Given the Board and Secretaries responsibility under Title VIII ANILCA—
- “The Congress finds and declares that in order to fulfill the policies and purposes of the Alaska Native Claims Settlement Act and as a matter of equity, it is necessary for the Congress to invoke its constitutional authority over Native affairs and its constitutional authority under the property clause and the commerce clause to protect and provide the opportunity for continued subsistence uses on the public lands by Native and non-Native rural residents;”
- ”provide the opportunity for continued subsistence uses on the public lands by Native and non-Native rural residents;”
- “the continuation of the opportunity for a subsistence way of life by residents of rural Alaska”
- “rural residents who have personal knowledge of local conditions and requirements
- “the utilization of the public lands in Alaska is to cause the least adverse impact possible on rural residents”
- “the purpose of this title is to provide the opportunity for rural residents engaged in a subsistence way of life to do so”
Like other programs managed by USDA, services under Title VIII of ANILCA have geographic limitations that restrict eligibility to rural areas. The current 5 characteristics that are used to determine a community rural are insufficient and not consistent with current rural demographic research. It would be easier and more efficient for the Board to use characteristics that are consistent with the Congressionally-mandated federal services delivered to rural communities, such as those used by USDA and Health and Human Services which are statistically-derived, geographically based, and uniformly applied land-use classifications.
There is no general characteristic of rural heritage or ruralness which is consistent, widely acceptable, and reproducible. “Characteristics” of rural communities is an inadequate and unfair subjective classification scheme. Classification of rural residents should be based upon the standard of geographic remoteness.
ANILCA does not require consumptive use of lands and especially does not require a set percentage of consumptive use. Thus these criteria cannot be used.
The 9th Circuit Court struck down the State of Alaska’s approach to defining rural areas by use of natural resources. The State’s definition of “rural” included only those areas dominated by subsistence fishing and hunting, while excluding areas dominated primarily by a cash economy even if a substantial portion of that area’s residents engaged in subsistence activities. The Court said that “Congress did not limit the benefits of [Title VIII] to areas dominated by a subsistence economy. Instead, it wrote broadly, giving the statutory priority to all subsistence users residing in rural areas.”
Current criteria are from the early 1980s. These figures are actually sub-classifications of rural communities and are not applied to urban areas, except by the Board in prior regulation. The current criteria come from efforts to subclassify rural communities into types based upon administrative units (and not upon geography and landuse). In their original context, they are not used to create urbanized areas. Therefore, community aggregation is unneeded and should not occur.
The Board is currently required to “review” determinations. The Board doesn’t seem to be required under ANILCA VIII to “determine” every 10 years, or ever.
To “review” existing determinations, they should use the final Decennial Census figures to see if any rural community has increased its population significantly (e.g., more than 25%).
Within the few Census Urbanized Areas and urban clusters, there may be non-urban communities or “Census places”. These areas may petition the Subsistence Board to be designated as “rural” for consumptive use of federal lands after the decennial census is completed. The Board shall review petitioner enclaves in a manner similar to the way federal government determines this in other programs.
Suggested regulations to replace the existing regs http://www.law.cornell.edu/cfr/text/36/242.15 retrieved, October 24, 2013 36 CFR 242.15 – Rural determination process.–Suggested
• Population data from the most recent Decennial Census conducted by the United States Bureau of Census as finalized shall be utilized in this process.
• Communities already designated as rural for purposes of ANILCA Title VIII by the Board or by Congress and the Secretaries of Interior and Agriculture remain rural.
• Communities smaller than those always considered nonrural under ANILCA VIII will remain rural.
• Only those rural areas defined geographically which manifest an increase in population greater than 25% shall be subject to further review and determination for subsistence access.
• The Subsistence Board, if petitioned by the relevant geographic communities, shall determine which, if any, urban areas have sub-units which may be eligible for rural services, i.e., subsistence under ANILCA VIII
• A period of five years shall be required before the converted to nonrural status becomes effective.
• No area determined as “Frontier or Remote” for purposes of federal services should be determined urban or “non-rural” by the Subsistence Board.
• (c) Currently ineligible residents are listed at _____.23.