Alaska officials are suing the federal government to protect a majority of hunters from a minority of hunters in the state with the whackiest public lands issues in the country.
The minority convinced a unique entity called the Federal Subsistence Board to create a handful of quasi-private hunting reserves for state residents who meet the standard for “federally qualified subsistence users.”
Welcome to Alaska where America’s rural-urban divide feeds on steroids.
Federally qualified users are, according to the Department of the Interior, those people who live in “any community or area of Alaska determined by the Federal Subsistence Board to qualify as (rural).”
No objective standards have ever been established for which communities do and don’t qualify.
The community of Saxman, a suburb about two miles from the Southeast Alaska city of Ketchikan, is federally designated rural community. The community of Sutton, a suburb about 14 miles from the city of Palmer in Southcentral Alaska, is not.
Both Ketchikan – population 8,050 – and Palmer – population 5,937 – would be considered rural in most of America, but they are considered urban in Alaska even though the former city has no road connection to the rest of the continent.
The only way in or out of Ketchikan is by boat or airplane, but the Federal Subsistence Board judged it non-rural to make city residents ineligible for a “subsistence priority” for hunting and fishing.
Long, contentious history
The subsistence priority dates back to the Alaska National Interests Lands Conservation Act (ANILCA) of 1980, which created more than 100 million acres of new national parks, preserves and wildlife refuges in the 49th state.
The law included a priority intended to give rural residents the first crack at fish and wildlife when harvestable numbers are in short supply. Many rural residents still live close to the land and depend significantly on those resources for protein.
Who should qualify for the priority and how it should be applied has been the subject of debate in Alaska ever since ANILCA became law four decades back, but the Federal Subsistence Board took the issue to new heights when it this year decided the priority should apply not just to the harvest of animals but to the hunting experience itself.
Rural residents chasing caribou in the remote Nelchina Basin some 100 to 300 road miles from the state’s largest city were having to put up with the intrusion of what they thought were too many hunters flocking north from the Anchorage Metropolitan Area home to more than half the state’s population.
The Board’s decision was popular in a large and largely uninhabited wilderness of tens of millions of acres sprawling along the south slope of the Alaska Range in what the Alaska Department of Fish and Game classifies as Game Management Unit 13 (GMU 13).
In a country increasingly split along rural and urban lines, such a decision would likely be just as popular in good parts of the rural backcountry of most Western states. But federal bureaucrats lack the legal authority to impose such a rule in the lower 48 states.
Alaska, however, is different except when it isn’t.
The state’s lawsuit against Secretary of the Interior David Bernhardt and a host of other federal officials contends the decision to lock urban Alaska subsistence hunters out of federal lands in GMU 13 was not only illegal under the law, but involved some hanky panky,
The lawsuit doesn’t name the players involved, but suggests there were backroom negotiations before the feds made the decision to lock out state-qualified subsistence hunters to satisfy the demands of federally qualified subsistence hunters.
If the situation here isn’t already complicated enough for the average non-hunter to understand, it only gets more so in that there are two classes of hunters in Alaska who look and act much the same but are defined differently based on where they live.
All Alaskans qualify for the state subsistence priority in GMU 13, but in order to be granted it they must agree they will not hunt big game anywhere else in the state for the year.
“Subsistence” in Alaska is basically defined as hunting for food. The Federal Subsistence Board doesn’t manage for hunting or food, however; it manages for rural subsistence as part of Alaska’s unique and complicated state and federal scheme to limit hunting opportunities.
Non-resident hunters are the first to go if the wildlife supply is judged short of the wildlife demand. Resident hunters are the next to be restricted either by a limitation on the number of resident hunting permits or – as in GMU 13 – a restriction that forces hunters to choose their meat hunting options.
Everyone agrees the state regulation forcing state-qualified subsistence hunters to chose between hunting exclusively in GMU 13 or hunting anywhere else in the state reduced the number of hunters to the point there were enough caribou to meet the demands of all hunters.
As the state’s lawsuit noted, the animals in the “Nelchina caribou in Unit 13 are above population and harvest objectives established by the state” while moose numbers are at the objectives.
The Federal Subsistence Board in July of last year accepted that reality and voted down a proposal to close federal lands to non-federal hunters. That decision was summarized this way in a document prepared for the Board’s July 2020 meeting, according to court records:
“The Board determined the requested closure was not warranted for
conservation, continuation of subsistence uses, or safety reasons. The
Board concluded that the closure was not necessary for the
conservation of healthy caribou or moose populations in Unit 13, as
these populations are routinely monitored and annual biological data
is used to inform management plans and to establish sustainable
harvest guidelines. The closure was also not shown to be necessary to
continue subsistence uses of those populations.
“Federally qualified subsistence users annual harvest rates have remained fairly consistent in comparison to the annual harvest rates by non-Federally qualified users. Nevertheless, local harvesters do experience an influx of non-local hunters and many feel displaced by this activity and alter their subsistence activities as a result. In addition, the closure would not
alleviate public safety concerns as non-Federally qualified users
would still be able to cross Federal public lands to access State and
Change of opinion
What happened to change that decision this July is unclear.
“Immediately prior to the scheduled meeting held by the Federal Subsistence Board on July 16, 2020,” the state’s lawsuit says, “the Federal Subsistence Board met in an unannounced executive session, delaying the start of the scheduled meeting.”
Executive sessions are closed to the public. By law, they are to be announced and the topic or topics of discussion identified. The topics that qualify for executive decisions are generally limited to litigation and personnel matters.
What was discussed in this particular executive session is unknown, but the state’s lawsuit says that what followed was a July 31 news release from Interior intended to answer “frequently asked questions” about closures of federal lands to non-rural hunters in GMU 13.
