Home AHTNA PREFERENCE FOR NELCHINA CARIBOU RULED UNCONSTITUTIONAL

AHTNA PREFERENCE FOR NELCHINA CARIBOU RULED UNCONSTITUTIONAL
By Mike Kramer, Attorney for AOC

On July 9, 2010, Judge Carl Bauman ruled that the Board of Game could not provide guaranteed tags for Nelchina caribou to AHTNA villagers. In 2009, with the advice and consent of Alaska’s Attorney General, the Board of Game authorized sweeping changes to how moose and caribou hunts were managed in Unit 13, the Nelchina Basin. These changes were designed to provide eight AHTNA Indian villages with what the Board had identified as its goal of “virtually guaranteeing” a caribou permit every year to AHTNA village residents.

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The AHTNA Community Harvest Permit (CHP) hunt was proposed by AHTNA in 2009. Dozens of AHTNA villagers were brought to Anchorage to lobby the Board for a preference over all other users of Nelchina caribou.
The Board of Game had struggled with allocation issues involving Nelchina caribou and moose for decades because the thousands of Alaskans who desire to hunt these animals exceed the harvestable surplus. The Board unanimously approved “findings” in 2006 that lead to the 2009 CHP.

According to Judge Bauman: “The theme throughout the Board’s Findings in 2006 is that the customary and traditional subsistence uses established and practiced by local AHTNA community members are in line with a traditional subsistence way of life, but the practices of urban-based subsistence users and subsistence users from other rural areas are not.”

The subsistence law in Alaska has been shaped by decades of court decisions and minor legislative tinkering. The fundamentals of the law can be summarized as follows:

1. All Alaskans enjoy equal access to our commonly owned fish and game resources, except when demand exceeds harvestable surplus. When this occurs (Tier II) access may be restricted to those most dependent on the resource based on individual characteristics and historic participation in the harvest.

2. Community harvest permits (CHP) may be authorized when a distinct community is willing to pool their available permits for a communal harvest and distribution (i.e. “party hunting”).

3. All Alaskans must be on equal footing for participation in Tier I hunts.

AOC’s sister organization, the Alaska Fish & Wildlife Conservation Fund (AFWCF), does not have the resources to challenge every regulation passed by the Board of Game that illegally provides preferences to certain classes of Alaskans while discriminating against all others. It had no choice but to challenge this blatantly discriminatory CHP. As a former AOC and AFWCF Board member and life member of AOC, I was honored to be asked to be AFWCF’s attorney to fight this important battle to preserve what is left of our Constitutional right to equal access to our commonly owned fish and game resources.

The Alaska Attorney General is sworn to uphold the laws and Constitution of the State of Alaska. At the 2009 Board meeting, an Assistant Attorney General met with AHTNA representatives and ADF&G employees to strategize on how to implement the AHTNA CHP.

Before the AHTNA CHP could be authorized, the Board had to reclassify Nelchina caribou as a Tier I hunt, rather than the Tier II hunt it had been for more than a decade. The judge found that the Board did not give the public adequate notice that such a drastic change might occur, and therefore held that the Board violated the Administrative Procedures Act. In addition to violating the Administrative Procedures Act, the Court found that the Board’s decision to change the Unit 13 caribou hunt from a Tier II to a Tier I hunt “was arbitrary and unreasonable because it was not supported by evidence in the Administrative record.”

The State Attorney General defended the AHTNA CHP in court by arguing that only AHTNA villagers were “true subsistence users.” The Attorney General disparaged all other Alaskans who have customarily and traditionally hunted Nelchina caribou when he described urban Alaskan hunters as follows:
“these hunts, in which relatively well-off long-time Anchorage, Mat-Su Valley, Fairbanks, and other non-local residents are privileged to be the vast majority of participants, have become epitomized in the public mind by the utilization of large, luxurious recreational vehicles as base camps or “motherships” for daytime forays by multiple high-tech four-wheeler operators…whether one agrees with the use of these methods or not, such hunts cannot or should not be viewed as subsistence hunts…”

Judge Bauman’s decision overturning the Board’s special allocation of our commonly owned resources to a narrowly defined group of Alaskans is an undisputed victory for AFWCF. Until policy makers in Juneau question whether the ADF&G Division of Subsistence, the Boards of Fish & Game, and especially the Attorney General’s office who advises them, are protecting our fundamental rights, these entities will continue to pander to interest groups seeking discriminatory preferences to harvest our fish and game. There will be no Tier I hunt this year for moose or caribou in Unit 13 unless the Attorney General appeals the decision and asks Judge Bauman to allow the CHP for 2010 while the appeal takes its course. We need to let our elected officials know that it is unacceptable to conduct an illegal hunt for another year, and unacceptable to continue to legitimize an illegitimate hunt.

Thank you AOC and AFWCF for the honor of helping secure this important legal victory, a victory that will help preserve what is left of our way of life.

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