Federal judge rules that sport, commercial hunters should have voice in subsistence

Posted: Monday, January 26, 2004

ANCHORAGE - Sport and commercial hunters and fishermen should have a voice in the development of rules for the federal subsistence program, a federal judge has ruled.

U.S. District Judge H. Russel Holland issued his decision in a lawsuit brought in 1998 by the sport hunting group, Safari Club International.

Holland ordered federal officials to give nonsubsistence interests the opportunity to participate in the rule-making process for subsistence.

Ron Maddox, who represents the Safari Club in Alaska, said Thursday the group was happy with the ruling.

"We challenged this in 1998 because sportsmen were excluded from decisions and the process."

In his decision, Holland tossed out a rule that would have guaranteed 30 percent of the seats on regional advisory councils to sport and commercial users. The councils wield a lot of power because they recommend changes in subsistence rules to the Federal Subsistence Board.

Called the 70/30 rule, it was imposed as a remedy by the Bush administration, but the judge said it was done without proper public notice. Holland ruled that federal managers have to redo a membership rule using proper procedures.

Holland also said the composition of the councils should be governed by the Federal Advisory Committee Act, which requires a balance of competing interests.

"Subsistence users are not the only persons directly affected by regional advisory council recommendations," he wrote in his 65-page decision issued last week.

Native groups had opposed adding other interests to the councils, saying the purpose of the councils was to give a voice to rural people who understood local subsistence traditions.

The Native American Rights Fund intervened in the Safari Club case and succeeded in having the 70/30 rule thrown out on procedural grounds. But it appeared to lose the bigger battle to keep sport and commercial fishing representatives off the councils, said NARF attorney Heather Kendall-Miller.

The judge, however, did not overturn any of the subsistence hunting and fishing rules adopted since federal management began in 1990.

Federal officials said they were happy that the sportsmen's major effort to undo the program had been blocked.

Tom Boyd, assistant regional director for subsistence management with the U.S. Fish and Wildland Service, said, "The judge didn't find there was an injury, regardless of whether or not there was a problem with the program. And so the program marches on."

Safari Club attorneys had described the subsistence decision-making process as "riddled with flaws" and contended some decisions about customary practices seemed spun out of thin air, with little factual basis.

Holland dismissed those complaints, saying the group's members didn't have standing because their claims of personal harm were too vague. Part of the case was built around affidavits from sheep-hunting guides in the Brooks Range, a musk ox hunter, and several bow hunters who said moose were spooked by an early subsistence hunt.

The case by Safari Club International marked a departure from many earlier subsistence cases by explicitly pitting trophy hunters against the subsistence priority system. More often, the issue has been posed as a clash of interests between urban and rural Alaskans. The latter group can qualify for subsistence priority under federal law, but not under the state constitution.

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