"traditional" Resource Uses and Activities: Articulating Values and Examining Conflicts in Alaska

• Citation: Vol. 19
• Publication year: 2002

§ 19 Alaska L. Rev. 167. "TRADITIONAL" RESOURCE USES AND ACTIVITIES: ARTICULATING VALUES AND EXAMINING CONFLICTS IN ALASKA

Alaska Law Review
Volume 19
Cited: 19 Alaska L. Rev. 167

"TRADITIONAL" RESOURCE USES AND ACTIVITIES: ARTICULATING VALUES AND EXAMINING CONFLICTS IN ALASKA

Jennifer L. Tomsen

I. INTRODUCTION

II. COMPETING VALUES INVOKED BY TRADITION: ALASKA STATE SNOWMOBILE ASSOCIATION V. BABBITT

III. "TRADITION" IN ALASKA

A. Tradition in Federal Laws Affecting Alaska: ANILCA and the Marine Mammal Protection Act ("MMPA")

B. Tradition in Alaska State Law

IV. A MULTIPLICITY OF "TRADITIONAL" VALUES IN ALASKAN RESOURCE LAW

A. Tradition Defined by Distance In and Continuity Over Time

B. Traditional Activities as Small in Scale

C. Tradition as Associated with Culture and Community

V. WHO WILL INTERPRET TRADITION IN ALASKA?

VI. CONCLUSION

FOOTNOTES

This Note examines the meaning of "tradition" in the Alaska National Interest Lands Conservation Act ("ANILCA") and the Marine Mammal Protection Act ("MMPA"), two federal laws of particular importance in Alaska, and in Alaska state law relating to land and natural resource use. The Note draws upon a variety of sources, including the texts of those laws, judicial decisions and agency interpretative regulations. The Note argues that the term "tradition" should be defined and interpreted by paying attention to the potentially competing values associated with the term and raises the question of which institution or entity is best suited to interpret tradition in particular contexts.

I. INTRODUCTION

In Alaskan natural resource law, "tradition" is a powerful legal concept, appearing in a bewildering variety of contexts in Alaskan law and legal discourse relating to natural resource and public lands activities. The concept of tradition invokes a spectrum of underlying values, sometimes complementary, sometimes competing. Both state and federal natural resource and land use laws pertaining to Alaska assign privileges and exemptions for individuals engaging in "traditional activities" and "traditional uses" of land and resources. However, in spite of its prevalence in statutory law, the term "tradition" is rarely defined, and the underlying values to be protected are rarely identified explicitly. Instead, use of the word seems more often to be accompanied by an implicit assumption that both the meaning and the inherent worth of "tradition" are obvious. Failure to define the term in statutory law has given rise to problematic and inconsistent results as courts, administrators and other decision-makers attempt to strike appropriate balances between implicit, often competing, values.

[*pg 168]

This Note begins by examining a decision of the Alaska District Court, Alaska State Snowmobile Association, Inc. v. Babbitt, ^[1] as an example of the problems created by the failure to define "tradition" as applied to resource uses and activities. Next, it discusses use of the term in legal rules governing natural resource use in Alaska. Finally, the Note analyzes the values associated with the term in a natural resources context and discusses the problems that have arisen as decision-makers have attempted to strike proper balances among competing values. The Note closes by raising the question: which institution or entity should decide what tradition means? This Note does not assert that a single meaning for tradition in state and federal law is necessary or even desirable. Rather, it suggests that tradition should be defined and interpreted with deliberate attention to the full spectrum of potential values the term may represent and in light of the ends that may be attained by investing tradition with each of its possible meanings.

