Regulators deny legality of limited spring subsistence hunts

Posted: Sunday, April 13, 2003

ANCHORAGE (AP) -- New federal subsistence hunting rules that legalize traditional spring waterfowl hunts violate the Alaska Constitution, according to state game officials.

Alaska Department of Fish and Game officials surprised many hunters this week by saying the new federal rules violate the state constitution, which mandates equal access to wildlife for all Alaskans. That means Western Alaskans can hunt legally on federal lands, but not on state land, private land or navigable rivers.

As much as 90 percent of the birds taken in areas such as the Yukon-Kuskowkim Delta are taken on nonfederal land, federal officials said.

State game wardens say they will not arrest hunters on state land except for the most egregious violations.

However, some hunters are disturbed by the announcement. The new conflict in subsistence regulations exacerbates the urban-rural divide, several rural residents said, and creates another set of confusing regulations between state and federal lands, according to managers.

''I'm just disappointed that after all the work a whole bunch of us put into moving this matter forward, it seems like we've run into a philosophical conflict,'' said Ralph Andersen, vice chairman of the newly created Alaska Migratory Bird Co-management Council.

Mike Rearden, who manages the Yukon Delta National Wildlife Refuge, said that the state's announcement came as a surprise but that he's grown used to parallel state and federal management.

Alaska Natives traditionally hunt migratory birds and gather their eggs during the spring, which in Western and Northern Alaska occurs in April, May and June. But because of international treaties signed decades ago to protect birds in the Lower 48, the spring and summer subsistence hunts in Alaska have technically been illegal.

The issue came to a head in 1961 when 138 Barrow residents, in an act of civil disobedience, asked to be arrested for killing ducks out of season. After that, state and federal enforcement agents grew lenient about the subsistence hunts. They called it ''discretionary enforcement.''

Because the hunts were technically still illegal, however, an effort began in the early 1990s to legitimize them. After years of negotiations that required treaty amendments with four countries, Congress in 1997 paved the way for a new subsistence hunt in Alaska.

It also created the Alaska Migratory Bird Co-management Council, which advises the Department of the Interior on bird-hunting regulations much like flyway councils do in the Lower 48.

The council has proposed rules for hunting and egg-gathering in Western and Arctic Alaska but the hunts are open only to residents of those areas. According to Tom Rothe, waterfowl coordinator for the Alaska Department of Fish and Game, that's unconstitutional.

''To this day, the state supports a legal spring and summer (bird) hunt,'' and it applauds the idea of legitimizing the traditional subsistence harvest, Rothe said. But two Alaska Supreme Court decisions, McDowell in 1989 and Kenaitze in 1995, have made it clear that the Alaska Constitution doesn't allow discrimination based on residency or proximity to resources, he said.

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