R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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FSH 2090.23 – SUBSISTENCE MANAGEMENT AND USE HANDBOOK
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Table of Contents
01 - AUTHORITY ............................................................................................................ 2
02 - OBJECTIVE ............................................................................................................. 3
03 - POLICY .................................................................................................................... 3
04 - RESPONSIBILITY ................................................................................................... 4
05 - DEFINITIONS .......................................................................................................... 4
R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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FSH 2090.23 – SUBSISTENCE MANAGEMENT AND USE HANDBOOK
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01 - AUTHORITY
1. Public Law 96-487, the Alaska National Interest Lands Conservation Act (ANILCA),
in Title VIII, Sections 801 to 816, provides for Federal Subsistence Management and Use on
public lands in Alaska. Section 810, subtitled Subsistence and Land Use Decisions provides the
outline of how subsistence considerations shall be incorporated in the Federal land use decision
making process in Alaska. Specifically as applied to the Forest Service.
In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy or
disposition of public lands under any provisions of law authorizing such actions, the head of the
Federal Agency having primary jurisdiction over such lands or his designee shall evaluate the
effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of
other lands for the purposes sought to be achieved, and other alternatives which would reduce or
eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes.
This applies to any request whether the action is a request from outside the Forest Service or on
its own motions.
Briefly, subsection 810(a), requirements depending on circumstances, can be met by completing
up to four actions. These actions are:
An EVALUATION which consists of three major parts:
1. Effect of the proposed action on subsistence.
2. Availability of other lands for the proposed action.
3. Other alternatives that reduce or eliminate the proposed action from lands needed for
subsistence.
a. A FINDING of whether or not a proposed action shall have a significant
possibility of a significant restriction on subsistence uses,
b. NOTICE AND HEARING if an action is expected to have a significant possibility
of a significant restriction on subsistence uses, and,
c. If there is a significant possibility of a significant restriction expected on
subsistence uses, a three-part DETERMINATION must be made before the action
may be authorized. The determination will include and demonstrate that:
(1) The subsistence restriction is necessary, consistent with sound management
principles for the utilization of the public lands,
R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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(2) Minimum public lands necessary will be used to accomplish the purpose of
proposed action, and
(3) Reasonable steps will be taken to minimize adverse impacts upon subsistence uses
and resources resulting from the action.
Subsection 810(b) provides for combining the Section 810 process with the NEPA
process.
2. The interagency Alaska Land Use Council (ALUC) has approved two sets of
guidelines for use by Federal Agencies. These are: (1) Section 806-Subsistence Monitoring and
Reporting, and (2) Section 810-Subsistence and Land Use Decisions. The Collection, Analysis,
and Presentation of Subsistence Use Information guidelines are also being prepared and will be
used by the Forest Service, when available.
02 - OBJECTIVE
1. To establish policy and direction for the conduct of the Subsistence Management and
Use progam unique to the Alaska Region of the Forest Service.
2. To provide a uniform system for evaluation and reporting of the expected effects of
land use decisions on subsistence uses.
03 - POLICY
1. Consistent with sound management principles, recognized scientific principles, the
conservation of healthy populations of fish and wildlife, and the purpose for which the National
Forests were established, the utilization of National Forest lands in Alaska is to cause the least
adverse impact possible on rural Alaska residents who depend upon subsistence uses of the
resources of such lands. The purpose of this policy is to provide the opportunity for rural
residents engaged in a subsistence way of life to continue to do so.
2. Non-wasteful subsistence uses of fish and wildlife and other wild renewable resources
shall be the priority consumptive uses of all such resources on the National Forest lands in
Alaska. When it is necessary to restrict taking in order to assure the continued viability of a fish
or wildlife population, or the continuation of subsistence uses of such population, subsistence
uses shall be given preference over other comsumptive uses.
3. The Forest Service, in managing subsistence activities on the National Forest lands
and in protecting the continued viability of all wild renewable resources in the Alaska Region,
shall cooperate with tribal governments and adjacent landowners and land managers, including
Native Corporations, and appropriate State and Federal agencies.
R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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4. The timber free use regulations found in FSM 2462.2 govern the free use of timber in
Alaska National Forests for subsistence purposes.
04 - RESPONSIBILITY
1. Regional Forester. Responsible for overseeing the program through interactions with
other Federal agency heads in Alaska as part of the Alaska Land Use Council. Approves
decisions of line officers as to the disposition of any action expected to have a significant
restriction on subsistence uses.
2. Line Officers. Responsible for monitoring habitat changes on subsistence uses;
completing the evaluation of the expected effects of land use decisions on subsistence uses; and
for issuing a finding on whether or not there is a significant restriction expected, is hereby
delegated to the line officer who has the authority to make and carry out the particular land use
decision. Such evaluation of the expected effects of land use decisions shall be incorporated into
NEPA processes and documents.
