Subsistence Management Today

Subsistence Management Today

Within Alaska’s dual management regime, the Federal Subsistence Management Program (FSMP) manages the subsistence activities of rural Alaskan residents, both Native and non-Native, on 230 million acres of federal public lands and waters.16 Under Title VIII of ANILCA, section 803 defines subsistence as “the customary and traditional uses by rural Alaska residents of wild renewable resources for direct personal or family consumption.17 Section 804 specifies that “the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes”.18 Federal subsistence regulations apply only to federally qualified subsistence users (i.e. full-time residents of rural areas) harvesting federally administered species on federal public lands. “Customary and Traditional Use Determinations” may further restrict the harvest of specific species to residents of particular rural communities.19

The Federal Subsistence Board is the decisionmaking body that oversees the FSMP. It issues final decisions on regulatory proposals affecting the harvest of fish and wildlife on federal public lands in Alaska. The Board is made up of the regional directors of the U.S. Fish and Wildlife Service (USFWS), National Park Service (NPS), Bureau of Land Management (BLM), Bureau of Indian Affairs (BIA), and USDA Forest Service (USFS). Since 2012, the Secretaries of the Interior and Agriculture also appoint three public members (one of whom serves as Board Chair). The FSMP divides Alaska into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council (RAC) composed of residents with local subsistence knowledge and

16 U.S. Fish and Wildlife Service, Office of Subsistence Management. Overview Of The Federal Subsistence Management Program,2017. https://www.doi.gov/sites/doi.gov/files/uploads/federal_su bsistence_management_program_june2017_0.pdf. 17 Lord, Kenneth. Title VIII Of The Alaska National Interest Lands Conservation Act: An Overview Of The Statute That Created The Federal Subsistence Management Program. U.S. Department of the Interior, Office of the Regional Solicitor, 2021. https://www.doi.gov/sites/doi.gov/files/uploads/Title%20 VIII%20overview%20--%20presentation%202016.pdf. 18 Ibid. experience. The Interior region served by Doyon and the Tanana Chiefs Conference is roughly contiguous with the areas covered by the Eastern Interior Alaska and Western Interior Alaska RACs. RACs have the authority to: review and develop regulatory proposals; hold public meetings and encourage local participation; submit an annual report to the Board; and make policy recommendations to the Board. The Office of Subsistence Management (OSM), a branch of USFWS, provides administrative support and technical expertise to the Board and RACs.

The FSMP rule-making process operates on an annual cycle and begins when a call for proposals is issued by the Federal Subsistence Board.20 The proposal submission window for changes to wildlife regulations opens in January of odd numbered, and in January of even numbered years for changes to fishing regulations. RACs hold public meetings to develop proposals for their region, though individuals or groups may also submit proposals. Proposed changes to federal subsistence regulations might include season dates, harvest limits, methods and means of harvest, and customary and traditional use determinations. After the call for proposals is closed in March, OSM staff review and validate proposals to ensure they fall within the authority of the Board. Valid proposals are then made available to the public for written comment and oral testimony, and are also analyzed by senior staff from USFWS, NPS, BLM, BIA, and USFS, with input from state authorities.

The Federal Subsistence Board may also conduct tribal government-to-government consultations with impacted tribes and ANCSA corporations.21 The Board’s policy is to engage in government-togovernment consultation with federally recognized

19 U.S. Fish and Wildlife Service, Office of Subsistence Management. Overview Of The Federal Subsistence Management Program,2017. https://www.doi.gov/sites/doi.gov/files/uploads/federal_su bsistence_management_program_june2017_0.pdf. 20 "Federal Subsistence Management Program Regulatory Process." U.S. Department Of The Interior, Office Of Subsistence Management, 2021. https://www.doi.gov/subsistence/process. 21 "Federal Subsistence Tribal Consultation." U.S. Department Of The Interior, Office Of Subsistence Management, 2021. https://www.doi.gov/subsistence/tribal.

tribes in instances where “regulations, rulemaking, policy, guidance, legislative proposal, grant funding formula changes, or operational activity may have a substantial effect on an Indian Tribe in Alaska.”22 Consultation meetings are typically closed to the public and only elected or appointed Tribal leaders may participate in consultations with Board members and appropriate federal agency staff.23 The Board also maintains a separate but related policy on consultation with ANCSA corporations “when those corporate lands, water areas, or their resources may be affected by regulations enacted by the Board.”24 The Federal Subsistence Board, tribal governments, and ANCSA corporations may initiate consultation proceedings at any time. Consultation results are shared with the relevant RACs to inform their recommendations, and tribal communities are also encouraged by the Board to attend RAC meetings to discuss proposals and influence RAC recommendations.

