(ATTACHMENT II) -28 ƏLƏSKƏ federation of natives, Inc. 411. W. 4th Avenue, Suite 1A • Anchorage, Alaska 99501 Phone 907-274-3611 February 24, 1982 ESKIMO F William P. Horn Deputy Under Secretary U.S. DEPARTMENT OF THE INTERIOR 18th & C Streets, N.W. Washington, D. C. 20240 Dear Mr. Horn: On January 27, 1982, I wrote Secretary Watt to express concern In 1978 the Alaska legislature enacted ch. 151 SLA 1978 which established a state subsistence priority consistent with the section 804 priority (assuming that the "subsistence uses" which are the subject of the state priority are the same uses which are the subject of the section 804 priority). Last December the Alaska Board of Fisheries and Board of Game by regulation established a regional council system which may satisfy the requirements of section 805. However, as of the date of this letter the state has not enacted (either by statute or regulation) a definition of "subsistence uses" which is consistent with the section 803 definition. And it is the latter deficiency in the state subsistence management program about which my letter of January 27th expressed the most serious concern. The section 803 definition limits the purview of the term -29 William P. Horn Page two because the definition considered by the Congress during the 95th Congress was ambiguous with respect to whether a resident of one of Alaska's large urban centers would be entitled to a priority over his urban neighbors. As noted by the Senate Committee on Energy and Natural Resources: Although many residents of cities such Senate Report No. 96-413, 96th Cong. Unfortunately, the definition of "subsistence uses" enacted by the Alaska legislature does not on its face limit the "application of the definition to areas of 'rural' Alaska" as the Energy Committee, and later the Congress itself, intended. This defect in the state definition has resulted not only in considerable confusion among the Alaska public, but also in inconsistent implementation of the state subsistence priority. For example, the Board of Fisheries has attempted to limit the identification of "subsistence use" salmon fisheries in Cook Inlet so as to inconvenience the sport and commercial fisheries as little as possible. It has at least partially achieved this goal by adopting a regulation interpreting the phase "customary and traditional". The application of this regulation to the Cook Inlet fishery has resulted in the identification of "subsistence use" fisheries only in the three rural villages surrounding the Inlet. The Board of Game, however, has consistently refused to accept the Board of Fisheries interpretation of "customary and traditional" which as explained above has the effect of limiting the application of the "subsistence uses" definition to areas of rural Alaska. According to the Board of Game the state definition of "subsistence uses" encompasses urban hunters as William P. Horn February 24, 1982 Page three -30 well as rural hunters. As a result, the regulatory scheme which it adopted to allocate access to the Nelchina caribou herd does not adequately provide for subsistence hunting by rural residents. On December 8, 1981, the boards attempted to alleviate the confusion by adopting a joint policy on subsistence (Resolution # 81-1-JB). Although in many respects it is an excellent first step, the policy does not satisfy the requirements of section 805(d) for two reasons. First, it was not adopted pursuant to the Administrative Procedure Act, and, consequently, is not a "law of general applicability". And second, the policy was crafted by the boards to be purposely ambiguous with respect to the question of whether a "subsistence use" (and by implication the state subsistence priority) is limited solely to "rural Alaska residents" as the Congress intended. The situation was further convoluted on February 11, 1982, when you met with Commissioner Skoog in Washington, D. C. to discuss the state's compliance with section 805(d). No representative of either the Solicitor's Office or the Alaska Department of Law familiar with the technical aspects of the subsistence issue was in attendance at the meeting. Nevertheless, it is my understanding that the State of Alaska suggested, and the Secretary's office may now be prepared to accept, a theory as to why the state is now in compliance with section 805(d) which the Solicitor's Office reviewed and rejected months ago. For lack of a better description this line of reasoning has been named the "Two-Tier Theory". According to the theory, the Secretary may excuse the overly broad purview of the state's "subsistence uses" definition because when the state implements its subsistence priority it allegedly gives first consideration to rural residents. The most obvious (and fatal) defect in this theory is that it disregards the Secretary's obligation to certify that the State of Alaska has enacted a "law of general applicability" which provides for the same definition of "subsistence uses" as that set forth in section 803. Either the state has a definition which is consistent with section 803 or it does not. Whether the state has adequately implemented the definition (and the priority of which it is a part) is a separate issue. The second (equally obvious) defect is that if accepted it would result in urban residents being included within the purview of the state subsistence priority. And if that is the case, then -31 William P. Horn February 24, 1982 Page four the state subsistence priority is not consistent with section 804, and, consequently, the state subsistence management program does not satisfy the requirements of section 805(d). The sophistry implicit in the eleventh hour revival of the Two-Tier Theory (and the damage which implementation of the theory can do to the state regulatory system) is best illustrated by the application of the theory to the Cook Inlet salmon fishery. If both urban and rural fishermen are included within the purview of the "subsistence uses" definition, and, consequently, must be afforded a priority over the sport and commercial fisheries, then the personal use net fisheries on the east side of the Inlet which have not been identified by the Board of Fisheries as "subsistence use" fisheries must be afforded a priority over sport and commercial fisheries which harvest the same stocks. Such a result will negate two years of work by the board to strike a reasonable balance between the personal use, sport, and commercial fisheries on the east side of the Inlet. On March 1, 1982, the Alaska Board of Fisheries and Board of Game will meet in Juneau to consider what further action must be taken to conform the state subsistence management program to the requirements of section 805(d). Representatives of the Department of the Interior are scheduled to make a presentation at that meeting. For all of the reasons outlined above, I would hope that they do not indicate to the boards that adoption of regulations based on the Two-Tier Theory will bring the state subsistence program into compliance with ANILCA. Rather, I would request that the boards be informed that compliance may be achieved by amending Resolution # 81-1-JB to limit the purview of the state definition of "subsistence uses" to rural Alaska residents, and then instructing Commissioner Skoog to promulgate the amended resolution as a regulation. xc: Sincerely, Frank Arguson Governor Jay Hammond Senator Henry Jackson Congressman Morris Udall Frank Ferguson DRAFT -32 RESOLUTION 81-1-JB WITH SUBSECTION (b) JOINT BOARDS OF FISHERIES AND GAME In applying a subsistence priority the Boards will provide for conservation and development of Alaska's fish and game resources pursuant to the following procedures: (a) Each Board will assess the biological status of fish or game resources and determine whether a surplus may be harvested during a regulatory year consistent with the conservation and development of the resources on the sustained yield principle and compatible with the public interest; (b) Each Board will identify subsistence uses of fish (1) a long-term-consistent pattern of use (excluding interruption (2) a use pattern recurring in specific seasons of each year; (4) the consistent harvest and use of fish or game which is near (5) the means of handling, preparing, preserving, and storing (6) a use pattern which includes the handing down of knowledge of |