Community Perspective
Moose case illustrates federal quandary
Published Saturday, May 3, 2008
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Stumble It!Front-page news on April 11 was the story about Jeff King supposedly killing a moose inside Denali National Park.
It appears this moose was taken in accordance with Alaska Department of Fish and Game regulations. However, the National Park Service did not like the location of where it was taken. It appears the moose was harvested in the northeastern portion of the park, as expanded by the D2 Lands act of 1980; the Alaska National Interest Lands Conservation Act. Section 202(3)(a) allows local residents to subsistence hunt where this use was traditional, all in accordance with Title VIII. Herein lies the problem. Who is a local resident, and who is a qualified subsistence user?
Decisions by the Alaska Supreme Court have found that all Alaska residents qualify for subsistence. The NPS does not recognize this and selects only rural individuals with certain addresses, therefore setting up a discriminatory allocation system. Jeff does not have an acceptable address. You must live south of Mile 239 or north of Mile 300 on the Parks Highway to have an acceptable address. No other state has such a discriminatory management system.
Hunting in the Rock Creek area has been a traditional use long before statehood and ANILCA.
It appears what we have here is a criminal trespass issue, not a hunting violation. Had Jeff’s address been acceptable to the NPS, none of this would be a problem.
Here is how it works. The fish and wildlife in ALL of Alaska, in accordance with the Alaska state Constitution, belongs to the residents of Alaska collectively. This includes all NPS lands. Because all Alaska residents are subsistence users, they have an equal opportunity under state law to subsistence hunt and fish. This has been confirmed by the Alaska Supreme Court.
The federal government does not agree with the Alaska Supreme Court and has set up its own set of rules using Title VIII and federal court decrees. The feds then select — by address — the group they determine to be qualified rural federal subsistence users. Jeff fails to qualify.
In addition, the feds then proceeded to set up their own Fish and Game Board (Federal Subsistence Board) to allocate fish and wildlife (which they do not own) to this select group based on addresses.
Since 1980, no governor has had the fortitude to challenge the constitutionality of this thievery or the discriminatory allocation system set up by the federal government. Gov. Knowles had a chance, and he refused to carry the constitutional challenge forward.
This Jeff King issue could be resolved rather quickly if Gov. Palin would challenge the constitutionality of the federal subsistence system. The court of first jurisdiction is the U. S. Supreme Court. The court would have to hear the case.
We will have to wait and see if Gov. Palin is true to her word and really believes in Article 1 — Declaration of Rights, Section 1, Inherent Rights of the Alaska Constitution — which states, “the constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and the state.”
The other route is for Jeff, as his defense, to challenge the constitutionality of the NPS actions. This could take 20 years and hundreds of thousands of dollars. A study of past federal cases would indicate Jeff will lose all the way through the 9th Circuit Court. It would then be subject to possible selection by the U.S. Supreme Court.
The state could ask to be allowed to join the case on behalf of Jeff. To date, the state has not taken this action to support others who have challenged the feds.
Thomas N. Scarborough is a 40-year Alaska resident, a civil engineer and land surveyor. He is an active advocate for managing Alaska’s wildlife for abundance and in accordance with the sustained-yield principle set forth in the state constitution.
Community Discussion
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Hmmmm....a high profile case that should have never occured. Best wishes Jeff, I hope Gov Palin will step up and get this matter resolved once and for all.
Mr. Scarborough, your passion is admirable. Your facts are wanting.
In contrast to your outright falsification in one of your paragraphs above, this is "how it works": Mentioning the Alaska Constitution is a waste of time, other than as an attempt to obfuscate the issue. Its applicability to the federal government in this issue can be summed up in one word: "bupkus."
Moving on to the Federal Constitution, it may well be that the federal subsistence scheme may not be either fair nor logical. Any lawyer can tell you that the law has nothing to do with either fairness or logic. Knowles read the tea leaves and decided - correctly in my opinion - that pouring millions of dollars into a losing battle was not the way to spend state money.
As to whether the state "owns" the game inside a national park that predates statehood, this has been litigated and decided many times: it doesn't.
All this is beside the point off course. If King wanted to litigate this issue he should have done it before he decided to drive his ATV into the park and harvest a moose, not before. No judge (or in this case magistrate) in his right mind is going to allow any of this to come into court during his case.
