SUBSISTENCE MANAGEMENT IN
ALASKA
Introduction
1) What Is Subsistence?
2) Who Gets Subsistence
Uses?
3) What Is the
Subsistence Priority?
4) How
Did the Subsistence Priority Come About?
5) Why
Is the Federal Subsistence Priority ‘Rural’?
6) Why Doesn’t the State Have a Rural Subsistence Priority?
7) What Is Dual Management?
8) Who Gets the Subsistence Priority under Dual Management?
9) What Is ‘Tier II’?
10) Who Makes
Subsistence Regulations?
11) Where Are Areas of State and Federal Jurisdiction for
Subsistence Management?
12)
What Laws and Regulations Govern Subsistence Uses?
13) How
Did Subsistence Management Split in Two?
14) What
Does ‘the Federal Takeover’ Refer To?
15) Why Did Federal Management of Fisheries Start Nine Years After
Management of Wildlife?
16) Does the Federal Government Manage All Subsistence Activities on
Its Land and Waters?
17) How
Does the State of Alaska’s Subsistence Priority Work?
18) How Does the Federal ‘Rural’ Subsistence Priority Work?
19) Can Federal Managers Enforce the Rural Priority on State Lands
and Waters?
20)
How Did the State Manage Subsistence Prior to 1989?
21) What
Happened When Federal Management Began?
22)
What Happened to the State’s Program after 1990?
23) What Are
‘Non-Subsistence’ Areas?
24) What Is
the Federal Definition of ‘Rural’?
25) What Is the Definition of ‘Customary and Traditional’?
26) What Is ‘Personal Use’?
27) What Are the Major Differences between State and Federal
Management?
28) What
Is the 'Full-Time' Subsistence Priority?
29) What Is Federal
Court Oversight?
30) What Is ‘Customary
Trade’?
31) What Is ‘Co-Management’?
32) What about
Subsistence Halibut?
INTRODUCTION
In Alaska,
subsistence is generally used to describe to the taking of fish, wildlife
and other resources to provide for
one's self and one's family.
But in
regulations governing use of Alaska's fish and wildlife, subsistence
specifically refers to a special use of fish and wildlife available
only to Alaska residents, based on customs and traditions.
Subsistence
use is one of several legally recognized uses of wild
resources, along with commercial, sport and personal use. Among these
uses, subsistence is accorded the highest priority when deciding who
gets Alaska's fish and wildlife.
Due partly to its No. 1
ranking for uses of Alaska's coveted fish and wildlife, subsistence is one of the state's most prominent
and divisive public issues. Debate over subsistence includes who gets
subsistence uses, how uses are defined and managed, and how
subsistence management decisions are made.
The debate can be
sensitive, heated and complicated. And it’s no wonder. Subsistence is wrapped up
in history, politics, tradition and law. Subsistence decisions
typically involve questions of acquiring food, preserving cultural
practices, designating hunting and fishing rights and managing public
resources -- all matters that evoke strong feelings in Alaska.
Because of an
unresolved discrepancy between state and federal law, state and
federal agencies each manage subsistence separately on their
respective lands in Alaska. Generally, the state subsistence program
offers a large number of users a limited opportunity to participate in
hunts and fisheries statewide. The federal program offers a smaller
number of users greater subsistence opportunities, but ones limited to
areas near their communities.
This divided state and
federal – or “dual” – subsistence management is the peculiar product of
30 years of laws and lawsuits, political fixes, compromises, and adjustments. Most state and federal
resource managers agree that divided management is not the ideal model
for governing subsistence uses of fish and wildlife.
But until a better system is forged by courts or
hashed out by elected leaders, dual management is the law of the land.
To understand dual management, it helps to know some of the history of
the subsistence issue.
It's also important to keep in mind that management of subsistence is
continually evolving. State and federal management of subsistence
influence each other. Changing laws and regulations create new
restrictions and allowances. Other factors, such as population growth
and fish and wildlife dynamics, also affect subsistence decisions.
This information was developed by United
Fishermen of Alaska to help you understand the basics of
subsistence management. It is intended to demystify the federal
and state subsistence management models, and to explain some of the
terms used in discussions of subsistence. We hope you find it helpful in
understanding this important issue.
The questions on this
webpage are arranged from general to specific, and roughly from past
to present. In this format, this page can be used to answer a single,
specific question, or, when read in sequence, provides a broad overview
of subsistence management.
1) WHAT IS
SUBSISTENCE?
In the broadest sense, subsistence is the taking
of fish, wildlife or other wild resources for the sustenance of
families, communities and cultures.
Subsistence has been a
way of life for Alaska Natives for thousands of years. Subsistence
activities also are vital to many non-Natives in Alaska. Subsistence
is recognized by the United States and by the State of Alaska as the
highest-priority consumptive use of fish and wildlife. In a regulatory
and legal sense, subsistence is a protected set of uses of fish and
wildlife, reserved for Alaska residents.
Both U.S. and Alaska law
define subsistence uses and the two definitions are nearly identical.
Both establish subsistence as customary and traditional uses of wild,
renewable resources as food, shelter, fuel, clothing, tools, or
transportation and for use in barter, sharing and customary trade.
