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(7) a use pattern in which the hunting or fishing effort or the
products of that effort are distributed or shared among
others within a definable "community" of persons, including
customary trade, barter, sharing, and gift-giving. Customary
trade may include limited exchanges for cash, but does not
include significant commercial enterprises. A "community"
for purposes of subsistence uses may include specific villages
or towns, with a historical preponderance of subsistence
users and in addition encompasses individuals, families, or
groups who in fact meet the criteria described in this policy;

(8) a use pattern which includes reliance for subsistence purposes
upon a wide diversity of the fish and game resources of an
area, and in which that pattern of subsistence use provides
Substantial economic, cultural, social, and nutritional elements
of the subsistence user's life.

After identifying subsistence uses based upon these criteria, each Board will determine the approximate amount of fish or game necessary to provide fully for opportunities to engage in these customary and traditional

uses..

(c) Each Board will adopt regulations that provide an opportunity for the subsistence taking of fish or game resources in amounts sufficient to provide for the customary and traditional uses identified in paragraph (b) and consistent with sound conservation and management practices. In no instance may such taking jeopardize or interfere with the maintenance, on a sustained yield basis, of a specific fish stock or game population.

(d) These regulations may also provide an opportunity for nonsubsistence uses of the resource, to the extent that such uses do not jeopardize or interfere with the conservation and development of fish or game resources, on a sustained yield basis, or with the opportunity for taking these resources for customary and traditional subsistence uses as provided in (c) above.

(e) When circumstances such as increased numbers of users, weather, predation, or loss of habitat may jeopardize the sustained yield of a fish stock or game population, each Board will exercise all practical . options for restricting non-subsistence harvest before subsistence uses · are restricted. If all available restrictions for non-subsistence uses have been implemented and further restrictions are needed, each Board will reduce the take for subsistence uses in a series of graduated steps, by giving maximum protection to subsistence users who (1) live closest to the resource, (2) have the fewest available alternative resources, and (3) have the greatest customary and direct dependence upon the resource. In no event, however, will a Board allow uses which will jeopardize or interfere with the conservation and management of fish stocks or game populations on a sustained yield basis.

(ATTACHMENT III)

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LASKA PEDERAZION

of natives, Inc.

ESKIMO

411 W. 4th Avenue, Suite 1A Anchorage, Alaska 99501 • Phone 907-274-3611 INDIANALEUR

For the past sixteen months the Alaska Federation of Natives (AFN) has monitored the State of Alaska's effort to develop a subsistence management program which satisfies the requirements of section 805 (d) of the Alaska National Interest Lands Conservation Act (ANILCA). On January 27, 1982, and February 24, 1982, I by letter expressed AFN's concerns to both you and Secretary Watt about the State's progress in this regard.

On April 6, 1982, the Alaska Board of Fisheries and Board of Game met in joint session and adopted a regulation (tentatively codified as 5 A.A.C. 99.010) which has the effect of limiting the purview of the definition of the term "subsistence uses" in A.S. 16.05.940(26) to "rural Alaska residents". Assuming arguendo that a "regulation" is a "law of general applicability" as that term is used in section 805(d) of AÑILCA (an as yet unresolved legal question of not inconsiderable importance), the April 6, 1982, regulation may have satisfied the State's responsibility to enact laws of general applicability which are consistent with, and which provide for, the definition of "subsistence uses" set forth in section 803 of ANILCA. That regulation combined with the priority for subsistence uses set forth in A.S. 16.05.251(b) and A.S. 16.05.255 (b) and the regulations establishing the regional council system adopted in 1981 may fulfill the totality of the State's responsibilities under section 805 (d) for the enactment of laws of general applicability.

Mr. William P. Horn

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Page two

April 19, 1982

An exception may be a definition of the term "rural" (tentatively codified as 5 A.A.C. 99.020) which may prove more restrictive in application than the term "rural" in section 803. However, it is my understanding that the boards adopted this regulation as an interim measure and that reconsideration of its content and effect (accompanied by an opportunity for public review and comment) has been scheduled by the boards for their joint meeting in the fall.