3. Regional Director Wildlife and Fisheries Management. Through the Subsistence
Coordinator, the Director has responsibility for program management and interagency
coordination. Specifically this includes:
a. Section 806 annual monitoring and interagency reporting.
b. Section 810 evaluation and finding process review.
c. Section 813 periodic interagency reporting.
05 - DEFINITIONS
1. Subsistence Uses. (ANILCA Section 803) The customary and traditional uses by rural
Alaska residents of wild renewable resources for direct personal or family consumption as food,
shelter, clothing, tools, or transportation; for the making and selling of handicraft articles for
personal or family consumption; for barter, or sharing for personal or family consumption; and
for customary trades. For the purposes of this section:
a. Family. All persons related by blood, marriage, or adoption, or any person living
within the household on a permanent basis; and
b. Barter. The exchange of fish or wildlife or their parts for subsistence uses:
(1) For other fish and game or their parts; or
R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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(2) For other food or for nonedible items other than money, if the exchange is of a
limited and noncommercial nature.
2. Significantly Restrict Subsistence Uses. (Alaska Land Use Council Section 810
Guidelines) A proposed action shall be considered to have a significant possibility of a
significant restriction of subsistence uses, if after any modification warranted by consideration of
alternatives, conditions, or stipulations it can be expected to result in a substantial reduction in
the opportunity to continue subsistence uses of renewable resources. Reductions in the
opportunity to continue subsistence uses generally are caused by: reductions in the abundance
of, or major redistribution of resources; substantial interference with access; or major increases
in the use of those resources by nonrural residents. The responsible line officer must be sensitive
to localized, individual restrictions created by any action and make his/her decision after a
reasonable analysis of information available.
3. Significant Restriction on Subsistence Uses. See Zero Code – Exhibit 01 for additional
guidelines from the U.S. Ninth Circuit Court of Appeals.
R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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Zero Code – Exhibit 01
U.S. Ninth Circuit Court of Appeals Guidelines of Definition
of Significant Restriciton on Subsistence Uses
The following materials, extracted from the U.S. Ninth Circuit Court of Appeals decision on
September 10, 1984, in BLM's NPR-A lease case and from the modified Record of Decision
from the NPR-A leasing program, set parameters and provide guidelines for a determination of
significant restriction on subsistence uses. Note that first a restriction must be foreseen, then the
magnitude of the restrictions must be evaluated.
Quoting from the U.S. District Court for Alaska decision by Judge Fitzgerald from Kunaknana,
et. al., vs. Watt, December 20, 1983, Decision of Record (NPR-A Lease Sale) pages 41 and 42:
"At this juncture I note that Section 810(a) does not define or interpret the phrase
"significant restriction upon subsistence uses." The Alaska Director (BLM) has provided a
definition of the term "significant restriction of subsistence uses," as used in Section
810(a), and plaintiffs do not seriously dispute the validity of that definition. Furthermore,
since the Director is the government of official charged with the responsibility of
complying with Section 810(a), I must defer to his interpretation of the statute provided
that it is consistent with and in furtherance of the purposes and policies of the legislation . .
..
The Director has defined "significant restrictions of subsistence uses" as (1) a reduction in
the availability of harvestable resources caused by decline in the population of subsistence
resources, and (2) a reduction in the availability of resources, caused by an alteration in
their distribution or location throughout the National Petroleum Reserve-Alaska, and (3)
the limitation of an access by subsistence harvesters.
Significant restrictions are differentiated from insignificant restrictions by a process
assessing whether the action undertaken shall have no or a slight effect as opposed to large
or substantial effects. In further explanation the Director states that no significant
restriction results when there would be "no or a slight" reduction in the abundance of
harvestable resources and no "occasional" redistribution of these resources.
There would be no effect (or slight inconvenience) on the ability of harvesters to reach and
use active subsistence harvesting sites; and there would be no substantial increase in
competition for harvestable resources, (that is, no substantial increase in hunting by oil
field workers or outsiders using roads to the oil fields).
Conversely, restrictions for subsistence uses would be significant if there were large
reductions in the abundance or major distribution of these resources, substantial
interference with harvestable access to active subsistence sites or major increases in nonrural resident hunting.
R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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FSH 2090.23 – SUBSISTENCE MANAGEMENT AND USE HANDBOOK
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R-10 AMENDMENT 2090.23-2006-1
EFFECTIVE DATE: 06/30/2006
DURATION: This amendment is effective until superseded or removed.
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In light of this definition the determination of significant restriction must be made on a
reasonable basis, since it must be decided in light of the total subsistence lands and
resources that are available to individuals in surrounding areas living a subsistence
lifestyle."
While the referenced materials do not provide absolute numbers they do set parameters and
provide guidelines.