preference would be based on Article VIII, section 4 of the Alaska Constitution, allowing for preferences among beneficial uses of the state's natural resources. In summary, it is unlikely that a state statute or regulation that specifically creates a special privilege for Alaska Natives to hunt marine mammals would be upheld under the state of federal Constitutions. This does not imply, however, that the state could not adopt a non-racially based regulation that met Alaskan Natives' subsistence and cultural needs. It is beyond the reach of this memorandum to discuss whether such non-racially based regulations could be considered consistent with the Marine Mammal Protection Act and approved by the Secretary under 16 U.S.C. § 1379. I hope this answers your questions; if you have any further inquiries please do not hesitate to contact this office. WALRUS IN BERING SEA FEARED OUTSTRIPPING FOOD SUPPLY The Pacific walrus population of the Bering Sea may have reached or exceeded the level where it can find adequate food, according to a report prepared for the National Oceanic and Atmospheric Administration (NOAA). Indications of these population pressures include more than 100 dead walruses discovered last November and December on Alaska's St. Lawrence Island in an area not normally used by walrus in their migration. In addition, scores of unexplained aborted fetuses and large numbers of "very lean" animals also were found on the island. "The walrus population is much larger than it has been for a long time," explained Dr. Francis H. Fay, a principal investigator working for NOAA's Outer Continental Shelf Environmental Assessment Program. "In the mid-1800's about 200,000 walrus were estimated to exist; their numbers decreased to 40,000 or 50,000 in the 1950's, and then increased again to 200,000 in 1975." St. Lawrence Islanders, who depend to a large extent upon the walrus resource for their existence, fear that the walrus population will decline drastically the way a herd of reindeer did 30 years ago, said Fay, a researcher with the University of Alaska's Institute of Marine Science. After placement on the island about 1900, the reindeer increased to about 10,000 head and then "declined sharply" because of dwindling food supplies in 1948 to about 100 animals. "I share the islanders' concern," Fay added. The Alaska Marine biologist noted that recent changes from population patterns of the 1950's and 1960's and the increasing number of very thin animals suggest that the Pacific walrus population has had some difficulty finding adequate food-principally clams-in its former haunts. "The unusual aspects of the situation are the presence of such large numbers of walrus on the island in the fall and winter of 1978-79, in locations not used within at least the past half-century," Fay said. "These circumstances suggest that major changes may be occurring due to population pressure." According to Fay, the number of deaths on St. Lawrence Island is not unusual for the estimated 50,000 to 60,000 walruses which came ashore during their annual migration south for the winter. From previous research he estimates that about 2 percent die of natural causes each year. But the reason for the large number of aborted walrus fetuses is not known. Fay's account of walrus deaths appeared in a report to the Outer Continental Shelf Environmental Assessment Program. OCSEAP, managed by NOAA for the Interior Department's Bureau of Land Management, seeks to determine the probable ecological impacts of oil exploration and development on Alaska's outer continental shelf. Alaska Department of Fish and Game biologists mark a spotted seal pup as part of the studies of movement and distribution. The current management of this and other marine mammal species is the subject of continuing dispute. ADF&G photo by John J. Burns ( complex mechanism for resumption of management by a state at such time as the proposed state program is approved by appropriate federal authorities. The significance of marine mammals is perhaps greater in Alaska than in any other coastal state. We have a greater array of species with large populations of most. The Alaska request for return f management of ten species and for waiver of the "moratorium" on taking was submitted to FWS and NMFS in January 1973; less than one month after the effective date of the MMPA. Thus began one of the more incredible attempts to grope through a multi-tiered legal and bureaucratic maze. After almost seven years of continuous efforts, the end is still not in sight. To put the issues in perspective, it is perhaps helpful to indicate why the state has such a great concern for the ten species which are subjects of our waiver request. They represent only about one-third of the total number of marine mammal species which occur in our waters. Some of Alaska's marine mammals were and remain subject to protective international treaties, with attendant federally sponsored rograms of research management. .nese include the fur seal (harvested on the Pribilof Islands) and the great whales (of which bowhead and gray whales are hunted by Alaskans). There is little advantage to a duplication of effort on these species in view of limited manpower and funds. Other species such as the beaked whales and porpoises are not subject to significant harvest by Alaskans and mostly reside in the high seas. These mammals, although very important, are not significantly affected by Alaskans. In contrast, the ten species requested by the state are those which 1) are ecologically significant functioning elements in our coastal zone, 2) could be directly and significantly affected by Alaskans (through development in the coastal zone, Commercial fishing, direct harvesting, tc.), 3) contribute significantly to regional