In regulations, subsistence uses can and have been distinguished
from commercial, sport and personal use in regulation by gear,
seasons, bag limits and methods and means of harvest. Subsistence
harvests account for only about 2 percent of all fish and wildlife
harvests in Alaska, but management of subsistence may impact other
resource users, particularly when their uses are restricted to provide
for subsistence.
Besides subsistence,
sport and personal use regulations allow Alaskans to hunt and fish for
food.
2) WHO
GETS SUBSISTENCE USES?
All Alaska residents are
eligible to participate in all subsistence fisheries and hunts
established by the State of Alaska on state lands and waters and on private
lands. Not all Alaskans may qualify,
however, as the state sometimes must discriminate among subsistence
users to reduce fishing or hunting pressure and protect limited fish
and wildlife populations.
It's different on
most federal
lands and waters, where only rural Alaska residents are eligible for
subsistence uses established by federal regulations. In nearly all
cases, rural residents only qualify federal subsistence hunts and
fisheries near the communities where they live, based on decisions
about which uses are "customary and traditional." (In the
few instances when no
decisions have been made about customary and traditional uses of a
fish or wildlife harvest opportunity, federal
subsistence fisheries and hunts are open to all Alaska rural
residents.)
Additionally, all Alaskans are eligible for all
state-established subsistence hunts and fisheries on federal lands and
waters where not restricted by federal managers.
3) WHAT IS THE SUBSISTENCE PRIORITY?
The “subsistence
priority” means that, under state and federal law, subsistence uses
are accorded priority over other uses of fish and wildlife, including
sport, commercial and personal use.
4)
HOW DID
THE SUBSISTENCE PRIORITY COME ABOUT?
Subsistence, as a name
for a special group of resource uses and users, came into use during
the 1960s and 1970s.
The question of
subsistence was prominent when the U.S. Congress settled indigenous
land claims with the Alaska Native Claims Settlement Act of 1971. The
act extinguished aboriginal hunting and fishing rights, but federal
lawmakers expressed the expectation that the U.S. Secretary of
Interior and the State of Alaska would take action to protect
subsistence uses practiced by Alaska Natives.
The State of Alaska was
moving in a similar -- but not identical -- direction. To recognize
traditional practices, the State designated some fisheries as
subsistence in 1960. But as the state's population swelled in the
1970s, fish and wildlife managers began to consider not only creating
new distinctions between groups of fishermen and hunters, but also
assigning priorities for certain uses as a means of protecting limited
resources and providing for traditional harvests.
In 1975, when Western Arctic caribou herds
declined, the state’s Board of Game attempted to establish criteria
that would grant hunting permits to residents based on customary and
direct dependence on caribou, local residency and availability of
alternate resources. A court struck down this initial attempt to
establish criteria for subsistence uses, but work on the question
continued.
Motivated by efforts in
the U.S. Congress to define subsistence uses on federal lands as part
of the Alaska National Interest Lands Conservation Act (ANILCA), the
Alaska Legislature pass Alaska's first subsistence law in 1978. The
law defined subsistence as "customary and traditional uses" and
required that such uses get priority over other uses, such as
commercial and recreational uses. The new law, however, did not define
subsistence users.
In 1980, Congress put
into law its nine-year-old promise to protect subsistence by adopting Title VIII of the Alaska
National Interest Lands Conservation Act (ANILCA). While most of
ANILCA designated large tracts of federal land for conservation, Title
VIII specifically addressed subsistence uses and users, establishing
them as “customary and traditional uses by rural Alaska residents.”
Under Title VIII,
subsistence uses by rural residents get priority over other uses at times when harvest
restrictions were necessary to protect wildlife populations. Further, ANILCA mandates that if the state fails
to protect subsistence under the federal definition, the federal
government will take over
management of fish and wildlife on federal lands. Title VIII also
establishes the U.S. District Court in Alaska as arbiter of
enforcement of the new law.
5)
WHY IS THE FEDERAL SUBSISTENCE PRIORITY “RURAL”?
The “rural”
qualification for subsistence
became the sharpest point of controversy about subsistence, a distinction that
led to what has been more than a decade of fractured management
of subsistence in Alaska. Why was it adopted?
Congress, which has authority over
Native American affairs granted in the U.S. Constitution, considered
adopting a Native priority for
subsistence fishing and hunting on federal lands. Such a priority,
however, couldn’t have been administered by the State of Alaska
without amending the state's constitution, which does not establish a specific
relationship with Alaska Native tribes. Congress also saw a need to
protect subsistence uses by non-Native rural residents, many of whom
had adopted a subsistence way of living.
For the State of Alaska to continue to manage
fish and wildlife on all lands in Alaska, including federal lands – as
it had since statehood – the state and federal subsistence laws would
have to mesh. Reserving subsistence uses for rural residents was an attempt to
dovetail federal regulations with Alaska’s constitution and to ensure
continued state management of fish and wildlife statewide on all
lands in Alaska.
(The rural subsistence
priority also recognizes that fish and wildlife resources are not
limitless and that there are communities where
dependence on fish and wildlife is high. It directs management
agencies to provide for that dependence.)
6)
WHY DOESN’T THE STATE HAVE A RURAL SUBSISTENCE PRIORITY?
To bring the State of
Alaska into compliance with Title VIII of ANILCA and to retain
management of fish and wildlife on all lands in Alaska, the
Alaska Boards of Fisheries and Game in 1982 adopted regulations providing for
the rural subsistence priority under the state’s 1978 subsistence law.
