in 1978. The law established subsistence as the highest priority use of the state’s fish and game resources, directed the Boards of Fisheries and Game to develop regulations to allow for subsistence harvests whenever a biological surplus was available, and created the Division of Subsistence within the Alaska Department of Fish and Game. The 1978 law defined subsistence uses of fish and wildlife but not subsistence users.

1980: ALASKA NATIONAL INTERESTS LANDS CONSERVATION ACT

Congress passed the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. Title VIII of ANILCA establishes subsistence uses of fish and wildlife and other renewable resources as the priority consumptive use of all resources on public lands. Subsistence uses are customary and traditional uses by rural Alaska residents of wild, renewable resources for personal or family consumption, for the making and selling of handicrafts, for barter or sharing for personal or family consumption, and for customary trade. Title VIII provides that the Secretaries of Interior and Agriculture shall not implement its provisions if the state enacts laws consistent with the priority. In 1980, state law was consistent with Title VIII, and the state managed subsistence uses on all lands in Alaska.



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Developing a Research and Restoration Plan for Arctic-Yukon-Kuskokwim (Western Alaska) Salmon Appendix A Chronology of State and Federal Subsistence Management 1978: ALASKA SUBSISTENCE LAW The Alaska legislature passed the state’s subsistence law in 1978. The law established subsistence as the highest priority use of the state’s fish and game resources, directed the Boards of Fisheries and Game to develop regulations to allow for subsistence harvests whenever a biological surplus was available, and created the Division of Subsistence within the Alaska Department of Fish and Game. The 1978 law defined subsistence uses of fish and wildlife but not subsistence users. 1980: ALASKA NATIONAL INTERESTS LANDS CONSERVATION ACT Congress passed the Alaska National Interest Lands Conservation Act (ANILCA) in 1980. Title VIII of ANILCA establishes subsistence uses of fish and wildlife and other renewable resources as the priority consumptive use of all resources on public lands. Subsistence uses are customary and traditional uses by rural Alaska residents of wild, renewable resources for personal or family consumption, for the making and selling of handicrafts, for barter or sharing for personal or family consumption, and for customary trade. Title VIII provides that the Secretaries of Interior and Agriculture shall not implement its provisions if the state enacts laws consistent with the priority. In 1980, state law was consistent with Title VIII, and the state managed subsistence uses on all lands in Alaska.

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Developing a Research and Restoration Plan for Arctic-Yukon-Kuskokwim (Western Alaska) Salmon 1982: JOINT BOARDS RURAL REGULATION Alaska’s subsistence statute originally did not include a preference for rural residents. Nonetheless, in 1982, the Joint Boards of Fisheries and Game adopted regulatory language establishing a subsistence priority for rural residents. 1985: MADISON DECISION In 1985, the Alaska Supreme Court ruled in Madison v. Alaska Department of Fish and Game, 696 P.2d (Alaska 1985), that the Joint Boards’ regulations were not consistent with the 1978 subsistence statute, because the statute did not provide a priority for rural residents. Therefore the regulations were invalid, and the state fell out of compliance with Title VIII. 1986: AMENDMENTS TO ALASKA’S SUBSISTENCE LAW In 1986, the Alaska legislature substantially changed the state’s 1978 subsistence law. It amended the definition of “subsistence uses” to require residency in a rural area and it defined “rural areas.” The amended law required the state boards to identify which fish stocks and wildlife populations were customarily and traditionally taken by subsistence users and to adopt regulations providing subsistence users reasonable opportunity to harvest these resources. The Department of Interior again found the state to be in compliance with Title VIII of ANILCA. 1989: MCDOWELL DECISION A group of nonrural residents filed a court challenge to the state’s revised subsistence law. In 1989, the Alaska Supreme Court ruled in McDowell v. State of Alaska, 785 P.2d 1 (Alaska 1989), that the rural preference language of the state’s subsistence statute violated the equal access clauses of the state constitution. Consequently, the state’s subsistence program was no longer in compliance with Title VIII of ANILCA.

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Developing a Research and Restoration Plan for Arctic-Yukon-Kuskokwim (Western Alaska) Salmon 1990: FEDERAL MANAGEMENT BEGINS Because state law no longer provided rural residents a priority for subsistence hunting and fishing on public lands, the secretaries of Interior and Agriculture assumed management authority over subsistence uses on public lands in Alaska on July 1, 1990. They created the Federal Subsistence Board (FSB), composed of one representative from each of the five federal land management agencies in Alaska (Bureau of Land Management, National Park Service, Bureau of Indian Affairs, U.S. Forest Service, and U.S. Fish and Wildlife Service). In addition, a member of the public serves as the FSB chair. Initially, the federal agencies interpreted “public lands” to include only lands and waters owned by the United States. Therefore, the agencies generally did not regulate subsistence uses in navigable waters. 1992: AMENDMENTS TO THE ALASKA SUBSISTENCE LAW In 1992, the Alaska legislature further amended the state’s subsistence law. These statutory changes did not bring the state’s subsistence laws into compliance with Title VIII, however. The law continued to grant a subsistence priority over other consumptive uses but required the state boards to identify nonsubsistence areas where no subsistence priority exists. To comply with the 1992 law, the Boards of Fisheries and Game conducted a comprehensive review of existing subsistence regulations and developed new subsistence regulations, including those creating nonsubsistence areas. 1994: KATIE JOHN DECISION After the secretaries assumed subsistence management authority on public lands, several rural residents filed suit against the state and the United States to include navigable waters in the federal subsistence program. In March 1994, the U.S. District Court in Anchorage ruled in Katie John v. United States that “public lands” to which Title VIII applies include all navigable waters in Alaska under the navigational servitude doctrine. On appeal, the U.S. Court of Appeals for the Ninth Circuit ruled in April 1995 that the navigational servitude does not constitute “public

