Provisions Specific to Alaska

The Alaska National Interest Lands Conservation Act of 1980 (ANILCA) designated nearly 57 million acres of wilderness in Alaska, more than half of the entire NWPS. This Act contains two special provisions that allow for some public motorized uses in wilderness.

Subsistence:

One clear purpose of ANILCA is to “preserve wilderness resource values;” another purpose is “to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.”
In accordance with Sec. 811(a) of ANILCA, rural Alaskans are allowed to use snowmachines, motorboats, and “other means of surface transportation traditionally employed” for carrying out subsistence activities, including in wilderness.

The phrase “traditionally employed” is a qualifier, meaning that not every form of surface transportation is authorized, only those forms that were “traditionally employed” at the time Congress passed ANILCA in 1980. If Congress had intended to allow all types of surface transportation for subsistence activities, then ANILCA would have simply said, “and other means of surface transportation.” Period. By adding the “traditionally employed” qualifier, Congress clearly intended to limit the types of motorized transportation allowed for subsistence users.

There is good probability that ANILCA intended “other means of surface transportation traditionally employed” to mean dogsleds, a long-standing traditional form of transportation in Alaska, not the newly emerging technology of ATV’s.

ANILCA defines subsistence as follows:

Sec. 803: As used in this Act, the term “subsistence uses” means the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade.

A growing political and resource problem in Alaska is the question of whether all-terrain vehicles (ATV’s) are a valid form of “surface transportation traditionally employed” for subsistence. The first ATV’s came on the market in 1976, just four years prior to passage of ANILCA. Those early ATV’s were far less powerful and mobile than the ATV’s sold on the market today. The substantial advances in ATV technology have made today’s very powerful machines extremely popular with Native Alaskans and the state’s other rural residents. Today’s machines can travel significant distances over very rough terrain. Some large models weigh up to 1,200 pounds and have a dozen wheels to increase traction and stability on rugged landscape.

A 2003 NPS report on ATV use in Alaska national parks reports there are at least 700 miles of known routes, 50 percent of these in designated wilderness. Use is reported to be increasing. The report estimates that three-quarters of these known routes are used for both subsistence and recreation. Significant and permanent scarring of the fragile soils is spreading across the landscape in many locations. Rural residents carrying a rifle on their ATV can claim they are out subsistence hunting although it is widely known that much of the ATV use taking place is primarily recreational.

Traditional Activities:

Section 1110(a) of ANILCA allows snowmachines, motorboats, and airplanes as public transportation methods in Alaska wilderness for traditional activities, subject to regulation. If Congress had intended the use of these transportation methods for general public access, then they would not have written into law the conditional qualifier, “for traditional activities.” Instead, they would have simply written that snowmachines, motorboats, and airplanes are allowed as transportation methods within conservation units in Alaska. Period. But instead, Congress attached a conditional qualifier that allows motorized access only for certain types of activities.

In June 2000 the National Park Service issued a regulation that defined the term “traditional activities” for the Old Park portion of Denali National Park and Preserve:

“A traditional activity is an activity that generally and lawfully occurred in the Old Park contemporaneously with the enactment of ANILCA, and that was associated with the Old Park, or a discrete portion thereof, involving the consumptive use of one or more natural resources of the Old Park such as hunting, trapping, fishing, berry picking or similar activities. Recreational use of snowmachines was not a traditional activity. If a traditional activity generally occurred only in a particular area of the Old Park, it would be considered a traditional activity only in the area where it had previously occurred. In addition, a traditional activity must be a legally permissible activity in the Old Park.”

Partly in response to lawsuits filed against the Park Service by snowmobile interests in Alaska, extensive legislative research was done on the congressional intent of Section 1110(a) of ANILCA. The research indicates that Congress intended that “traditional activities” be linked to subsistence uses. In the legislative history, “traditional activities” and “subsistence” were often used interchangeably in discussion, suggesting that they meant the same thing or were very closely related. ANILCA’s legislative history demonstrates that Congress referenced only two recreational activities — sport hunting and fishing — as examples of the kinds of “traditional activities” covered by Sec. 1110(a), and paired these two with activities such as berrypicking, and travel between villages. These activities share the common attributes associated with a traditional rural way of life in Alaska, namely: harvest, sustenance, and getting home.

Section 1110(a) therefore does not guarantee motorized access for general recreation in Alaska wilderness. Evidence of this can be found in ANILCA’s enabling language for Kenai Fjords National Park, where Congress specifically authorized the Secretary to allow use of mechanized vehicles on the icefield for recreation. This suggests that such general motorized recreational use would not otherwise be permitted by ANILCA in other conservation units in Alaska, unless similarly specified in the designation language of each unit. If such access were automatically allowed under Sec. 1110(a) then Congress would not have felt compelled to make a specific allowance for it in Kenai Fjords’ designation language.

Where and when Congress intended to allow motorized access for general recreational activities, it was perfectly capable of saying so.

The legislative history also clearly indicates that motorized recreation as an activity in and of itself is not authorized by ANILCA. The intent of Section 1110(a) is to allow certain motorized vehicles as utilitarian transportation methods necessary to access traditional activities but were not intended to be an intrinsic part of the traditional activity. This means recreational snowmobiling in parks, wildlife refuges, and wilderness in Alaska is not authorized under ANILCA. The vehicle is intended for access, but cannot be inextricably part of the traditional activity itself.

ANILCA allows the public to use snowmachines, motorboats, airplanes, and non-motorized surface transportation methods in parks, refuges, and Alaska wilderness for “traditional activities” and travel to and from villages & homesites. The explicit reference to “non-motorized surface transportation methods” in this section offers some possibility that ANILCA also intended that the surface transportation methods allowed in Title VIII for subsistence would also be non-motorized.