When these regulations were challenged successfully in court on the
grounds that they weren't backed by law, the Alaska
Legislature amended the state's subsistence law by adding the
rural qualification in 1986.
In the ruling
McDowell v. State of Alaska, the Alaska Supreme Court
in 1989 found that the state subsistence law's rural criteria violated
portions of the Alaska Constitution, including the clause that reserves the state’s fish and
wildlife resources for common use. As a result, the state began to
implement a subsistence priority for all Alaskans, without regard to
where they live. Three years later, the state Supreme Court confirmed
McDowell and found that all Alaskans are eligible for
subsistence in areas under state jurisdiction.
With federal and state law at odds, federal
and state management of subsistence headed off in separate directions.
To implement a rural subsistence priority today would require an
amendment to the state's constitution and changes to state statutes.
7)
WHAT IS DUAL MANAGEMENT?
Due to this unresolved
discrepancy between state and federal law, Alaska is now split into
two jurisdictions for the purpose of managing subsistence uses:
1) Federal lands and waters, where federal
agencies have authority for managing subsistence for rural users, and,
2) State of Alaska and private lands and state
waters, where the State of Alaska has authority for managing
subsistence for all Alaskans.
8)
WHO GETS THE SUBSISTENCE PRIORITY UNDER DUAL MANAGEMENT?
On federal lands and waters, where the federal
government has management authority, rural Alaskans are eligible for
the federal subsistence priority. In areas where the State of Alaska
has management authority, all Alaskan residents are eligible for the state’s
subsistence priority.
9) WHAT IS
‘TIER II’?
Both the State of Alaska and the federal
government have processes for establishing preferences among
subsistence users when a fish or wildlife population isn’t big enough
to support harvest by all those who are eligible for subsistence uses.
Under the subsistence
program managed by the State of Alaska, this is called the “Tier II”
process. Tier II is an allocation system to distinguish and identify
those individuals most dependent on a particular fish stock or
wildlife population among all subsistence users. Tier II gives
priority to users based on: 1) customary dependence and 2)
availability of alternative resources.
Under the federal program, this narrowing process
is based on: 1) customary and direct dependence upon the populations
as the mainstay of livelihood, 2) local residency, and 3) availability
of alternative resources. This is sometimes called a “Section 804”
process, named for the section of ANILCA’s Title VIII that establishes
it as a means of reducing the number of eligible subsistence users.
10) WHO MAKES
SUBSISTENCE REGULATIONS?
For the State of Alaska, the Board of Game and
Board of Fisheries, whose members are appointed by Alaska's governor
and approved by the Legislature, promulgate subsistence regulations. Proposals to
change subsistence regulations may come from the Department of Fish
and Game, the Boards themselves, or members of the public. The Boards
are advised by about 80 Fish and Game Advisory Committees statewide.
Under federal management, subsistence regulations
are created by the six-member Federal Subsistence Board. The Board is
comprised of the leaders of five federal agencies in Alaska (U.S. Fish
and Wildlife Service, U.S. Forest Service, National Park Service,
Bureau of Land Management and Bureau of Indian Affairs) plus a voting
chair appointed by the U.S. Secretary of Interior.
The board receives
recommendations on regulations from 10 statewide Regional Advisory
Councils. Regional Advisory Council recommendations can be rejected by
the Board only if they are damaging to subsistence, damaging to the
resource, or not supported by evidence. Proposals to change
regulations may be made by federal staff, members of the public,
regional councils or by the Board itself.
11) WHERE ARE AREAS OF STATE AND FEDERAL JURISDICTION FOR SUBSISTENCE?
Federal public lands for the purposes of
subsistence management include 34 “conservation system units” in
Alaska. Conservation system units refer to national parks, national
forests, national wildlife refuges, national reserves, national
conservation areas, national
recreation lands and national wild and scenic rivers. They do not
include Glacier Bay National Park, Kenai Fjords National Park, most of Katmai National Park or the pre-1980 section of Denali National Park,
where prohibition of subsistence uses pre-dated ANILCA. The federal government has jurisdiction to manage subsistence
uses of wildlife, but not fish, on general public domain lands managed
by the federal Bureau of Land Management.
Federal waters means waters
within the exterior
boundaries of these federal conservation unit lands, plus small
areas of coastal or “marine” waters in western Alaska. Federal lands
and waters comprise roughly 60 percent of all lands and rivers, lakes
and streams in Alaska.
State and private lands,
areas of state subsistence jurisdiction,
include any property owned by any agency of the state government or by
private interests, including Native corporations.
State waters are waters on and running through these lands, as well as
nearly all marine waters in Alaska.
Most state and private lands in Alaska are
located in Southcentral and Interior regions, east and west of the
Railbelt. Federal public lands generally fringe the state, and
comprise a large portion of its coastal lands.
[Map of Federal Waters in Alaska]
12)
WHAT LAWS AND REGULATIONS GOVERN SUBSISTENCE USES?