However, the enactment of laws of general applicability is not the sole standard against which the State's subsistence management program must be judged. Before Secretary Watt can certify that the State program is in compliance with section 805(d) he must also determine that the State has "implemented" the laws of general applicability it has enacted.

In that regard, I have considerable concern about the State's implementation of its local advisory committee and regional council system. As you know, section 805 (b) requires the State (if its regional councils are to supercede councils which Secretary Watt must establish if the State program is not in compliance with section 805(d)) to assign adequate staff, and timely distribute all relevent technical and support data to the regional councils. Section 805 also requires the State to assign appropriate staff, adequately fund, and distribute available support data to its local fish and game advisory committees. See Senate Report No. 96-413, 96th Cong., 1st Sess. 270-271.

Enclosed please find copies of correspondence which indicate that to date the State has not furnished the level of support to either the local advisory committees or the regional councils required by section 805.

In particular, please note the memorandum from the Executive Director of the Alaska Board of Fisheries and Board of Game recommending that the regional councils not be assigned their own staff (it is my understanding that as of the date of this letter no staff has been assigned to the regional councils). According to the Executive Director assigning staff to the various divisions within the Alaska Department of Fish and Game (ADF&G) (so that staff will work for, and owe its alligiance to, ADF&G's Divisions rather than the Councils) will "mitigate" the tendency which he

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Mr. William P. Horn
Page three

April 19, 1982

perceives for the Councils to play a "subsistence advocate"
role. The Executive Director also recommends inter alia
that the councils be informed that their participation
in the State regulatory process is "strictly advisory",
even though the regulations adopted by the boards estab-
lishing the regional council system indicate clearly
that it is not. Needless to say, the Executive Director's
lack of enthusiasm for the regulatory system he is
responsible for administering is somewhat disconcerting
since section 805 and its legislative history clearly
indicate that the Congress intended the regional council
system to perform precisely the function, i.e. to provide
an authentic and meaningful opportunity for rural residents
engaged in subsistence uses to participate in the regulatory
process, that the Executive Director suggests be discouraged.

The other documents are copies of correspondence from the chairmen of the Lower Yukon Fish and Game Advisory Committee and the Lower Kuskokwim Fish and Game Advisory Committee (both members of the regional council representing their area) and from representatives of the Association of Village Council Presidents (AVCP represents the residents of the Yukon/Kuskokwim Delta) expressing concern about the level of staff support and funding ADF&G has provided to the local committees and regional councils within the AVCP region.

The State has made considerable progress in developing a subsistence management program which conforms to the requirements of section 805 and in achieving the goal of ensuring that subsistence uses by the residents of rural Alaska, and the fish stocks and game populations upon which they depend, are adequately protected. If adequate staff is assigned to the Councils (rather than to ADF&G divisions) if the local committees and regional councils are adequately funded so that rural residents are provided a fair opportunity to participate in the regulatory process, and if ADF&G, the Boards, and their staff disseminate truthful information on an ongoing basis so that the local committees and regional councils are provided a reasonable opportunity to fulfill their respective roles within the regulatory structure, I am confident that the State's program will be a success.

Consequently, as part of its supplemental submission to Secretary Watt for certification of its subsistence

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1

Mr. William P. Horn
Page four

April 19, 1982

management program under section 805 (d) of ANILCA, I would
hope that you would request an explanation from the State
as to why the regional councils have not yet been assigned
adequate staff, when such staff will be assigned to the
councils (rather than to ADF&G), and a detailed description
of the funds which have been expended in support of the local
committees and regional councils to date.

XC: Honorable Jay Hammond

Governor of the State of Alaska

Senator Ted Stevens

Senator Frank Murkowski

Senator James McClure

Senator Henry Jackson

Congressman Morris Udall

Congressman Don Young

Mr. Martin Ivan, President,

Association of Village Council Presidents