Breaking the trail of broken promises: "necessary" in Section 810 of ANILCA carries substantive obligations.

• Author: Cheyette, Dan
• Position: Alaska National Interest Lands Conservation Act

1. INTRODUCTION

   Since 1968, the federal government has promoted a policy of self-determination for Native Americans. President Nixon summarized this new policy in a special message to Congress on July 8, 1970, when he urged that it propose legislation based on "the capacities and insights of the Indian people."(1) "The time has come," Nixon instructed, "to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions."(2) Congress heeded these remarks and in the years that followed enacted several pieces of legislation with the goal of giving Native Americans an "effective voice" in designing and implementing social programs needed by Native communities.(3)

   A decade later, Congress continued this policy by including Title VIII in the Alaska National Interest Lands Conservation Act (ANILCA).(4) Congress enacted Title VIII to protect subsistence resources, such as salmon and Sitka black-tailed deer, which are the main prey for subsistence hunting and fishing. However, subsistence is more than an economic term because these resources are also critical to Native Alaskans' cultural and social identity. A subsistence lifestyle requires an understanding of the intricate web that links humans, animals, and the environment.(5) Alaskan Natives rely on the subsistence lifestyle, but external forces are threatening this way of life. Foreign values such as wage employment, the accumulation of wealth, and the exploitation of natural resources compete with Native values. Increasingly, Native values and culture are giving ground to these external forces.(6)

   Representative Morris Udall (D-Ariz.) was a major architect of ANILCA. Before the introduction of ANILCA in Congress, Udall promised "that the trail of broken promises will end with the passage of Alaska national interest lands legislation... [and] that any legislation passed by this Congress will guarantee the protection and continuation of subsistence uses by rural Native people."(7) Congress enacted Title VIII to extend the federal government's goal of self-determination to Alaskan Natives and to forestall the encroachment of external forces into their lives.(8) Today, fifteen years following enactment, the promises Representative Udall made remain unhonored and the purposes of Title VIII unachieved.

   The shortcomings of ANILCA are nowhere more evident than in the Tongass National Forest. There, logging of timber destined for the pulp mills of the Ketchikan Pulp Company and the Alaska Pulp Corporation continue despite claims that the sales are destroying the black-tailed deer and salmon that are essential to subsistence-reliant communities.(9) This Comment examines the Forest Service's subsistence management policies for the Tongass National Forest. Part II of this Comment presents a background of section 810 of ANILCA and the history of two large timber contracts, whose requirements have fueled logging in the Tongass. It also gives a summary of the characteristics of the Tongass, its economy, and the subsistence activities of the Native peoples who rely on the Tongass. Part III discusses ANILCA's legislative history and Congress's belief that the Tongass could both support high levels of logging and at the same time protect subsistence resources. Congress failed to anticipate that these goals would come into direct conflict, and the Forest Service has chosen to honor timber commitments at the expense of subsistence resources. Part IV examines how the Forest Service has misinterpreted section 810 to allow projects to continue despite their adverse impact on subsistence resources by determining that the sales are "necessary" to meet the timber harvest goals of an outdated land management plan. It then argues that current implementation of section 810 is improper and that the Forest Service should manage the Tongass in a way that does not sacrifice forest resources for timber harvesting. Part V discusses the Tongass Timber Reform Act's attempts to end timber dominance in forest management practices and argues that the Forest Service must design a new management plan for the Tongass, taking into equal account timber harvest goals and the protection of subsistence resources. Part VI discusses the litigation that has arisen as groups attempt to prevent the Forest Service from continuing practices that damage subsistence resources under ANILCA. Part VII concludes that the Forest Service has improperly applied section 810 of ANILCA by ignoring the substantive requirements of the statute and managing the Tongass for timber harvesting to the detriment of subsistence. Finally, it argues that until the Forest Service creates a new management plan that considers equally all resources of the Tongass, the courts must enjoin timber sales that adversely impact subsistence resources.