Federal subsistence law regulates federal
subsistence uses; state law regulates state subsistence uses. Federal
subsistence law is based on Title VIII of the Alaska National Interest
Lands Conservation Act (ANILCA) of 1980 and regulations found in the
Code of Federal Regulations Title 36, Part 242 or Title 50, Part 100
(36CFR242.1 or 50CFR100.1). State regulations governing subsistence
are based on Title 16 of Alaska Statutes (AS 16) and Title 5 of Alaska
Administrative Code (05 AAC 99). State and federal subsistence fishing
and hunting regulations are published annually in booklet form and
available from the Alaska Department of Fish and Game and federal
Office of Subsistence Management.
13) HOW DID
SUBSISTENCE MANAGEMENT SPLIT IN TWO?
After the McDowell
decision forced the State of Alaska to drop its rural
subsistence priority, the federal government, acting on provisions
contained in Title VIII of ANILCA, was compelled to implement the rural
priority on federal public lands in Alaska. The federal
government began establishing its own subsistence program in 1990. Federal authority for managing
subsistence was extended to waters on and adjacent to federal
conservation unit lands in 1999, the result of a lawsuit
brought by Ahtna Native elder Katie John.
14) WHAT DOES
“THE FEDERAL TAKEOVER” REFER TO?
The federal “takeover” is partly misnomer, but
generally is used to describe the extension of federal authority over
subsistence management on federal public lands in 1990, and the
extension of that authority to federal waters in Alaska in 1999. The
State of Alaska retained its authority to manage other uses of fish
and wildlife on federal lands and waters, including commercial, sport,
and personal use hunts and fisheries.
15) WHY DID FEDERAL MANAGEMENT OF FISHERIES START NINE YEARS AFTER MANAGEMENT OF WILDLIFE?
Federal managers who began managing subsistence
in 1990 adopted a literal interpretation of Title VIII of ANILCA, that
federal subsistence protection applied to federal public lands in
Alaska. This interpretation was successfully challenged by Katie John
in 1995, when a federal court found Title VIII also applied to federal
waters on which the U.S. held reserved water rights. To provide time
for the State of Alaska to come into compliance with ANILCA, Alaska
Sen. Ted Stevens twice slowed extension of federal authority to such
federal waters. After several sessions of the Alaska Legislature
failed to arrive at a resolution, federal management of subsistence fisheries started
Oct. 1, 1999.
16) ARE ALL SUBSISTENCE ACTIVITIES ON FEDERAL LANDS AND WATERS
FEDERALLY MANAGED?
No. It’s important to understand that while the
federal government gained authority for managing subsistence
uses of fish and wildlife for rural residents on lands in 1990, and on
waters in 1999, most state-managed subsistence harvests on those
federal public lands and waters have continued, under state laws and
regulations, open to all Alaskans.
However, the federal
government has final authority on federal lands and waters, and that
includes authority to establish its own subsistence uses, seasons and bag
limits for rural residents. The federal government also has the
authority to close or restrict state-managed uses, such as
commercial, sport, personal use or state subsistence uses in areas of
federal jurisdiction if necessary to conserve fish and wildlife
populations or to protect the subsistence priority for rural
residents.
When this happens,
and subsistence regulations for rural residents established by the
federal government differ from the state’s regulations for its
subsistence users on federal public lands or waters, a
separate, federal permit is required, and a new federally-established
fishery or hunt is created.
When state and federal
regulations for subsistence uses in federal areas mesh, typically only
a state subsistence permit is required.
When the federal government gained authority for
managing subsistence in 1990 and 1999, it didn’t immediately draw up a
list of its own subsistence uses for rural residents. Instead, it
adopted the state’s regulations for subsistence on federal lands as
its own subsistence regulations.
17) HOW
DOES THE STATE SUBSISTENCE PRIORITY WORK?
Let’s use the example of subsistence fishing for
sockeye salmon in Chilkoot Inlet near Haines.
The fishery, a harvest
using drift gillnets on marine waters, is under state authority for
subsistence management and is managed by the state. All Alaska
residents are eligible to participate in the fishery. In 2001, sockeye
stocks on the Chilkoot were depressed, leading state managers to close
the inlet to commercial drift gillnet fishing to preserve stocks. In
addition, the sportfish daily bag limit for sockeye on Chilkoot River
and lake was reduced from six to one. Subsistence fishing, however,
was not restricted or curtailed, and all Alaska residents remained
eligible to participate.
18) HOW DOES THE FEDERAL “RURAL” SUBSISTENCE PRIORITY WORK?
Let’s start with the
example of subsistence fishing at Redoubt Lake.
Redoubt Lake is nine miles south of
Sitka. The small, outfall stream that runs from the lake into the
ocean historically has been a favorite spot for sockeye salmon
subsistence fishing. Although the lake and most of the outfall stream
are in the Tongass National Forest and within federal jurisdiction for
subsistence management, the State of Alaska until recently managed all
subsistence fishing there.
In 2001, rural subsistence fishermen in
Sitka became concerned that returns to the lake were not sufficient to
provide for their needs and to provide salmon for sport fishermen and
others taking sockeye there. At the request of subsistence users and
to enforce the rural subsistence priority, the Federal Subsistence
Board in December 2001 closed fishing on the lake and on the outfall
stream that comprise the system’s federal waters to all but federal
subsistence users.
Sport fishermen, as well as state subsistence
fishermen who are not residents of Sitka (and thus didn’t qualify for
the federal subsistence priority) were prohibited from using the
federal section of the stream. Additionally, federally qualified users
wishing to use federal sections of the stream were required to obtain
a separate, federal permit.