health and welfare (such as in subsistence, commercial or sport harvests, or taking for purposes of creating authentic articles of Native Page 2 "Delegation of management authority to the state of Alaska which is committed to the principal of protection of marine mammals, is basically desirable because Alaska is well equipped in most every way to undertake such management. Also, because the current federal administration of the Marine Mammal Protection Act is inadequate and tends to exercise management in name only." handicraft), and 4) are those for which the state had already developed management programs and scientific expertise. In the almost seven years since passage of the MMPA, no management program for these species has been developed by the responsible federal agencies. What progress has been made since 19767 The Pacific walrus was considered separately from the other species included in Alaska's request. Return of management for walruses was granted in April 1976. The federally imposed terms of the return were marginally acceptable and based on a population size estimate derived in 1970. The state was required to impose a maximum harvest quota of 3,000 animals and to meet an annual reporting schedule which required a body of information difficult or impossible to obtain (and which was (is) not being obtained by the federal agencies for the species under their jurisdiction). Nonetheless, a partial waiver had been accomplished. The "waiver process" had been tested and a decision reached. Within one week of resuming walrus management, the Board of Game and the Alaska Department of Fish and Game instituted a program which was in effect during the 1976 spring hunting season and, with modification, continued through June 1979. Administrative law hearings on the remaining nine species were conducted during the summer and autumn of 1976 and the Administrative Law Judge, Malcom P. Littlefield, issued his recommended decision on 30 June 1977. Although overly long in its coming, it was favorable to the state. The marine mammal populations in question were found to be at healthy levels. The state's proposed program was found to be acceptable and, in the judge's opinion, preferable to that of the federal agencies. In some rather pointed comments in his decision, the judge found significantly more benefits to the mammals under state rather than federal management. He concluded that: "Delegation of management authority to the state of Alaska which is committed to the principle of protection of marine mammals, is basically desirable because Alaska is well equipped in most every way to undertake such management. Also, because the current federal administration of the Marine Mammal Protection Act is inadequate and tends to exercise management in name only." The situation appeared to be approaching an actual decision by the appropriate federal authorities. However, we were to learn that there were many seemingly difficult steps to be taken before a decision on the overall waiver would be made. A twovolume environmental impact statement, largely favorable to state management, was released in March 1978. In the meantime, things were not going well with state management of walruses under the imposed federal guidelines. Eskimo walrus hunters and the scientists were well aware that the walrus population was large and increasing. Both were seeing signs indicative of stress in the walrus population. Results of a joint U.S./USSR survey conducted in autumn 1975 became available and indicated a probable population level of about 200,000 animals or 60,000 more than the estimate on which the federally imposed quota was based. The hunters wanted to harvest more animals and couldn't understand why the quota could not be changed in view of their needs and the interpretation of a possible future crash in the population. In its 1977 Annual Status Report on Walrus, the state requested that the 1975 population estimate of walruses, derived by the Fish and Wildlife Service, be incorporated in the record as updated information, and the quota be reconsidered. Result-no action. The state then informally inquired about officially requesting a change in the federally imposed quota, in view of new scientific information and on Jehalf of the Eskimo hunters. We were advised not to make such an official request. The reasons given seemed logical at the time and went something like this: the walrus waiver was accomplished; the waiver on the other species was "in the mill" and seemingly moving along; an official request for a change in the quota on walruses would require retracing all of the steps necessary to renegotiate the walrus waiver; it was desirable not to "rock the boat" at that particular time and until the "bigger issues were settled; it was indicated that a decision on waiver of species other than walruses would probably be made within six months. Basically, it appeared desirable to accomplish the waiver in its entirety before renegotiating the specific point in the walrus waiver. The result was that nothing happened. Additional issues developed. A class action suit was filed against the Department of Interior by the people of Togiak and Bristol Bay, challenging, in effect, two things; 1) the legality of a federal agency returning management for subsistence hunting to the state, and 2) the state regulations which they claimed eliminated the possibility of their traditional and continued subsistence dependence on walruses. The original focal point of this case was the Walrus island State Game Sanctuary. The preliminary ruling in this case, by Judge Green, strongly indicated that there was probably no legal basis for a federal agency to convey authority to a state which would result in state regulation of subsistence hunting. The