   H. BACKGROUND

   A. The Statute

   Title VIII seeks to protect subsistence resources principally by protecting Native uses of fish and game.(10) Section 810 of Title VIII sets out a framework for the consideration and protection of subsistence resources in all land use decisions.(11) Congress derives its authority to mandate these protections from its plenary power over Indian affairs and its trust responsibility to Alaskan Natives.(12)

   Congress premised section 810 on the assumption that substantial timber harvests from the Tongass could be maintained while protecting subsistence resources.(13) Over the years, this premise has proven false, resulting in debate over the meaning and intent of section 810. Subsistence users and advocates for Native rights argue that section 810 carries a substantive element prohibiting any project that adversely affects subsistence resources unless the project is necessary.(14) Developers routinely claim that, like the National Environmental Policy Act (NEPA),(15) section 810 carries only procedural requirements.(16) Once these procedural requirements are met, any project may go forward, no matter how damaging to subsistence resources.(17) These viewpoints represent the extremes. As the debate proves, it is not easy to discern the true meaning of section 810. Over the life of the statute, section 810 has had an evolving meaning shaped by ANILCA's legislative history, the Forest Service's Tongass management practices, the Tongass Timber Reform Act (TTRA),(18) and court decisions. To understand the meaning of the statute, one must look at these policy choices, legislation, and decisions as a whole and weigh their competing objectives and directives against one another. It then becomes clear that under Section 810, Congress directed the Forest Service to determine that timber sales are "necessary" to achieve the objectives of a Tongass Land Management Plan (TLMP) which considered equally all forest resources. Contrary to this mandate, the Forest Service continues to determine which sales are "necessary" under the outdated 1979 Plan. Until the Forest Service creates a new TLMP, courts must enjoin sales that may adversely affect subsistence resources and for which the Forest Service is unable to show that no less adverse alternatives exist.(19)

   B. The Tongass National Forest

   The Tongass National Forest, comprised of almost 17 million acres, is the nation's largest national forest.(20) Within its borders are mountain peaks, narrow fjords, old-growth forests, over a thousand islands, and nearly eleven thousand miles of shoreline.(21) With approximately 5.7 million acres designated as wilderness and another 4.7 million acres with wilderness characteristics, the Tongass is mostly wild and undeveloped.(22) Roughly 65,000 people live in southeast Alaska, almost all of whom live in thirty-three communities along the island and mainland coasts. Most of these communities are either surrounded by or are next to Tongass forest land.(23) The Tongass is home to the worlds largest populations of grizzly bears and bald eagles and serves as the spawning grounds for ninety percent of southeast Alaska's salmon.(24) In addition, the Tongass is home to Sitka black-tailed deer, a crucial subsistence resource for many southeast Alaska communities.(25)

   Of the Tongass's 17 million acres, roughly only ten million acres are forested.(26) The Forest Service considers only 5.7 million acres of this land to be "Productive forest."(27) Only 5.05 million acres of the productive forest is productive old-growth and only 600,000 acres of this is high-volume old-growth.(28) In other works, high-volume old-growth only constitutes three percent of the Tongass. It is the high-volume old-growth, however, that is the most biologically important and commercially attractive timber.(29) Intensive harvesting between 1954 and 1990 has reduced the stands of high-volume old-growth by thirty-nine percent.(30)

   C. Tongass Timber Development

   Timber development in the Tongass began in 1947 when Congress passed the Tongass Timber Act of 1947 (TTA),(31) Which authorized the Forest Service to enter into timber sale contracts.(32) In 1951, the Forest Service entered into a fifty-year, long-term contract with the Ketchikan Pulp Company (KPC). The contract required the sale of 8.25 billion board feet of timber in exchange for the construction and operation of a pulp mill in Ketchikan, Alaska.(33) In 1957, the Forest Service entered into a similar long-term conflict with the Alaska Pulp Corporation (APC), a Japanese corporation. This contract required five billion board feet of timber over fifty years in exchange for the construction and operation of another pulp mill in Sitka, Alaska.(34) The Forest Service later signed to additional contracts with other mills, but these are no longer in effect. After the cancellation of the APC contract in April 1994,(35) only the KPC contract remained.(36) The long-term contracts have played a significant role in the economy of southeast Alaska because they brought year-round employment.(37) Today...