The State of Alaska retained authority for
managing subsistence on its small section of the stream, which
stretches from the high tide line on the outfall stream down to marine
waters. The state continued to manage its subsistence fishery there,
under its own rules, in which all Alaskans were eligible to fish.
The State of Alaska also retained authority
for managing subsistence fishing in the marine waters offshore of the
Redoubt Lake outfall, as well as authority for managing sportfishing
and commercial fishing in the outfall stream below the mean high tide
line and in marine waters.
19) CAN FEDERAL MANAGERS TAKE ACTION ON STATE LANDS AND WATERS TO
ENSURE THE RURAL PRIORITY?
Yes, but only under extreme circumstances.
Federal courts have recognized that under some circumstances the
federal government may exercise extraterritorial jurisdiction.
This means the federal government may take actions off federal lands
and waters to ensure protections on federal lands and waters. For example,
the federal government could intervene to limit salmon harvest in
state waters if such harvest caused a failure to meet subsistence
needs on federal waters.
Power of extraterritorial jurisdiction rests with
the Secretaries of Agriculture and Interior. The Federal Subsistence
Board is authorized to receive petitions for extraterritorial
jurisdiction, to review facts, and consult with the State of Alaska to
find agreeable solutions. If these efforts fail, the Board may make
recommendations to the Secretaries, who have final authority on this
question.
In the example at Redoubt Lake cited above, rural
subsistence users asked the federal government to close fishing to all
but federal subsistence users along the entire length of the outfall
stream as well as in the marine waters of Redoubt Bay. Marine waters
and stream waters to the mean high tide line are under state
jurisdiction.
The Federal Subsistence Board, in deciding on
closures to protect the rural priority, did not initiate actions to
exercise extraterritorial jurisdiction, as sought by rural residents.
Similarly, in the spring
of 2004, Yukon and Kuskokwim river subsistence fishermen concerned
that salmon returning to those rivers were being intercepted in marine
waters by commercial fishermen near False Pass petitioned the Board to
use its powers of extraterritorial jurisdiction to further restrict
the state-managed False Pass commercial fishery. The Board rejected
the request.
In fact, the federal government has invoked this power in only a handful
of cases in the past century, so its use for management of subsistence
in Alaska would be highly unusual. Any effort to exercise
extraterritorial jurisdiction would likely be challenged by the State
of Alaska.
20) HOW
DID THE STATE MANAGE SUBSISTENCE BEFORE 1990?
Prior to 1990, the State of Alaska managed nearly all uses of fish and game
on lands and waters in Alaska, including subsistence. (Migratory
species of international interest are managed under federal laws. The
federal Marine Mammal Protection Act and the Migratory Bird Act
provide for subsistence uses of those species by Alaska Natives.)
State subsistence
management evolved, and is still evolving.
The first subsistence
law passed by the Alaska Legislature in 1978
defined subsistence uses, required the state to
provide subsistence uses when a harvestable surplus was available,
established a priority for subsistence above other uses at times of
resource shortage, and created the Division of Subsistence within the
Department of Fish and Game.
Under state management, subsistence was regulated
by the Alaska Boards of Fisheries and Game, using information from
biologists at the Department of Fish and Game and from anthropologists
working for the Division of Subsistence.
To provide the rural
harvest priority required by ANILCA, the Alaska
Legislature in 1986 revised its subsistence statute, redefining
subsistence uses as customary and traditional uses “by a resident
domiciled in a rural area” of the state. The 1986 law also laid out a
process for providing subsistence that required the state to: 1)
identify rural areas, 2) identify customary and traditional uses of
fish stocks and game populations, 3) determine the portion of a
harvestable surplus needed to provide a “reasonable opportunity” to
satisfy subsistence uses, and, 4) adopt regulations to provide that
opportunity.
The state Boards of Fish
and Game began making determinations
on what communities would be recognized as “rural,” thus qualifying
for subsistence uses. The state defined a “rural area” as “a community
or area of the state in which the noncommercial, customary and
traditional use of fish or game for personal or family consumption is
a principal characteristic of the economy…”
The state identified subsistence uses as those
that were “customary and traditional.” To be designated as a
subsistence use, a use had to meet several, specific criteria. A
customary and traditional determination was comprised of three
elements including: 1) a defined species of fish or game 2) located in
a defined area and, 3) harvested by a defined group of rural
residents.
Subsistence rules were
developed under the same
regulatory process used to develop regulations for commercial, sport
and personal use fisheries. Changes in regulations could be proposed
to the boards. The state’s Fish and Game Advisory Committees would make
recommendations on such proposals, as would state biologists and
anthropologists. The proposals would be forwarded to the Board of
Fisheries for a final decision.
In 1989, when the state’s rural subsistence
priority was ruled unconstitutional by the state Supreme Court, the process of
identifying rural areas and customary and traditional subsistence uses
was still unfinished. For major subsistence hunts and fisheries,
management regulations were established, but due to time constraints,
the Board of Game in many cases simply designated general hunts as
subsistence. According to a report prepared for the state in 1996,
“there were therefore many unresolved inconsistencies between
established subsistence practices in small villages and what was legal
in regulation.”
