Conflicts between livestock and wildlife: an analysis of legal liabilities arising from reindeer and caribou competition on the Seward Peninsula of western Alaska.

• Author: Bader, Harry R.

1. INTRODUCTION

   On Alaska's Seward Peninsula, a unique social and environmental experiment is unfolding. The federal government, State of Alaska, and tribal entities are cooperating in an attempt to bridge the gap between Euro-centric economics and Native peoples' cultural ties to the natural landscape. Here, where North America bisects the Bering Strait, nearly reaching Siberia, 29,000 reindeer graze, owned by Native American herders on 55 million acres of unfenced federal, state, and private lands. The hope is to maintain a reliable source of revenue for a remote and impoverished region in a manner that avoids environmental degradation and respects local cultural traditions. This Article discusses the legal consequences and the potential for litigation that can erupt when successful state wildlife management enables an indigenous, wild caribou herd to expand its numbers and range, thus colonizing new areas and competing on the tundra with introduced domestic reindeer.

   Part II of this Article is a brief introduction to Alaskan reindeer and caribou management. Part III describes recent scientific field research, conducted by the University of Alaska-Fairbanks College of Natural Resources Development and Management, addressing the effect of caribou and reindeer competition posed by expanding caribou populations. Part IV investigates potential legal liabilities and duties associated with reindeer and caribou competition on the Seward Peninsula among federal, state, and tribal sovereigns. Part V concludes by asserting that litigation is ill-suited to address the needs of these competing interests.

2. REINDEER AND CARIBOU MANAGEMENT IN ALASKA

   Reindeer are the domesticated brethren of wild caribou. While both are taxonomically the same species, Rangifer tarandus, and can therefore freely interbreed, husbandry has brought about a few significant morphological and behavioral differences between reindeer and caribou.(1) Reindeer tend towards shorter stature and lighter pelage than caribou.(2) Reindeer also birth their calves three to six weeks earlier than caribou, and reindeer bulls develop longer antler stems than their caribou counterparts.(3) While caribou are a wildlife species native to North America, reindeer are exotic animals introduced primarily from Russian stock.(4)

   1. Reindeer Management

      Reindeer herding invokes almost every conceivable natural resource issue that defines Alaska: wilderness, national park and wildlife refuge protection, Native rights and self-determination, governmental paternalism, economic development initiatives, state wildlife management, and federal preemption of state law. All of these issues are superimposed upon the vastness of the Seward Peninsula, a remarkable land with a remarkable history. Bounded by Kotzebue Sound to the north, Norton Sound to the south, and the Bering Strait to the west, this tundra-clad country formed the land bridge between Asia and North America ten millennia ago.(5) Within this vast wilderness of moose, wolves, grizzly bear, salmon, musk ox, wolverine, fox, resident raven, and migratory birds reside 6000 people.(6) Approximately 4000 live in Nome, the city of gold rush and Iditarod fame.(7) The rest live in small, scattered villages. Half of Nome residents and almost all village residents are Alaskan Natives of Inupiat or Yupik ancestry.(8)

      By federal law, Alaskan Natives (Inupiat, Yupik, Indian, and Aleut) enjoy preferential treatment in the reindeer industry.(9) This preferential treatment is designed to protect Native herders from highly capitalized non-Native competitors.(10) Statutory provisions erect considerable barriers to non-Native entry into the industry. Native preferences include free grazing privileges on federal lands, grants from the United States Bureau of Indian Affairs (BIA), and restrictions upon sales of live reindeer to non-Native herders.(11) The purpose of these subsidies is to stabilize the economic milieu and foster growth of a dependable source of cash, employment, and food in rural villages; however, the measures have enjoyed only mixed SUCCESS.(12)

      Today, reindeer herding is the most significant component of Alaska's livestock industry. With 29,000 animals, there are more reindeer in Alaska than the total number of cattle, swine, and sheep combined.(13) Reindeer products--chiefly velvet antler and meat--represent a yearly production value of $1.2 million.(14) Meat is sold both in Alaska and throughout the United States as a low-fat alternative to beef.(15) Velvet antler is sold to Korean antler buyers, who either resell it to processors, or process the antler themselves.(16) The dried, sliced, and packaged product retails in the United States and throughout the world.(17)

