Small ruling could spark big subsistence fight

Posted: Monday, September 08, 2003

ANCHORAGE (AP) A minor flaw in state hunting regulations could lead to a major upheaval in the ongoing dispute over subsistence.

In late July, Superior Court Judge Sen Tan ruled that one of five questions posed to applicants for state Tier II subsistence permits is unconstitutional because it takes residence into account.

The Murkowski administration has appealed the ruling and, if it loses, will ask the state Supreme Court to overturn two landmark subsistence cases.

Attorney General Gregg Renkes said the Supreme Court appeal is part of a broad new initiative that aims to regain state control over subsistence management.

Federal law allows only rural residents to participate in subsistence activities while the state constitution guarantees equal access to fish and game by all Alaskans.

The issue of residency raised in a 2000 court case by Girdwood resident Kenneth Manning, goes to the heart of the debate over subsistence.

The Alaska Supreme Court delivered its ''equal access'' ruling in the landmark 1989 McDowell decision. In the Kenaitze decision in 1995, the court ruled again against a rural priority.

Because of this legal conflict, the federal government took over subsistence management of hunting on the two-thirds of the state in federal hands in 1990. It has managed subsistence fishing since 1999.

When there is too little fish and game to go around on state lands, a so-called ''Tier II'' application is used with a points system to determine who has the greatest dependence on subsistence fish and game.

Representing himself in court, Manning argued the state scoring system is unconstitutional since urban residents can't earn enough points to win a Nelchina caribou permit. Tan ruled that one part of the system violates the equal protection statute.

Renkes said the Tier II questions are the best ways to ensure a local subsistence preference. People who live closest to the resource should have a higher priority than other Alaskans, he said.

''If users are traveling long distances, past other game herds, they're probably not engaged in subsistence use,'' he said.

In the upcoming legislative session, the administration will seek to revise state subsistence law to focus ''on the use, not the user,'' Renkes said.

This is similar to the effort proposed by former Gov. Walter J. Hickel.

Native American Rights Fund attorney Heather Kendall Miller called the state's appeal a ''major long shot.''

Even if the court overturns the McDowell decision, it would take years of additional legislation and court action to return state management of subsistence, Kendall Miller said.

And then the state would face resistance from many rural residents, she said.

''My clients have become very comfortable with federal management'' and the protections it offers beyond state management, such as the ability to sell small amounts of subsistence-caught fish, Kendall Miller said. ''They don't want (state management) unless it is in compliance with current federal law.''

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