21) WHAT
HAPPENED WHEN FEDERAL MANAGEMENT BEGAN?
In 1990, the federal government created the
Federal Subsistence Board to make subsistence decisions on federal
lands on behalf of the U.S. Secretaries of the Interior and
Agriculture. (The state continued managing virtually all subsistence
fisheries until October, 1999.) The Federal Subsistence Board was
comprised of the Alaska heads of five federal land-managing agencies:
Bureau of Indian Affairs, Bureau of Land Management, National Park
Service, U.S. Forest Service and U.S. Fish and Wildlife Service. A few
months later, a sixth voting board member, an appointee of the Secretary of
Interior, was added. This appointee serves as board chair.
In 1993, the federal government created 10
Regional Advisory Councils statewide to advise the Federal Subsistence
Board.
The Federal Subsistence
Board adopted the state’s subsistence hunting and fishing regulations as
its starting point and has been considering proposals for general or
specific changes at annual meetings ever since. Changes it
has adopted have created subsistence hunts and fisheries not
recognized in state laws, as well as seasons, bag limits and other,
specific regulations differing from state rules.
As new subsistence opportunities are created, and
as regulations provide new opportunities for federal users
participating in established subsistence harvests, a new, separate
body of federal subsistence regulations has developed for federal
lands and waters.
Federal subsistence uses that differ from uses
approved by the state typically require a separate, federal permit.
22) WHAT
HAPPENED TO THE STATE’S PROGRAM AFTER 1990?
The Alaska Supreme
Court's McDowell decision removed the
rural criteria from the state’s subsistence laws, so state subsistence
fishing and hunting were not limited to rural residents. Three years
later, in July 1992, the state Supreme Court, in Alaska v. Morry,
confirmed that all Alaskans were eligible subsistence users. Soon
after the Morry decision, the Alaska Legislature revised its subsistence law,
directing the boards of Fisheries and Game to designate
“non-subsistence areas” and to establish specific procedures for
implementing the subsistence priority.
23) WHAT ARE NON-SUBSISTENCE AREAS?
To reduce pressure on
resources in the wake of the 1992 state court decision making all
Alaskans eligible subsistence users, the boards of Fisheries and Game
designated four “non-subsistence areas,” where state subsistence
regulations would not be established: Around Fairbanks,
Anchorage-Mat-Su-Kenai, Juneau and Ketchikan. A fifth was later added
around Valdez.
These areas roughly
coincided with communities previously designated by the state as
“non-rural.” They are defined as areas “where dependence on
subsistence is not a principal characteristic of the economy, culture
and way of life.”
(The state’s non-subsistence areas do not
preclude subsistence uses under federal regulations. For example, the
Kenai River is contained in the state’s Anchorage-Mat-Su-Kenai
non-subsistence area. The upper Kenai River, however, runs through the
Kenai National Wildlife Refuge and is under federal jurisdiction for
subsistence management. Thus, it is open to subsistence fishing by federally-qualified
subsistence users (rural residents).
24) WHAT IS THE
FEDERAL DEFINITION OF RURAL?
Under federal regulations, a community with a
population of 2,500 or less is deemed rural unless it has “significant
characteristics of a non-rural nature, or is considered to be socially
and economically a part of an urbanized area.” A community with a
population exceeding 7,000 is presumed non-rural unless it has
“significant characteristics of a rural area.” Communities with
populations between 2,500 and 7,000 are determined by evaluating
community characteristics.
(Under the current
definition, Alaskans who do not qualify as rural residents include
those who live in the municipality of Anchorage, Fairbanks North Star
Borough, Valdez, Adak, Juneau area, Ketchikan area, Wasilla-Palmer
area, and areas around Seward, Kenai and Homer. About one-fifth of
Alaska's population, or 120,000 Alaskans, reside in rural communities
as defined by the Federal Subsistence Board.)
Characteristics the Federal Subsistence Board may
use in determining rural or non-rural include, but are not limited to:
1) use of fish and wildlife, 2) development and diversity of economy,
3) community infrastructure, 4) transportation, and 5) educational
institutions. Communities that are economically, socially and
communally integrated are considered together. Rural determinations
are reviewed every ten years.
In the fall of 2001, the University of Alaska’s
Institute of Social and Economic Research (ISER) began work on a
methodology for making future determinations, under a contract from
the Federal Subsistence Board. As the current method of determining
which communities are "rural" has been criticized as arbitrary and
unscientific, the aim of the project is to establish
an objective foundation for the process of making rural
determinations. The study was completed in 2003 and in early 2004
academic critiques of it were reviewed by the Board.
25)
WHAT IS THE DEFINITION OF CUSTOMARY AND TRADITIONAL?
Subsistence uses, by definition, are ones that
are “customary and traditional.” The state and federal governments
have slightly differing criteria in regulations for determining which uses are
customary and traditional and thus qualify for the subsistence
priority. Under state management, a subsistence use must meet all the
criteria to be determined customary and traditional.