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Developing a Research and Restoration Plan for Arctic-Yukon-Kuskokwim (Western Alaska) Salmon lands” within the meaning of ANILCA. However, it found that “public lands” include navigable waters in which the United States has a reserved water right, and it ordered the federal agencies to identify the waters subject to that right. The U.S. Supreme Court denied the state’s petition for certiorari review of the Ninth Circuit decision. 1994: BABBITT DECISION In Alaska v. Babbitt, which was consolidated with the Katie John v. United States case, the state challenged the authority of the federal agencies to preempt state management of subsistence harvests on public lands. The U.S. District Court in Anchorage ruled that Congress granted the secretaries authority in ANILCA to preempt state management. In January 1995, the state withdrew its appeal of the Alaska v. Babbitt case. 1995: KENAITZE DECISION In State v. Kenaitze Indian Tribe, 894 P.2d 632 (Alaska 1995), the Alaska Supreme Court upheld the nonsubsistence area provisions of the state’s 1992 subsistence law. However, the court struck down the state’s “tier II” criteria of proximity of domicile in light of McDowell v. State of Alaska. The court ruled that the practice of considering proximity of the applicant’s domicile to a fish or game population in determining eligibility for tier II permits violated the equal access clauses of the state constitution. 1995: TOTEMOFF DECISION In October 1995, the Alaska Supreme Court ruled in Totemoff v. State, 905 P.2d 954 (Alaska 1995), that the state may enforce its hunting and fishing laws against subsistence users on federal land so long as state laws do not conflict with federal laws or regulations. The state therefore could prosecute a subsistence user charged with spotlighting deer, because state law was not in conflict with ANILCA. The court also ruled that the state had jurisdiction to prosecute the subsistence hunter because he violated Alaska law in navigable waters and ANILCA does not give the federal government authority to regulate subsistence uses in naviga-

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Developing a Research and Restoration Plan for Arctic-Yukon-Kuskokwim (Western Alaska) Salmon ble waters of Alaska. This decision directly conflicts with the Ninth Circuit’s holding in Katie John v. United States. 1998: LEGISLATIVE COUNCIL LAWSUIT In January 1998, the Alaska Legislative Council and 17 state legislators in their individual and official capacities filed suit challenging Title VIII and federal regulations for subsistence harvests on public lands. The District Court dismissed the case in July 1998. Although the Legislative Council’s claims were different from the state’s claims in the Alaska v. Babbitt case, the court barred claims that could have been brought in that case. The court also found that the 6-year statute of limitations bars a facial Equal Protection challenge to ANILCA’s rural/nonrural distinction. Lastly, the court declined on ripeness grounds to review the proposed rule extending federal jurisdiction to navigable waters because the rule was not final when the case was initiated. On July 13, 1999, the Court of Appeals for the D.C. Circuit affirmed on other grounds, ruling that the plaintiffs lacked standing to sue. The court held that the claimed injuries to the council and legislators in their official capacities are losses of political power, not personal losses, and are not sufficient to confer standing. Similarly, the Legislative Council suffers no injury distinct from the state’s, and the Council is not authorized to bring suit on behalf of the state. The legislators in their individual capacities did not allege sufficient facts to show injury that would entitle them to challenge ANILCA on equal protection grounds or to challenge federal subsistence regulations under the Administrative Procedures Act. 1999: EXPANDING FEDERAL PROGRAM In January 1999, the secretaries issued a final rule implementing the Katie John v. United States decision. The rule became effective on October 1, 1999. The final rule expands the federal subsistence program to include all waters within the exterior boundaries of 34 identified federal areas, including waters passing through inholdings within these areas as well as inland waters adjacent to the exterior boundaries of the 34 areas. The rule also expands federal jurisdiction to lands selected but not conveyed to the state of Alaska and Alaska Native Corporations if the

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Developing a Research and Restoration Plan for Arctic-Yukon-Kuskokwim (Western Alaska) Salmon land is within the boundaries of the National Park System, National Wildlife Refuge System, National Wild & Scenic River Systems, National Forest Monument, National Recreation or Conservation Areas, or new national forest or forest addition.