II. COMPETING VALUES INVOKED BY TRADITION: ALASKA STATE SNOWMOBILE ASSOCIATION V. BABBITT

Although the issue of the proper interpretation of "tradition" and "traditional activities" is not new to Alaska courts, a recent decision by a federal district court illustrates the critical need for more definition. In Alaska State Snowmobile Association, Inc. v. Babbitt, ^[2] the Alaska State Snowmobile Association ("ASSA") and individual plaintiffs brought suit against the Secretary of the U.S. Department of the Interior, the Director of the U.S. National Park Service ("NPS") and other defendants ^[3] responsible for managing Denali National Park after the NPS temporarily closed the wilderness core of Denali to snowmobiling activities. ASSA alleged that the temporary closure violated Section 1110(a) of the Alaska National Interest Lands Conservation Act ("ANILCA"), which allows access by snowmachines and other forms of transportation to [*pg 169] otherwise restricted-access areas of conservation system units, including Denali, for "traditional activities . . . and for travel to and from villages and homesites." ^[4] ASSA argued that its members' use of snowmachines for recreational purposes such as sightseeing and backcountry camping were traditional activities under Section 1110(a). ^[5] NPS, on the basis of a previous administrative order defining traditional activities to be those "regularly practiced in the [wilderness core of Denali] before the 1980 passage of ANILCA," ^[6] argued that because snowmachines were not lawfully used for recreation in the area before 1980, such recreational uses were not traditional. ^[7]

Because ANILCA does not define what activities will be considered traditional, ^[8] the district court had to determine whether ASSA had standing to sue. A frustrated Judge Sedwick answered that ASSA had standing after examining the "murky" history of NPS's treatment of the issue of snowmachine use in Denali. ^[9] The court stated that "a review of the Administrative Record cannot but lead to the uncomfortable conclusion that [NPS] has no formally established position (and perhaps not even an informally established position that is both current and coherent) of what constitutes 'traditional activities' within the meaning of ANILCA." ^[10] The court noted that "[NPS's] failure to define 'traditional activities' makes it impossible for the court to hold now that 'sightseeing, experiencing solitude, practicing photography, and enjoying backcountry camping, the wilderness experience, and other traditional activities'" as described by ASSA "do not embrace at least one 'traditional activity' within the meaning of ANILCA." ^[11] The court [*pg 170] ultimately decided that the closure order was arbitrary and capricious and declared that it violated ANILCA. ^[12]

A proposed NPS rule defining traditional activities was issued in the wake of the Snowmobile decision and prompted a flood of public comment ^[13] from interested parties. At the heart of this debate, still ongoing, is fundamental disagreement among regulatory authorities and stakeholders over the interests that invocation of tradition should address. The proposed rule defines a traditional activity as one that "generally" occurred in a conservation unit before ANILCA's enactment "and that was typically associated with that region as an integral and established part of a utilitarian Alaska lifestyle or cultural pattern." ^[14] This definition suggested that for NPS, the values to be protected by invoking tradition are sociocultural; the definition did not appear to contemplate sport or recreational uses. ^[15] ASSA, on the other hand, advocated a meaning for tradition in which the key element is simply some level of historical continuity: so long as activities were practiced before the "cutoff date" of ANILCA's passage in 1980, their purpose or sociocultural significance is irrelevant.

In response to comments from the Alaska Legislature and Alaska's Governor, NPS modified the proposed definition to remove the association of traditional activities with culture. ^[16] The Final Rule defines a traditional activity as:

[a]n activity that generally and lawfully occurred in the Old Park [the wilderness portion of what is now Denali] contemporaneously with the enactment of ANILCA, and that was associated with the Old Park, or a discrete portion thereof, involving the consumptive use of one or more natural resources of the Old Park such as hunting, trapping, fishing, berry picking or similar activities. ^[17]

The Final Rule thus rejects a solely sociocultural rationale for exemptions to NPS's access restrictions but imposes more than a simple "historical continuity" rationale. However, although the explicit reference to culture was deleted, an implicit sociocultural [*pg 171] rationale still exists. Supplementary material accompanying the Final Rule states: "This consumptive use [referenced in the Final Rule's definition of traditional activities] is part of a life style or cultural pattern that remain [sic] practical and essential components of subarctic life." ^[18] From NPS's perspective, recreational activities such as snowmobiling lack the sociocultural dimension that the agency seems to consider a necessary component of tradition. ^[19]

These fundamental conflicts between competing values associated with the idea of tradition continued for some time in litigation over the definition of traditional activities in NPS's Final Rule. ^[20] NPS limited the Final Rule's applicability to the wilderness portion of Denali National Park and stated that for other conservation units in Alaska, the meaning of traditional activities must be defined on an area-by-area basis. ^[21] Yet...