federal agencies now apparently agree that they have no legal basis to empower the state with regulatory authority over Native hunting. This is in contrast to their previous position and with their return of walrus management to the state in April 1976. stato original request for a waiver and resumption of management. Management would be returned if the state agreed to prescribed federal rules and regulations. These were "more of the same" and were unacceptable. After all, the walrus fiasco was a vivid lesson in how not to do things. The state's efforts had sustained nother major setback and Alaska was aced with three options: 1) to accept requirements which it may not be possible to meet; 2) to attempt to renegotiate the federal rules and regulations; or 3) to drop the whole issue and hope that a federal program will eventually be put together. This setback required our reevaluation of the walrus waiver, as little progress was being made on any front. The situation was untenable. The larger waiver issue was far from resolution as was immediate action to rectify the walrus situation. The state decided to return management authority over walruses to the federal government thus releasing its Native hunters from unrealistic hunting restrictions and resuming the federal program of "management in name only." It was requested that walruses be returned to federal jurisdiction and considered as art of the overall waiver still pending, and that we not be forced to continue a single species management program. The total absurdity of this entire situation is exemplified by the exercise necessary for returning management to the federal government. Although the MMPA prescribes all of the steps by which the federal government can strip authority from a state if said state does not perform as required, there is no orderly mechanism by which a state can voluntarily return management if their federal overseers perform unsatisfactorily in this "management partnership." In order to return management, a state is essentially obliged to purposely place itself in noncompliance with federal rules and regulations, thus forcing the federal government to abolish the waiver. Vlaska, unfortunately, felt it necessary to take that action. In June 1979 the Alaska Department of Fish and Game, after approval by the Board of Game, adopted an emergency regulation eliminating restrictions on seasons and Page 4 Given enough time, money, and manpower, any management agency can eventually do the job. The state, by virtue of the great importance of walruses (and other marine mammals! to its residents, wants and is still seeking to resume management. There are programs virtually in place to do so, but with no financial support or resolution of legal and jurisdictional problems. bag limits for walrus. The U.S. Fish and Wildlife Service disapproved of these emergency regulations and resumed "management" of walruses in August 1979. There are those who accuse the state of attempting to embarrass the Fish and Wildlife Service by giving them a "hot potato" and then standing by to watch that agency struggle with the problem. This is far from fact. Given enough time, money, and manpower, any management agency can eventually do the job. The state, by virtue of the great importance of walruses (and other marine mammals) to its residents, wants and is still seeking to resume management. There are programs virtually in place to do so, but with no financial support or resolution of legal and jurisdictional problems. Walruses are not separate and apart from the other components of the marine system they occupy. The state has taken this action in an attempt to request decision makers to consider the broad aspects of marine mammal management and to develop a flexible, workable management regime based on ecological rather than strictly legalistic guidelines. Where are we now? Frankly, I don't know. However, I do know that the most rudimentary kinds of management information are no longer being obtained. In the hope of resuming a viable marine mammal research and management program, the state, among other things, retained a marine mammal staff, continued its research program, and continued to monitor annual magnitude of seal harvests from 1973 until August 1978 (largely at its own expense). The walrus harvest monitoring effort ceased in August 1979. Biological data gaps are becoming increasingly wider and the marine mammal staff of the state will be disbanded, perhaps over the next year and a half. We are still pursuing the waiver, formulating a management program, and awaiting a final decision in the Togiak case. The subjects of all this controversy have been, to date, perhaps only slightly affected. Ironically, while this long process has dragged on, requiring millions of dollars and thousands of man hours, little of it has been spent on learning more about the marine mammals and their management needs. Exceptions to this include research on walruses by the University of Alaska, a Fish and Wildlife Service research program, mainly directed toward sea otters, and a broad program of marine research, including studies of marine mammals conducted by state Fish and Game personnel under contract to the federally sponsored (BLM-NOAA) Outer Continental Shelf Environmental Assessment Program. What will the immediate future bring? My guess is, more of the same. Kerns on Leave of Absence Curt Kerns, Aquaculture Specialist for the Marine Advisory Program and Author of the Aquaculture News Briefs column in Alaska Seas and Coasts has taken a year's leave of absence from the University of Alaska. While on leave he is serving as Operations Manager for the Prince William Sound Aquaculture Corporation. His address is P.O. Box 1110, Cordova, AK 99574. 83-516 0-81--3 |