The state’s criteria include:
1) a long-term consistent pattern of
noncommercial taking, use, and reliance on the fish stock or game
population that has been established over a reasonable period of
time of not less than one generation, excluding interruption by
circumstances beyond the user's control, such as unavailability of
the fish or game caused by migratory patterns;
(2) a pattern of taking or use recurring in specific seasons of each
year;
(3) a pattern of taking or use consisting of methods and means of
harvest that are characterized by efficiency and economy of effort
and cost;
(4) the area in which the noncommercial, long-term, and consistent
pattern of taking, use, and reliance upon the fish stock or game
population has been established;
(5) a means of handling, preparing, preserving, and storing fish or
game that has been traditionally used by past generations, but not
excluding recent technological advances where appropriate;
(6) a pattern of taking or use that includes the handing down of
knowledge of fishing or hunting skills, values, and lore from
generation to generation;
(7) a pattern of taking, use, and reliance where the harvest effort
or products of that harvest are distributed or shared, including
customary trade, barter, and gift-giving; and
(8) a pattern that includes taking, use, and reliance for
subsistence purposes upon a wide diversity of fish and game
resources and that provides substantial economic, cultural, social,
and nutritional elements of the subsistence way of life.
Under federal
management, a use need not meet all criteria to be determined
customary and traditional. Federal criteria include:
(1) A long-term consistent pattern of use,
excluding interruptions beyond the control of the community or area;
(2) A pattern of use recurring in specific seasons for many years;
(3) A pattern of use consisting of methods and means of harvest
which are characterized by efficiency and economy of effort and
cost, conditioned by local characteristics;
(4) The consistent harvest and use of fish or wildlife as related to
past methods and means of taking; near, or reasonably accessible
from the community or area;
(5) A means of handling, preparing, preserving, and storing fish or
wildlife which has been traditionally used by past generations,
including consideration of alteration of past practices due to
recent technological advances, where appropriate;
(6) A pattern of use which includes the handing down of knowledge of
fishing and hunting skills, values and lore from generation to
generation;
(7) A pattern of use in which the harvest is shared or distributed
within a definable community of persons; and
(8) A pattern of use which relates to reliance upon a wide diversity
of fish and wildlife resources of the area and which provides
substantial cultural, economic, social, and nutritional elements to
the community or area.
26) WHAT
IS ‘PERSONAL USE’?
Under the state’s
subsistence law, subsistence uses must meet eight criteria for being “customary
and traditional.” In the mid-1980s, the state designated some historic
fisheries and hunts that didn’t meet the required criteria as
“personal use.” These were uses that didn’t meet the subsistence
criteria, but also didn’t fit definitions of commercial or
recreational uses. “Personal use” harvests receive no priority and
sometimes are opened only at times of a non-allocated surplus of a
resource. "Personal use" harvests are open only to Alaska residents
and a resident sportfish license is required to participate. The
summer dipnet fisheries on the Copper River at Chitina and at the
mouth of the Kenai River are examples of the state's personal use
fisheries.
27) WHAT ARE THE MAJOR DIFFERENCES BETWEEN STATE AND FEDERAL
MANAGEMENT?
Generally, federal management is more
deferential to subsistence users. Since federal authority was extended
over subsistence management, subsistence hunts and fisheries have been
established that weren’t recognized by the state under state
management. In addition, federal managers have expanded opportunities
for rural subsistence users in hunts and fisheries initially established by the
state.
This difference also is
reflected in state and federal subsistence regulations. In general,
federal subsistence hunts and fisheries are open until closed
by regulations. Conversely, state subsistence hunts and fisheries are
closed until opened by regulations.
Some of these differences
between federal and state management can be explained by differing
legal mandates contained in subsistence laws passed by the Alaska
Legislature and the U. S. Congress, and by judicial interpretation of
those laws.
Federal agencies have applied ANILCA by providing
a “meaningful preference” for subsistence over other uses of fish and
wildlife. In contrast, the state’s subsistence law requires that the
boards of Fish and Game only adopt regulations that provide a "reasonable opportunity for subsistence uses.”
At times of resource shortages, federal managers
tend to be more restrictive of non-subsistence users than state
managers, at times eliminating non-subsistence uses to provide the
subsistence priority. State managers have been more likely to restrict
other uses to provide the subsistence priority.
(Judicial
interpretations of ANILCA to date have determined that the federal
subsistence priority does not require that other,
non-subsistence uses of a resource must be eliminated before
subsistence uses are restricted.)
Federal subsistence
fisheries regulations begin with broad
allowances for subsistence. For example, statewide provisions in
federal regulations for subsistence fishing allow the taking of “fish”
for subsistence uses, at any time by any method, unless restricted by
regulation. That wording contrasts with state regulations that allow
the taking of “finfish other than salmon, rainbow trout and steelhead
trout” for subsistence by any method unless restricted by regulation.
In fisheries, federal regulations allow use of
rod-and-reel as subsistence gear statewide; the state allows such gear
for subsistence only in a few areas.
Under federal
regulations, rural residents can
subsistence fish for salmon or trout on any federal waters where not
specifically prohibited, and take as subsistence, at a minimum, the
state’s sportfish limit for a species in that area. This contrasts
with the state system, under which subsistence harvest of trout and
salmon are allowed only in designated areas.
Differences in state and federal management also
can be attributed to differing management mandates. The Boards of
Fisheries and Game, which decide subsistence fish and wildlife issues,
are charged with providing for all uses of fish and game in Alaska,
including commercial, personal use and sport uses. The Federal
Subsistence Board, which provides for federal subsistence uses,
provides only for subsistence. However, Title VIII of ANILCA
establishes that federal managers can’t unnecessarily restrict other
uses.