RACs meet from August-November to review federal/state agency, public, tribal, and/or ANCSA corporation feedback on proposals for their region and develop recommendations to the Board. Using RAC recommendations, OSM analyses, and federal/state agency, public, tribal, and ANCSA corporation comments, The Board convenes in January for fisheries proposals and April for wildlife proposals to issue final decisions on proposed changes to federal subsistence regulations. By statute, the Board must defer to RAC recommendations on regulatory proposals unless they: a) are not supported by substantial evidence; b) violate recognized principles of fish and wildlife conservation; or c) would be detrimental to the satisfaction of subsistence

22 U.S. Department of the Interior, Federal Subsistence Board. Federal Subsistence Board Government-To-Government Tribal Consultation Policy, 2012. https://www.doi.gov/sites/doi.gov/files/uploads/final_fsb_ tribal_consultation_policy_2012.pdf. 23 U.S. Department of the Interior, Federal Subsistence Board. Implementation Guidelines for the Federal Subsistence Board Government-To-Government Tribal Consultation Policy, 2020. https://www.doi.gov/sites/doi.gov/files/uploads/tribalconsultation-implementation-guidelines-revised-2020-0804.pdf. 24 U.S. Department of the Interior, Federal Subsistence Board. Federal Subsistence Board Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corporations, 2015. needs.25 Approved proposals are published in the Code of Federal Regulations and a booklet containing the new regulations is distributed to the public.

On non-federal public and private lands, including ANCSA corporation land and Native allotments, the State of Alaska retains jurisdiction over subsistence regulations. Alaska Statute 16.05.940[32] defines subsistence as “the noncommercial, customary and traditional uses of wild, renewable resources… for direct personal or family consumption.”26 Given the 1989 McDowell v. State decision, subsistence users as specified by the Alaska Department of Fish and Game (ADF&G) encompass all Alaska residents with 12 consecutive months of residency, including both Alaska Natives and non-Natives and both rural and urban residents. 27

Decision-making authority within Alaska’s fisheries and game regulatory process is split between the Board of Fisheries and the Board of Game, with support from ADF&G. The Boards have the authority to adopt regulations governing the use and allocation of fish and wildlife resources on state and private lands in Alaska. The Boards also issue specific allocation levels for fish stocks and game populations required to satisfy subsistence and customary and traditional uses. Each Board is composed of seven members appointed by the governor and confirmed by the legislature to three-year terms. No seats on either Board are reserved for subsistence users or Alaska Natives. The Joint Board of Fisheries and Game has authorized the formation of 84 communitybased Advisory Committees throughout Alaska for “the purpose of providing a local forum for

https://www.doi.gov/sites/doi.gov/files/uploads/adopted_ policy_on_consultation_ancsa_1-23-15.pdf. 25 "Federal Subsistence Management Program Regulatory Process." U.S. Department Of The Interior, Office Of Subsistence Management, 2021. https://www.doi.gov/subsistence/process. 26 "Alaska Statutes Title 16. Fish And Game § 16.05.940." www.findlaw.com, 2021. https://codes.findlaw.com/ak/title-16fish-and-game/ak-st-sect-16-05-940.html. 27 "Alaska Subsistence Frequently Asked Questions." Alaska Department Of Fish And Game, 2021. http://www.adfg.alaska.gov/index.cfm?adfg=subsistence.faq

s.

the collection and expression of opinions and recommendations on matters related to the management of fish and wildlife resources.”28 Each Advisory Committee is composed of up to 15 elected members with local fish and wildlife expertise. Advisory Committees are grouped by geographic area into six regions, with each region staffed by a Regional Coordinator. The service area of Doyon and the Tanana Chiefs Conference is roughly contiguous with the Interior Region, which includes 16 Advisory Committees. The Boards Support Section within ADF&G provides administrative support and technical expertise to the Boards of Fisheries and Game and local Advisory Committees. ADF&G is charged with implementing regulatory changes and managing Alaska’s state fisheries, game units, and other wildlife areas.