      Seward Peninsula and nearby island ranges create the heart of the state's reindeer industry.(18) There are thirteen separate ranges on the peninsula; each range consists of one million acres or more.(19) These ranges are unfenced, with geographic barriers, such as mountains, rivers, bays, and lakes, forming natural boundaries that differentiate ranges.(20) Particular Alaskan Native families own herds within these ranges, although herds are closely associated with specific villages.(21)

      The United States Bureau of Land Management (BLM) retains primary management authority over grazing and is responsible for issuing permits to herd owners.(22) The National Park Service (NPS), United States Fish and Wildlife Service (FWS), and the Alaska Department of Natural Resources exercise concurrent jurisdiction on lands owned by the respective agencies.(23) The Alaska National Interest Lands Conservation Act (ANILCA)(24) recognizes reindeer grazing as an objective of federal land management on the peninsula, stating that management of the Bering Land Bridge National Preserve is to provide "continu[ing] reindeer grazing use ... in accordance with sound range management practices."(25)

      The herders have formed a collective organization called the Reindeer Herders Association (RHA), which is funded by the BIA and administered through Kawerak, a Native American organization established to assist the native people of the region.(26) BIA assistance also comes in the form of loan animals. The agency makes available federally-owned reindeer to individuals to establish new herds or augment small ones.(27) In addition to BIA support, the University of Alaska-Fairbanks College of Natural Resources Development and Management maintains a state-funded applied science research program designed to study tundra ecology, range management, and animal husbandry and physiology relevant to reindeer production.(28)

      For the most part, reindeer herds are free ranging--left alone to wander and forage on the tundra without direct control.(29) Herds are rounded up and corralled only twice a year. In June, roundup activities include clipping velvet antler as a renewable crop, which also assists in distinguishing the reindeer from migrating caribou.(30) Antler harvests leave the animals alive without any long term health implications. During the June roundup herders also inoculate for brucellosis, take blood samples to determine animal health, measure fawn weights, ear tag for individual identification, fit radio tracking collars for monitoring grazing patterns, and castrate bulls.(31) Winter roundup activity in January and February chiefly involves slaughtering animals for meat production, as well as separating mingled herds and obtaining additional population counts.(32)

      Roundups are expensive and time consuming, in part due to the remoteness of the region. Only three roads penetrate the peninsula, providing access to only two of the thirteen ranges.(33) The remaining reindeer can be reached only by aircraft, boat, snow machine, or some other all terrain vehicle.(34) Summer herding of the animals is usually accomplished by small helicopter.(35) Fixed-wing aircraft assist as spotters to help locate herds.(36) Helicopter time is the most expensive element of handling reindeer.

      Men from the village most closely associated with the particular range provide the labor for the roundups.(37) Seasonal employment from handling reindeer can provide an important cash infusion into local village economies.(38) Often, a festival-type environment accompanies the roundup activity.(39) Many villagers travel to the corral to participate, watch, and enjoy the spectacle made by thousands of animals.(40)

      Herd owners do not derive the majority of their income from reindeer herding.(41) However, the industry plays a major role in some villages, achieving, at least partially, the program's initial goals. Reindeer were first located on the Seward Peninsula a century ago because of the favorable conditions of a high quality range and an absence of significant numbers of resident caribou.(42) Today, the caribou have arrived.

   2. Caribou Management

      The Alaska Department of Fish and Game successfully manages the twenty-five distinct caribou herds that grace the state. One such herd, the Western Arctic Caribou Herd, now numbers almost 465,000 animals, comprising one of the largest wild caribou herds in the world.(43) Reasons for its growth, from less than 75,000 animals in the 1970s, are not entirely understood.(44) This herd migrates over 400 miles yearly between its calving grounds on the arctic coastal plain, west of the Colville River, to its winter foraging grounds, found primarily in the region between the Selawik, Koyukuk, and Unalakleet rivers.(45)

      State management objectives for the Western Arctic Caribou Herd include maintaining a post calving population of at least 200,000 animals to provide subsistence and recreational hunting opportunities on a sustained yield basis, protecting components of the natural ecosystem upon which the herd depends, perpetuating wild carnivore populations that utilize the caribou herd, and maintaining opportunities to view and engage in the scientific study of the herd.(46) To...