Subsistence Management Regulations for Public Lands in Alaska-Applicability and Scope; Tongass National Forest Submerged Lands

<RULE> DEPARTMENT OF AGRICULTURE <SUBAGY>Forest Service</SUBAGY> <CFR>36 CFR Part 242</CFR> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 100</CFR> <DEPDOC>[Docket No. FWS-R7-SM-2018-0013; FF07J00000-245-FXFR13350700640]</DEPDOC> <RIN>RIN 1018-BC96</RIN> <SUBJECT>Subsistence Management Regulations for Public Lands in Alaska—Applicability and Scope; Tongass National Forest Submerged Lands</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Forest Service, Agriculture; Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> To comply with a court order, the Secretaries, through the Federal Subsistence Board (Board), initiated regulatory proceedings to identify those submerged lands within the Tongass National Forest that did not pass to the State of Alaska at statehood and, therefore, remain Federal public lands subject to Federal subsistence provisions. This rule adds to the list of submerged parcels in the Federal subsistence regulations that have been identified through agency review. The purpose of this rule is to complete regulatory proceedings addressing submerged public lands within the Tongass National Forest, as directed by the Court, and will result in increased subsistence harvest opportunities for rural Alaskans. This final rule will also make nonsubstantive changes to present the list of submerged parcels in a tabular format. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective April 3, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Information regarding this final rule, including the Board meeting transcripts, are available for review at the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, AK 99503, or on the Office of Subsistence Management website ( <E T="03">https://www.doi.gov/subsistence/board</E> ). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Chair, Federal Subsistence Board, c/o U.S. Fish and Wildlife Service, Attention: Assistant Regional Director, Office of Subsistence Management; (907) 786-3888 or <E T="03">subsistence@fws.gov.</E> For questions specific to National Forest System lands, contact Gregory Risdahl, Regional Subsistence Program Leader, USDA, Forest Service, Alaska Region; (907) 302-7354 or <E T="03">gregory.risdahl@usda.gov.</E> Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> 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 (Program). The Program provides a preference for take of fish and wildlife resources for subsistence uses by rural residents on Federal public lands and waters in Alaska. The Secretaries published temporary regulations to carry out the Program in the <E T="04">Federal Register</E> on June 29, 1990 (55 FR 27114), and published final regulations in the <E T="04">Federal Register</E> on May 29, 1992 (57 FR 22940). These regulations have subsequently been amended a number of times. Because the 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 242.1-242.28 and 50 CFR 100.1-100.28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife. Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board (Board) to administer the Program. The Board comprises: • A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture; • The Alaska Regional Director, U.S. Fish and Wildlife Service; • The Alaska Regional Director, National Park Service; • The Alaska State Director, Bureau of Land Management; • The Alaska Regional Director, Bureau of Indian Affairs; • The Alaska Regional Forester, USDA Forest Service; and • Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture. Through the Board, these agencies participate in the development of regulations for subparts C and D, which, among other things, set forth Program eligibility and specific harvest seasons and limits. In administering the Program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Federal Subsistence Regional Advisory Council (Council). The Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Council members represent varied geographical, cultural, and user interests within each region. <HD SOURCE="HD1">Jurisdictional Background and Perspective</HD> The U.S. District Court for Alaska (Court) in its October 17, 2011, order in <E T="03">Peratrovich et al.</E> v. <E T="03">United States and the State of Alaska,</E> 3:92-cv-0734-HRH (D. Alaska), enjoined the United States “to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) with respect to submerged public lands within Tongass National Forest” and directed entry of judgment. The <E T="03">Peratrovich</E> case dates to 1992 and has a long and involved procedural history. The plaintiffs in that litigation raised the question of which marine waters in the Tongass National Forest, if any, are subject to the jurisdiction of the Federal Subsistence Management Program. In its May 31, 2011, order, 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.” It also stated that, 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.” Most of the marine waters within the Tongass National Forest were not initially identified in the regulations as public lands subject to the subsistence priority, initially based upon a determination that the submerged lands were State lands, and later through reliance upon a disclaimer of interest filed by the United States in <E T="03">Alaska</E> v. <E T="03">United States,</E> No. 128 Orig., 546 U.S. 413 (2006). In that case, the State of Alaska had sought to quiet title to all lands underlying marine waters in southeast Alaska, which includes most of the Tongass National Forest. Ultimately, the United States disclaimed ownership to most of the submerged lands in the Tongass National Forest. The Supreme Court accepted the disclaimer by the United States to title to the marine waters within the Tongass National Forest, excepting from that disclaimer several classes of submerged public lands that generally involve small tracts (see <E T="03">Alaska</E> v. <E T="03">United States,</E> 546 U.S. at 415). When the United States took over subsistence management in Alaska in 1990 and promulgated the temporary regulations, the Departments of the Interior and Agriculture stated in response to comments on the scope of the program that “[t]he United States generally does not hold title to navigable waters and thus navigable waters generally are not included within the definition of public lands” (55 FR 27114 at 27115; June 29, 1990). That position was changed in 1999 when the subsistence priority was extended to inland waters subject to a Federal reserved water right following the <E T="03">Katie John</E> litigation. While locating these inland waters, the Board also identified certain submerged marine lands that did not pass to the State and, therefore, were subject to the subsistence priority. However, the Board did not attempt to identify every small parcel of submerged public lands and associated marine waters possibly subject to the Program because of the potentially overwhelming administrative burden. Instead, the Board invited the public to petition to have submerged marine lands included. Over the years, several small areas of submerged marine lands in the Tongass National Forest have been identified as public lands subject to the subsistence priority. In its May 31, 2011, order, the Court in the <E T="03">Peratrovich</E> case stated that the petition process was not sufficient and found that “concerns about costs and management problems simply cannot trump the congressional policy that the subsistence lifestyle of rural Alaskans be preserved as to public lands.” 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.” The Court then 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 pub ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 115k characters. 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