The news release revealed for the first time that the Board had on July 16 adopted a proposal “to close the federal public lands that are open to federal subsistence hunting in Units 13A and 13B to moose and caribou hunting by non-federally qualified users for the 2020-2021 and 2021-2022 (hunting) seasons.”
As justification for the action, the news release said, “an individual submitted (a) special action request asking the Board to close federal public lands in Unit 13 to the hunting of moose and caribou by non-federally qualified users….The Board approved a closure in Units 13A and 13B only…due to necessity for reasons of public safety and continuation of subsistence uses.”
The only public safety issue that has been mentioned in the past has involved hunters from Glennallen – primarily federally qualified hunters – using the Richardson Highway corridor north of that community as a firing range.
Most of the 80 miles of lowland terrain along the highway between Glennallen and the largely abandoned community of Paxson to the north is forested. The highway right-of-way and that of the trans-Alaska oil pipeline which in places parallels the highway are among the best places to spot and get a shot at caribou migrating east in the fall toward wintering grounds near the Canadian border.
The lands along the highway are now closed to state-qualified subsistence hunters as are lands along several backcountry access corridors that cross the alpine tundra in the foothills of the Alaska Range off the Denali Highway. But federal officials said they cannot stop state hunters from using the trails in those corridors.
Anyone can “still travel through, camp, and hunt/trap for other species on federal public lands within the closure area,” the news release said. “The closure area also remains open to all other activities such as hiking, boating, wildlife viewing, etc.”
On some level, the issue is a big fight about nothing. The state owns most of the land in the area GMU 13 and some BLM lands, for reasons unclear, remain open to state-qualified subsistence hunters.
And there is nothing to stop the state from closing its lands – including the Richardson Highway corridor – to federally-qualified subsistence hunters in the interest of the safety of state-qualified hunters and motorists. Not to mention to make a point.
But then the Nelchina caribou hunt isn’t the only thing tied up in the state suit. Nelchina is simply the flashpoint for disagreement in a state where “federal overreach” on land-use issues has become a four-letter word.
The lawsuit argues the feds appear to be using ANILCA to take over management of wildlife, a state prerogative, in the 49th state. The Supreme Court of the United States in 1896 upheld the general state authority to manage wildlife.
An exception was later made for wildlife in national parks, but the National Park Service in May agreed that even there its authority applies only to parks and not the “preserves” also under its management.
A dispute between the Park Service and the state over the management of bears and wolves – the Park Service didn’t like the way the state was allowing them to be killed – ended with the federal agency conceding to “the state of Alaska’s role in wildlife management on Alaska national preserves, consistent with the Alaska National Interest Lands Conservation Act (ANILCA) and Department of the Interior (DOI) policies guiding the federal-state relationship in the management of fish and wildlife,” a Park Service media release said.
But that agreement came as the COVID-19 pandemic was just starting the change the landscape of everything, and the state contends the feds have been using the pandemic to leverage wildlife management take over.
In April, the suit says, the Federal Subsistence Board granted federal land managers the authority to open temporary hunting fishing seasons without any sort of public review.
That action, the suit contends, was “in violation of the federal Open Meetings Act; no announcement of the meeting was made and no members of the public were given an opportunity to be present and observe actions
by the members.”
Interior defended the action as a response to COVID-19, arguing that “hunting and fishing would only be opened ‘in response to any demonstrated COVID-19-related emergency situation relating to food security that rises to the level of constituting a threat to public safety,'” the suit says.
No guidelines were established for how that determination was to be made. No public hearings were held. The state’s view was not solicited.
In the wake of the decision, “the Organized Village of Kake, a federally recognized tribal government (in Southeast), submitted a request to the Federal Subsistence Board to open a hunt, for tribal members only, allowing harvest of five male deer and two bull moose per month for 60-days,” the suit says.
“The agency field manager for the U.S. Forest Service near Kake sent a
letter to the Federal Subsistence Board dated June 12, 2020 stating he contacted Mark Roberts, Alaska SEOC Operations Section Chief for the Unified Command Mass Care Group (“Mass Care”), who confirmed there was no food security or supply chain disruption in Kake associated with COVID-19.”
Ten days later, the suit says, the Board held a meeting “to address (the proposal) and allowed testimony from only one individual: Joel Jackson, President of the Organized Village of Kake.”
Jackson said there was no food emergency in Kake – a coastal village with access to a wide range of marine resources for protein – but added that the residents prefer moose and deer over store-bought meat.
Public lands, the new reservations?
The Board then approved a 30-day hunt for the tribe. The Board has since been considering similar requests from other tribes, although the Alaska Native Settlement Act of 1971 settled Native land claims in the state with an agreement to pay nearly $1 billion to 13 newly established regional Native corporations and award them and hundreds of village corporations title to 44 million acres of land.
The settlement was heralded at the time as an attempt to blend the descendants of Alaska’s earlier inhabitants into the fabric of the 49th state and do away with reservations and the reservation-related problems that have plagued Natives in other states.
The Native corporations have been in most ways successful, sometimes very successful. But rural Natives living far from any job opportunities have not always fared so well.
The difficulties of life in rural areas was why the subsistence provision was written into ANILCA, but the subsistence priority was extended to “rural residents” rather than “Alaska Natives” in an effort to avoid splitting rural communities along racial lines.
The Federal Subsistence Board, however, has now put tribes in charge of some hunts.
“Congress did not authorize the Federal Subsistence Board to delegate
administration of a federal subsistence hunt to a tribe or nonprofit organization, to delegate the authority to determine who is authorized to hunt to a tribe or nonprofit organization, or to limit a hunt to a tribe or nonprofit organization,” the state suit says. “Any delegation outside of the federal agency without express authorization by Congress is improper.”
In Alaska, when it comes to social divides, even the divides have divides.