[Federal Register Volume 77, Number 109 (Wednesday, June 6, 2012)]
[Notices]
[Pages 33391-33392]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13673]
[[Page 33391]]
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DEPARTMENT OF AGRICULTURE
Forest Service
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-R7-SM-2012-N044; FXFR13350700640L6-123-FF07J00000]
Subsistence Management Program for Public Lands in Alaska
AGENCY: Forest Service, Agriculture; Fish and Wildlife Service,
Interior.
ACTION: Notice.
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SUMMARY: The Departments, in compliance with the determinations of the
District Court in Peratrovich v. United States, No. 3:92-cv-00734-HRH
(D. Alaska), announce the initiation of reviews of pre-statehood
withdrawals and reservations in the Tongass National Forest. These
reviews, as ordered by the United States District Court for the
District of Alaska, will be used in regulatory proceedings for the
purpose of implementing Title VIII of the Alaska National Interest
Lands Conservation Act with respect to submerged public lands within
the Tongass National Forest.
FOR FURTHER INFORMATION CONTACT: Chair, Federal Subsistence Board, c/o
U.S. Fish and Wildlife Service, Attention: Peter J. Probasco, Office of
Subsistence Management; (907) 786-3888 or subsistence@fws.gov. For
questions specific to National Forest System lands, contact Steve
Kessler, Regional Subsistence Program Leader, USDA, Forest Service,
Alaska Region; (907) 743-9461 or skessler@fs.fed.us.
SUPPLEMENTARY INFORMATION:
Background
Under Title VIII of the Alaska National Interest Lands Conservation
Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and
the Secretary of Agriculture (Secretaries) jointly implement the
Federal Subsistence Management Program. This Program provides a
priority for taking of fish and wildlife resources for subsistence uses
on Federal public lands and waters in Alaska. The Secretaries published
temporary regulations to implement this Program in the Federal Register
on June 29, 1990 (55 FR 27114), and final regulations in the Federal
Register on May 29, 1992 (57 FR 22940). The Secretaries have amended
these regulations a number of times. Because this Program is a joint
effort between Interior and Agriculture, these regulations are located
in two titles of the Code of Federal Regulations (CFR): Title 36,
``Parks, Forests, and Public Property,'' and Title 50, ``Wildlife and
Fisheries,'' at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The
regulations contain the following subparts: Subpart A, General
Provisions; Subpart B, Program Structure; Subpart C, Board
Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.
Litigation
In Peratrovich v. United States, No. 3:92-cv-00734-HRH (D. Alaska),
the plaintiffs challenged, in part, the failure to include as public
lands, subject to the priority under Title VIII of ANILCA (16 U.S.C.
3113-3126), certain marine waters in the Tongass National Forest. In
its May 31, 2011, order, the Court partially held in favor of the
plaintiffs. The Court stated that ``it is the duty of the Secretaries
[Agriculture & Interior] to identify any submerged lands (and the
marine waters overlying them) within the Tongass National Forest to
which the United States holds title.'' Because, if such title exists,
it ``creates an interest in [the overlying] waters sufficient to make
those marine waters public lands for purposes of [the subsistence
provisions] of ANILCA.''
In the regulations, the Secretaries excluded the marine waters
within the Tongass National Forest as public lands subject to the
subsistence priority since marine waters within the exterior boundaries
of a National Forest are not subject to reserved water rights.
Subsequently, the United States also disclaimed interest in the marine
submerged lands within the exterior boundaries of the Tongass National
Forest in Alaska v. United States, No. 128 Orig., 546 U.S. 413 (2006).
In that case, the State of Alaska sought to quiet title to lands
underlying marine waters within the boundaries of the Tongass National
Forest and elsewhere within southeastern Alaska. In the course of that
litigation, the United States disclaimed ownership to submerged lands
in the Tongass National Forest, with some exceptions that generally
involve small tracts, Alaska v. United States, 546 U.S. at 415. The
Supreme Court accepted the disclaimer.
When the United States assumed control over the subsistence program
in Alaska in 1990, the Secretaries responded to comments on the scope
of the program during promulgation of the interim regulations,
published in the Federal Register on June 29, 1990 (55 FR 27114). The
Secretaries stated that ``the United States generally does not hold
title to navigable waters and thus navigable waters generally are not
included within the definition of public lands.'' That position was
changed in 1999 when the subsistence priority was extended to waters
subject to a Federal reserved water right in the Katie John litigation.
Alaska v. Babbitt, 72 F. 3d 698 (9th Cir. 1995). Later the Secretaries
identified certain submerged marine lands that did not pass to the
State where the subsistence priority applied. The regulations
recognized that additional marine waters might subsequently be
determined to be public lands. Over the years, small areas of submerged
marine lands in the Tongass National Forest have been identified as
public lands subject to the subsistence priority (71 FR 49997, August
24, 2006, as amended by 74 FR 34696, July 17, 2009).
The court acknowledged in its order that inventorying all these
lands could be an expensive undertaking, but that it is a burden
``necessitated by the `complicated regulatory scheme' which has
resulted from the inability of the State of Alaska to implement Title
VIII of ANILCA.''
In its October 17, 2011, order, the court ``enjoined'' the United
States ``to promptly initiate regulatory proceedings for the purpose of
implementing the subsistence provisions in Title VIII of ANILCA with
respect to submerged public lands within Tongass National Forest'' and
directed entry of judgment.
Purpose of Notice
To comply with the order, the Federal Subsistence Board is
proceeding to identify for the Secretaries those submerged lands within
the Tongass National Forest that did not pass to the State at statehood
and that are subject to Title VIII of ANILCA.
The Bureau of Land Management (BLM) has commenced the review of
pre-statehood (January 3, 1959) withdrawals of submerged lands in the
marine waters of the Tongass National Forest following the Court's May
31, 2011, order that preceded the final October 17, 2011, order. The
BLM review process is proceeding. In addition to BLM, the U.S. Forest
Service has started its review of records to identify lands filled in,
built up, or otherwise reclaimed by the United States for its own use
prior to Alaska statehood, and other areas that may not have passed to
the State at statehood.
This notice announces to the public, including rural Alaska
residents and federally recognized Tribes of Alaska, the initiation of
reviews of pre-statehood withdrawals in the Tongass National Forest.
When final, these
[[Page 33392]]
reviews will be used in regulatory proceedings, either by the
Secretaries, or the Board, for the purpose of implementing Title VIII
of ANILCA with respect to submerged public lands within the Tongass
National Forest, as ordered by the U.S. District Court for Alaska.
Dated: May 11, 2012.
Peter J. Probasco,
Assistant Regional Director, U.S. Fish and Wildlife Service, Acting
Chair, Federal Subsistence Board.
Steve Kessler,
Subsistence Program Leader, USDA--Forest Service.
[FR Doc. 2012-13673 Filed 6-5-12; 8:45 am]
BILLING CODE 3410-11-P-4310-55-P