[Federal Register Volume 77, Number 109 (Wednesday, June 6, 2012)]
[Notices]
[Pages 33391-33392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13673]



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DEPARTMENT OF AGRICULTURE

Forest Service

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R7-SM-2012-N044; FXFR13350700640L6-123-FF07J00000]


Subsistence Management Program for Public Lands in Alaska

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

ACTION: Notice.

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SUMMARY: The Departments, in compliance with the determinations of the 
District Court in Peratrovich v. United States, No. 3:92-cv-00734-HRH 
(D. Alaska), announce the initiation of reviews of pre-statehood 
withdrawals and reservations in the Tongass National Forest. These 
reviews, as ordered by the United States District Court for the 
District of Alaska, will be used in regulatory proceedings for the 
purpose of implementing Title VIII of the Alaska National Interest 
Lands Conservation Act with respect to submerged public lands within 
the Tongass National Forest.

FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o 
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of 
Subsistence Management; (907) 786-3888 or [email protected]. For 
questions specific to National Forest System lands, contact Steve 
Kessler, Regional Subsistence Program Leader, USDA, Forest Service, 
Alaska Region; (907) 743-9461 or [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Under Title VIII of the Alaska National Interest Lands Conservation 
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and 
the Secretary of Agriculture (Secretaries) jointly implement the 
Federal Subsistence Management Program. This Program provides a 
priority for taking of fish and wildlife resources for subsistence uses 
on Federal public lands and waters in Alaska. The Secretaries published 
temporary regulations to implement this Program in the Federal Register 
on June 29, 1990 (55 FR 27114), and final regulations in the Federal 
Register on May 29, 1992 (57 FR 22940). The Secretaries have amended 
these regulations a number of times. Because this Program is a joint 
effort between Interior and Agriculture, these regulations are located 
in two titles of the Code of Federal Regulations (CFR): Title 36, 
``Parks, Forests, and Public Property,'' and Title 50, ``Wildlife and 
Fisheries,'' at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The 
regulations contain the following subparts: Subpart A, General 
Provisions; Subpart B, Program Structure; Subpart C, Board 
Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Litigation

    In Peratrovich v. United States, No. 3:92-cv-00734-HRH (D. Alaska), 
the plaintiffs challenged, in part, the failure to include as public 
lands, subject to the priority under Title VIII of ANILCA (16 U.S.C. 
3113-3126), certain marine waters in the Tongass National Forest. In 
its May 31, 2011, order, the Court partially held in favor of the 
plaintiffs. The Court 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.'' Because, 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.''
    In the regulations, the Secretaries excluded the marine waters 
within the Tongass National Forest as public lands subject to the 
subsistence priority since marine waters within the exterior boundaries 
of a National Forest are not subject to reserved water rights. 
Subsequently, the United States also disclaimed interest in the marine 
submerged lands within the exterior boundaries of the Tongass National 
Forest in Alaska v. United States, No. 128 Orig., 546 U.S. 413 (2006).
    In that case, the State of Alaska sought to quiet title to lands 
underlying marine waters within the boundaries of the Tongass National 
Forest and elsewhere within southeastern Alaska. In the course of that 
litigation, the United States disclaimed ownership to submerged lands 
in the Tongass National Forest, with some exceptions that generally 
involve small tracts, Alaska v. United States, 546 U.S. at 415. The 
Supreme Court accepted the disclaimer.
    When the United States assumed control over the subsistence program 
in Alaska in 1990, the Secretaries responded to comments on the scope 
of the program during promulgation of the interim regulations, 
published in the Federal Register on June 29, 1990 (55 FR 27114). The 
Secretaries stated 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.'' That position was 
changed in 1999 when the subsistence priority was extended to waters 
subject to a Federal reserved water right in the Katie John litigation. 
Alaska v. Babbitt, 72 F. 3d 698 (9th Cir. 1995). Later the Secretaries 
identified certain submerged marine lands that did not pass to the 
State where the subsistence priority applied. The regulations 
recognized that additional marine waters might subsequently be 
determined to be public lands. Over the years, small areas of submerged 
marine lands in the Tongass National Forest have been identified as 
public lands subject to the subsistence priority (71 FR 49997, August 
24, 2006, as amended by 74 FR 34696, July 17, 2009).
    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.''
    In its October 17, 2011, order, the court ``enjoined'' the United 
States ``to promptly initiate regulatory proceedings for the purpose of 
implementing the subsistence provisions in Title VIII of ANILCA with 
respect to submerged public lands within Tongass National Forest'' and 
directed entry of judgment.

Purpose of Notice

    To comply with the order, the Federal Subsistence Board is 
proceeding to identify for the Secretaries those submerged lands within 
the Tongass National Forest that did not pass to the State at statehood 
and that are subject to Title VIII of ANILCA.
    The Bureau of Land Management (BLM) has commenced the review of 
pre-statehood (January 3, 1959) withdrawals of submerged lands in the 
marine waters of the Tongass National Forest following the Court's May 
31, 2011, order that preceded the final October 17, 2011, order. The 
BLM review process is proceeding. In addition to BLM, the U.S. Forest 
Service has started its review of records to identify lands filled in, 
built up, or otherwise reclaimed by the United States for its own use 
prior to Alaska statehood, and other areas that may not have passed to 
the State at statehood.
    This notice announces to the public, including rural Alaska 
residents and federally recognized Tribes of Alaska, the initiation of 
reviews of pre-statehood withdrawals in the Tongass National Forest. 
When final, these

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reviews will be used in regulatory proceedings, either by the 
Secretaries, or the Board, for the purpose of implementing Title VIII 
of ANILCA with respect to submerged public lands within the Tongass 
National Forest, as ordered by the U.S. District Court for Alaska.

    Dated: May 11, 2012.
Peter J. Probasco,
Assistant Regional Director, U.S. Fish and Wildlife Service, Acting 
Chair, Federal Subsistence Board.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 2012-13673 Filed 6-5-12; 8:45 am]
BILLING CODE 3410-11-P-4310-55-P