28) WHAT
IS THE 'FULL-TIME' SUBSISTENCE PRIORITY?
Federal subsistence law
(Title VIII of ANILCA) requires that subsistence uses get preference
over other uses "when it is necessary to restrict taking to assure the
continued viability of a fish and wildlife population." As some kind
of regulations that "restrict taking" are in place for virtually all
Alaska's fish and wildlife harvests, some people describe the federal
priority as in place all the time, or "full-time." However, for most
hunting and fishing seasons around Alaska, resources are sufficient to
provide for federal subsistence and other uses, so there is no need to
restrict other uses to provide for subsistence.
29) WHAT IS FEDERAL COURT OVERSIGHT?
Federal subsistence law
(Title VIII of ANILCA) establishes the U.S.
District Court in Alaska as the judicial body that hears complaints
about implementation of federal subsistence protections. When the State
of Alaska managed subsistence on all Alaska lands and waters in the
1980s, subsistence users who believed the state wasn’t adhering to the
intent of Title VIII appealed their cases to the federal court. In
several significant cases, the federal courts ruled in favor of the
appellants, effectively overturning decisions made by the State of
Alaska.
30)
WHAT IS ‘CUSTOMARY TRADE’?
“Customary trade” is the
name given to exchanges of subsistence-harvested resources for limited
amounts of cash. Customary trade is
separate from and different than barter. (Barter is an exchange of
goods not involving cash.) Small cash exchanges of
subsistence-harvested resources are recognized in state and federal
law as a legitimate subsistence activity. The state limits customary
trade to sales of herring roe on kelp in Southeast Alaska.
Federal law allows
customary trade of fish, fish parts or eggs by rural residents.
Non-rural residents may exchange cash for fish caught by rural
residents, but only for their own consumption. Businesses are
prohibited from buying subsistence-caught fish. Additionally, the
Federal Subsistence Board defers to its regional councils to develop
customary trade regulations specific to their respective regions that
replace the statewide regulations.
As of January 2005, the
Bristol Bay region and the upper Copper River district of the
Southcentral region each had adopted customary trade regulations for
those area more restrictive than the statewide regulation.
The Bristol
Bay regulation limits cash exchanges for salmon between rural
residents to $500 per household and exchanges between rural residents
and others to $400 per household. A separate, federal permit,
including a record-keeping of cash exchanges by fishermen, is required
for exchanges to non-rural residents. The upper Copper River
regulation limits a household's annual cash exchanges to 50 percent of
its annual harvest, and limits cash exchange to non-rural residents to
$500 per year per household. In the upper Copper River, record-keeping
is required of all cash exchanges.
31) WHAT
IS ‘CO-MANAGEMENT’?
“Co-management” describes a method of managing
subsistence in which subsistence users play an active part in
determining harvest levels, closures, and bag limits and making other
management decisions. Co-management has been practiced, to an extent,
by the Alaska Eskimo Whaling Commission and the Alaska Eskimo Walrus
Commission. Some advocates liken federal management of fish and
wildlife in Alaska to co-management, for its relative deference to
subsistence users.
32) WHAT ABOUT
SUBSISTENCE HALIBUT?
Subsistence halibut fishing is managed by the National Marine
Fisheries Service and is regulated by the North Pacific Fishery
Management Council, a group comprised of state and federal officials.
The
council approved Alaska's first recognized halibut fishery, which
started May 15, 2003. The fishery's original regulations allowed
fishing by residents of 117 coastal rural
communities and members of 120 coastal Alaskan tribes. Other original
regulations allowed 30 hooks per fisherman and 20 halibut per day
harvest limit. In addition, fishermen could receive up to $400 per year in
compensation for fishing for others. Selling or soliciting to sell
subsistence halibut was prohibited. In addition, subsistence halibut
fishing was prohibited in four non-subsistence areas including much of
Cook Inlet and waters around Valdez, Juneau and Ketchikan.
Regional changes to the original statewide regulations are expected to
become law before the summer of 2005. In Southeast Alaska, these
regional changes include limiting gear to 30 hooks per vessel
and establishing a bag limit of 20 halibut per vessel. A
community harvest program will allow tribes to harvest above these
limits. Other 2005 regulation changes include prohibiting longline
fishing in a four nautical mile radius south of Low Island in Sitka
Sound and closing most of Cook Inlet to subsistence halibut fishing.
Further, the North Pacific Council has approved another set of
regulation changes expected to become effective in 2006. These
regulations include additional restrictions on customary trade of
halibut, additional gear and bag limits in Sitka Sound, new limits on
gear in the Kodiak Road Zone and Chiniak Bay, a subsistence halibut
possession limit and restrictions on use of charter boats. For more
information on these changes, see the "Halibut" page of this website,
http://www.subsistmgtinfo.org/hal.htm .
Through Feb. 1, 2005, 13,844 Alaskans had registered to participate in
the subsistence halibut fishery. About 89,000 residents are eligible.
All Alaskans
qualify to fish for
halibut under sportfishing and personal use regulations, which limit
gear to two hooks per fisherman and limit catches to two halibut per
day per fisherman. For more information about the proposal, see the halibut
page of this website.