This federal recognition of subsistence originates with the board of game historically favoring commercial guides and urban hunters over natives hunting in their own backyard. Think of a float planes and air boats arriving on the slough by your home and proceeding to shoot all the moose in sight. This was a frequent occurrence in the past.
After the Feds took over hunting and fishing on federal lands, suddenly everyone is an equal citizen and amazingly in need of subsistence privileges. The State of Alaska always recognized subsistence rights but there was an economic or residency requirement.
I don't know the solution but the State Board of Fish and Game and the not so hidden racism is the cause of the problem.
ANILCA exists in violation of Article 1 Section 8 as well as the 10th Amendment of the United States Consitution.
Tom, if you ever run for office again, I'll vote for you again.
I know what you're saying is, in fact, correct.
Mr. Scarborough, I find it amazing that you have decided to use Mr. King to grandstand. This issue could have been solved by any number of republican Gov's . For you to single out Tony Knowles shows your lack of knowledge on this situation.If Mr. King were to win this would you be willing to assist the two gentleman from Nenana/Anderson convicted two years ago or mabe the indvidual from Cantwell. How about the 3 guys from Cantwell using motorized vehicles 5 years ago. I am pleased I that I put my support behind David Guttenburg as he can get things accomplished without the grandstanding
Get real. Jeff King is NO subsistence user. He rakes in big money from his Iditarod winnings, dog sales and from giving tours to tourists at Huskyhomestead. Real subsistence users have minimal resources. King can afford to pay for big steaks at fancy restaurants.
That is crap about King making too much money. Subsistence has nothing to do about money, if it did, it just becomes another entitlement and welfare system. I see more people on welfare shopping at the stores with more money for food than I who works hard for what I have. I don't care if Jeff King makes 10 million dollars a year, he could still be a subsistence user.
I am trying to sort out the address thing in Tom's letter. To my mind it should be north of mile 239 and
south of mile 300. I am glad to see this discussion. It was my understanding that it had come before the judge in some federal court and the residents of the area of the expanded Park were allowed to use the expanded Park area for subsistence activities including hunting and the use of motorized vehicles. This was based on a big and long term serious effort by some residents to show docoumented subsistence use in that expanded park area and that use included hunting and use of motorized vehicles back to three generations before the expansion.
Actually Mr. King is a subsistance user under Federal guidelines. He along with anybody else that lives north of 213 of the Parks HWY can take game on all federal land except within the expanded Denali National Park. This is truly a system that pits neighbor against neighbor.Concur that subsistance should not be about money.
He knew what he was doing and even moved the kill site... did everyone forget about the evidence? He was wrong and should be punished.
Sosorry, it is confusing because apparently when the News-Miner accepts "community perspective" submissions are apparently exempt from fact checking. His "letter" above is so rife with inaccuracies and downright misrepresentations that it is hard to even understand what he is trying to say. He could have just as easily said "life isn't fair" and saved us five minutes of reading.
The State hunting regulations are very clear that if you aren't sure about your quarry, location, or regulations, you shouldn't pull the trigger. The Governor's message on page two states that "We are all personally responsible for knowing and following the regulations affecting our hunts." That being said, and after reading the original article, I don't think the Governor should or will take up this case unless like Mr. Scarborough, she wants to challenge the Board of Game's definition of subsistence hunting.
On Mr. King's behalf, the US Congress mandated in Title 1 of ANILCA that, "When ever possible boundaries shall follow hydrographic divides or embrace other topographic or natural features." However, ANILCA does not apply to Denali park. It is now up to a judge to decide if Mr. King was wrong, or if the Secretary of the Interior failed to clearly define the boundary thus creating the circumstances for entrapment. It does not look good for Mr. King being a long time resident to make such a mistake.
I hear of new residents being charged with a similar crime every year with regards to the five mile corridor. Prudence says don't hunt on the edge of a line you can't see but our troopers know the common error made where in reality you can travel more than five miles away from the hall road and still be inside the corridor.
This case again highlights the fact that there are a lot of complicated state and federal regulations limiting hunters which makes it easier to be on the wrong side of the law than on the right side of it. My suggestion is to the regulators to review such cases and highlight those common boundary error locations upfront in the regulations.
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