The state rule-making processes for fisheries and game regulations operate on staggered three-year cycles, with proposed changes to regulations considered for each region once every three years.2930 The timing of the BOF and BOG proposal processes differs, but each begins when a call for proposals is issued by the Boards. The call for proposals details region-specific topics under consideration for change and the deadline for submissions. The Boards may also consider proposals for other topics (including other regions) that are not part of the current cycle if an Agenda Change Request is submitted. Proposals may be submitted to the BOF and BOG by local Advisory Committees, ADF&G staff, and the public. Advisory Committees typically hold public meetings while the call for proposals is open in order to discuss local wildlife and fisheries issues and develop regulatory proposals for submission. After the submission period is closed, a proposal book is published by the ADF&G Boards Support Section and distributed statewide for comment. Members of the public, local Advisory

28 "Advisory Committees by Region." Alaska Department Of Fish And Game, 2021. https://www.adfg.alaska.gov/index.cfm?adfg=process.acregi on. 29 "Board of Game Forms." Alaska Department Of Fish And Game, 2021. https://www.adfg.alaska.gov/index.cfm?adfg=gameboard.for ms#proposal-process 30 "Board of Fisheries Forms." Alaska Department Of Fish And Game, 2021. Committees, and ADF&G staff are invited to review and provide written comments on regulatory proposals during this period. Written comments are accepted by the BOF and BOG until two weeks prior to the Board meeting during which the topic will be considered. After this deadline has passed, written comments with stricter page limits are welcomed until the deliberation of proposals at a Board meeting begins.

The Alaska Department of Fish and Game and the Boards of Fisheries and Game maintain a policy of government-to-government relations with federally recognized tribes on “matters of mutual concern.”31 ADF&G policy holds that agency staff and the Boards are to engage in government-to-government consultation with federally recognized tribes regarding “potential regulatory actions that may have an effect on the tribe's access to or use of fish, wildlife, or habitat.”32 Consultation meetings are held between ADF&G staff, Board members, and tribal leaders with decision-making authority. Any ADF&G staff member or Board member with decisionmaking authority over a proposed action, as well as any tribal government representative, may initiate consultation proceedings at any time.

The BOF holds between 4-6 regulatory meetings each year and the BOG holds 2 regulatory meetings each year. Board meetings are open to the public and are generally held in the region which proposals under consideration pertain to. During Board meetings, the Boards hear oral testimonies from the public and reports from ADF&G staff. Final decisions on regulatory changes are issued by the Boards and proposals which carry a majority vote are given legal review by the Department of Law and sent to the Lieutenant Governor for filing before taking effect. Approved regulations are published

https://www.adfg.alaska.gov/index.cfm?adfg=fisheriesboard. forms. 31 Alaska Department of Fish and Game, Alaska Boards of Fisheries and Game. Policy on Government-to-Government Relations With the Federally Recognized Tribes of Alaska, 2002. https://www.adfg.alaska.gov/static/regulations/regprocess/ gameboard/pdfs/findings/02136bog.pdf. 32 Ibid.

annually in the hunting, trapping, and fishing regulations booklets produced and distributed by ADF&G.

Under Alaska’s dual federal-state subsistence management governance model, about 44 million pounds of wild foods, about half of which is salmon and other fish, are harvested for subsistence uses each year. This amounts to an average of 375 pounds per subsistence user.33 No doubt central to the lives of Alaska Natives and many non-native subsistence users, these figures nonetheless pale in comparison to the commercial harvest of fish and wildlife in Alaska. For instance, of the estimated 3.3 billion pounds of fish and wildlife harvested in Alaska in 2012, commercial actors produced 98% while subsistence fisheries and hunts accounted for just 1%.34

Figure 3. This map depicts land ownership in Alaska, and the outlined area is the Interior Region served by TCC. Federally managed lands make up about 60% of Alaska, and state managed lands make up the remaining 40% of the state. You can easily imagine passing back-and-forth from tribally owned lands, to state public lands, to federal public lands in the course of a moose hunt for example. Source: Alaska Department of Natural Resources, Division of Forestry.

33 U.S. Department Of The Interior, Office Of Subsistence Management. The Federal Subsistence Management Program: An Overview, 2016. https://www.doi.gov/sites/doi.gov/files/uploads/subsistenc e_management_program_brochure_2016_weblayout_508_re duced.pdf. 34 Fall, James A. "Regional Patterns Of Fish And Wildlife Harvests In Contemporary Alaska." ARCTIC 69, no. 1 (2016): 47-64. https://www.jstor.org/stable/43871398.