[Federal Register Volume 60, Number 22 (Thursday, February 2, 1995)]
[Proposed Rules]
[Pages 6466-6467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2518]



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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 242

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 100


Petition for Rulemaking to the Secretaries of the Interior and 
Agriculture Relating to the Federal Subsistence Management Program for 
Public Lands in Alaska; Notice of Availability and Request for Comments

AGENCY: Forest Service, USDA; Fish and Wildlife Service, Interior.

ACTION: Petition for rulemaking.

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SUMMARY: The Secretary of the Interior and the Secretary of Agriculture 
(Secretaries) have received a petition submitted by the Northwest 
Arctic Regional Council and other Alaska Native groups requesting the 
Secretaries initiate rulemaking to (1) establish that they have 
authority to regulate hunting and fishing on non-public lands to 
protect the subsistence priority afforded on public lands by Title VIII 
of the Alaska National Interest Lands Conservation Act (ANILCA), and 
(2) determine that lands selected by, but not yet conveyed to, Native 
Corporations and the State of Alaska be treated as public lands subject 
to the ANILCA subsistence priority. Copies of this petition are 
available for review from the address listed below. To aid the 
Secretaries in reaching a decision on this petition, the Federal 
Subsistence Board is soliciting public comments on the issues 
presented.

DATES: Comments must be submitted on or before April 3, 1995.

ADDRESSES: Comments should be submitted to and copies of the petition 
may be obtained by contacting Richard S. Pospahala, U.S. Fish and 
Wildlife Service, 1011 E. Tudor Road, Anchorage, Alaska, 99503.

FOR FURTHER INFORMATION CONTACT: Copies of the petition may be obtained 
by contacting Richard S. Pospahala, telephone (907) 786-3447. For 
questions specific to National Forest System lands, contact Norman R. 
Howse, telephone (907) 586-8890.

SUPPLEMENTARY INFORMATION:

Background

    Title VIII of the Alaska National Interest Lands Conservation Act 
(16 U.S.C. 3111-3126) requires the Secretaries to implement a joint 
program to grant a preference to subsistence uses of fish and wildlife 
resources on public lands, unless the State of Alaska enacts and 
implements laws of general applicability that are consistent with, and 
provide for, the subsistence definition, preference, and participation 
specified in Sections 803, 804, and 805 of ANILCA. The State 
implemented a program that the Department of the Interior found to be 
consistent with ANILCA. However, in December 1989, the Alaska Supreme 
Court ruled in McDowell v. State of Alaska, 785 P.2d 1 (Alaska 1989), 
that the rural preference in the State subsistence statute violated the 
Alaska Constitution. The ruling in McDowell required the State to 
delete the rural preference from its subsistence statute, which put the 
State out of compliance with ANILCA. The Court stayed the effect of the 
decision until July 1, 1990.
    The Department of the Interior and the Department of Agriculture 
assumed responsibility for implementation of the subsistence preference 
in Title VIII of ANILCA on public lands on July 1, 1990, pursuant to 
the Temporary Subsistence Management Regulations for Public Lands in 
Alaska that were published in the Federal Register on June 29, 1990 (55 
FR 27114-27170). The Departments published Permanent Subsistence 
Management Regulations for Public Lands in Alaska on May 29, 1992 (57 
FR 22940-22964).
    The subsistence preference established in Section 804 of ANILCA 
accords priority to the taking of fish and wildlife for nonwasteful 
subsistence uses on ``public lands'' over the taking of fish and 
wildlife on public lands for other purposes. ``Public lands'' are 
defined in Section 102 of ANILCA to mean lands, waters, and interests 
therein that are situated in Alaska and to which the United States 
holds title, except for:
    (1) Land selections of the State of Alaska that have been 
tentatively approved or validly selected under the Alaska Statehood Act 
and lands that have been confirmed to, validly selected by, or granted 
to the Territory of Alaska or the State under any other provision of 
Federal Law; 

[[Page 6467]]

    (2) Land selections of a Native Corporation made under the Alaska 
Native Claims Settlement Act that have not been conveyed to a Native 
Corporation, unless any such selection is determined to be invalid or 
is relinquished; and
    (3) Lands referred to in Section 19(b) of the Alaska Native Claims 
Settlement Act.
    In promulgating the Federal subsistence regulations, the 
Secretaries took the position that (1) most navigable waters, and (2) 
lands selected by, but not conveyed to, the State and Native 
Corporations, are not subject to the Section 804 subsistence 
preference. This position was based upon a finding that these waters 
and lands are not covered by the definition of ``public lands.'' See, 
for example, 55 FR 27115 (June 29, 1990).
    The petition submitted to the Secretaries by the Northwest Arctic 
Regional Council (NARC), Stevens Village Council, Kawerik, Inc., Copper 
River Native Association, Alaska Federation of Natives, Alaska Inter-
tribal Council, RurAL CAP, and the Dinyee Corporation seeks rulemaking 
to reverse and/or clarify this position. The petition requests that:
    (1) An interpretive rule be promulgated that states that the 
Federal government has the authority to regulate hunting and fishing on 
non-public lands; and
    (2) An interpretive rule be promulgated that places selected but 
not conveyed lands within the purview of the subsistence priority.
    The petitioners rely for their first assertion upon law established 
in the contiguous 48 states that establishes Federal authority to 
regulate activities on non-Federal lands to protect activities on 
Federal lands. The petitioners cite case law that finds two sources for 
this authority: The Property Clause of the Constitution and Federal law 
preemption of state law. Petitioners find support for their second 
point in the legislative history of and management provisions in 
ANILCA, and place particular reliance on section 906(o)(2) of ANILCA. 
The petitioners also examine the definitions of ``public lands'' and 
``federal lands'' in light of the land management provisions.
    The Federal Subsistence Board requests public review and comment in 
order to enable the Secretaries better to assess the impacts and 
concerns of the petition and to assist them in reaching a decision on 
its disposition.

Drafting Information

    This notice was drafted under the guidance of Richard S. Pospahala, 
U.S. Fish and Wildlife Service, Alaska Regional Office, Office of 
Subsistence Management, Anchorage, Alaska. The primary author was 
William Knauer of the same office.

    Dated: January 20, 1995.
David B. Allen,
Acting Chair, Federal Subsistence Board.
[FR Doc. 95-2518 Filed 2-1-95; 8:45 am]
BILLING CODE 3410-11-P; 4310-55-P