New Rule Adds 25 Tongass National Forest Submerged Lands Under Federal Subsistence Management
By MARY KAUFFMAN
May 29, 2018
The U.S. District Court for Alaska, in its October 17, 2011 order in Peratrovich et al. v. United States and the State of Alaska, enjoined the United States “to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) with respect to submerged public lands within Tongass National Forest” and directed entry of judgment.
The Court stated previously in a May 2011 order that the petition process was not sufficient and found that “concerns about costs and management problems simply cannot trump the congressional policy that the subsistence lifestyle of rural Alaskans be preserved as to public lands.” The Court acknowledged in its order that inventorying all these lands could be an expensive undertaking, but that it is a burden “necessitated by the `complicated regulatory scheme' which has resulted from the inability of the State of Alaska to implement Title VIII of ANILCA.”
To comply with the order, the Federal Subsistence Board was directed to initiate a regulatory proceeding to identify those submerged lands within the Tongass National Forest that did not pass to the State of Alaska at statehood and, therefore, remain Federal public lands subject to the subsistence provisions of ANILCA.
Following the U.S. District Court's decision, the Bureau of Land Management (BLM) and USDA-FS started a time- and resource-consuming review of hundreds of potential pre-statehood (January 3, 1959) withdrawals in the marine waters of the Tongass National Forest. Both agencies reviewed their records to identify dock sites, log transfer sites, and other areas that may not have passed to the State at statehood. The review process is ongoing and expected to take quite some time.
The Peratrovich case dates back to 1992 and has a long and involved procedural history. The plaintiffs in that litigation raised the question of which marine waters in the Tongass National Forest, if any, are subject to the jurisdiction of the Federal Subsistence Management Program. In its May 31, 2011, order, the U.S. District Court for Alaska stated that “it is the duty of the Secretaries [Agriculture & Interior] to identify any submerged lands (and the marine waters overlying them) within the Tongass National Forest to which the United States holds title.” It also stated that, if such title exists, it “creates an interest in [the overlying] waters sufficient to make those marine waters public lands for purposes of [the subsistence provisions] of ANILCA.”
Most of the marine waters within the Tongass National Forest were not initially identified in the regulations as public lands subject to the subsistence priority based upon a determination that the submerged lands were State lands, and later through reliance upon a disclaimer of interest filed by the United States in Alaska v. United States, No. 128 Orig., 546 U.S. 413 (2006). In that case, the State of Alaska had sought to quiet title to all lands underlying marine waters in southeast Alaska, which includes most of the Tongass National Forest. Ultimately, the United States disclaimed ownership to most of the submerged lands in the Tongass National Forest. The Supreme Court accepted the disclaimer by the United States to title to the marine waters within the Tongass National Forest, excepting from that disclaimer several classes of submerged public lands that generally involve small tracts. Alaska v. United States, 546 U.S. at 415.
When the United States took over the subsistence program in Alaska in 1990, the Departments of the Interior and Agriculture stated in response to comments on the scope of the program when announcing the interim regulations that “the United States generally does not hold title to navigable waters and thus navigable waters generally are not included within the definition of public lands” (55 FR 27115; June 29, 1990).
That position was changed in 1999 when the subsistence priority was extended to waters subject to a Federal reserved water right following the Katie John litigation. The Board identified certain submerged marine lands that did not pass to the State and, therefore, where the subsistence priority applied. However, the Board did not attempt to identify each and every small parcel of submerged public lands and thereby marine water possibly subject to the Federal Subsistence Management Program because of the potentially overwhelming administrative burden. Instead the Board invited the public to petition to have submerged marine lands included. Over the years, several small areas of submerged marine lands in the Tongass National Forest have been identified as public lands subject to the subsistence priority.
In April and October of 2015, the Bureau of Land Management submitted initial lists of submerged public lands to the Board. The May 23, 2018 final rule now adds those submerged parcels to the subsistence regulations to ensure compliance with the Court order.
The Southeast Alaska Regional Advisory Council had no objections to these lands coming under Federal subsistence jurisdiction. According to the federal register, they did comment that they felt they could not offer constructive discussion or provide a valuable recommendation; they addressed the desire for maps to be produced on each of these parcels, asked if the lands were aids to navigation, were the lands fully or partially submerged, and if there was a Federal interest in these lands. Responses will have to be researched since it was not provided in the listings provided by BLM. The North Slope and Yukon-Kuskokwim Regional Advisory Councils deferred to the Southeast Council. The Northwest Arctic Regional Advisory Council approved as written in the proposed rule. The Kodiak, Southcentral Alaska, Eastern Interior Alaska, Seward Peninsula, and Bristol Bay Regional Advisory Councils had no comments and took no action.
The Departments of Agriculture and the Interior published a proposed rule on June 8, 2016. The proposed rule opened a comment period, which closed on August 8, 2016, and also announced public meetings to be held in several different locations throughout the state between September 28 and November 2, 2016.
The Federal Subsistence Board decided in a May 25, 2017 teleconference, which was open to the public, to recommend to the Secretaries of the Departments of Interior and Agriculture that the lands listed in a proposed rule of June 8, 2016 ( 81 FR 36836 ) be included in the Subsistence Management Regulations for Public Lands in Alaska for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act.
According to the US Department of Interior, tribal consultation was offered statewide and no tribal entity requested specific consultation and no comments were offered through correspondence, during public hearings, or during consultations on different issues.
The Federal government’s involvement in the management of subsistence harvests is a historically recent event. The Federal Subsistence Management Program is responsible for management of harvest and use by rural Alaskan residents of land mammals taken on Federal public lands and harvest and use of fish taken from waters within and adjacent to Federal public lands.
To be able to harvest fish and wildlife under Federal subsistence regulations, you must have lived in Alaska for the previous 12 months and your primary, permanent residence must be in an Alaska rural area. Subsistence activity on National Park Service lands is restricted to local residents in national monuments and parks open to subsistence. Customary and traditional use determinations may further limit eligibility to certain rural users.
May 23, 2018 final rule adds these submerged parcels to the subsistence regulations to ensure compliance with the Court order:
Southeastern Alaska (Detailed location descriptions are available in Federal Register - May 23, 2018, click here PDF:
Tongass National Forest:
This rule becomes effective on June 22, 2018.
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