16 U.S.C. § 3115 — Local and regional participation

Page 2236 TITLE 16—CONSERVATION § 3114 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 cus- tomary trade. For the purposes of this section, the term— (1) ‘‘family’’ means all persons related by blood, marriage, or adoption, or any person living within the household on a permanent basis; and (2) ‘‘barter’’ means the exchange of fish or wildlife or their parts, taken for subsistence uses— (A) for other fish or game or their parts; or (B) for other food or for nonedible items other than money if the exchange is of a limited and noncommercial nature. (Pub. L. 96–487, title VIII, § 803, Dec. 2, 1980, 94 Stat. 2423; Pub. L. 105–83, title III, § 316(b)(4), (d), Nov. 14, 1997, 111 Stat. 1593, 1595.) Editorial Notes REFERENCES IN TEXT This Act, referred to in provision preceding par. (1), is Pub. L. 96–487, Dec. 2, 1980, 94 Stat. 2371, known as the Alaska National Interest Lands Conservation Act. For complete classification of this Act to the Code, see Short Title note set out under section 3101 of this title and Tables. AMENDMENTS 1997—Pars. (3) to (5). Pub. L. 105–83, § 316(b)(4), which directed the addition of pars. (3) to (5) was repealed by Pub. L. 105–83, § 316(d). Pars. (3) to (5) read as follows: ‘‘(3) ‘customary and traditional uses’ means the non- commercial, long-term, and consistent taking of, use of, or reliance upon fish and wildlife in a specific area and the patterns and practices of taking or use of that fish and wildlife that have been established over a rea- sonable period of time, taking into consideration the availability of the fish and wildlife; ‘‘(4) ‘customary trade’ means, except for money sales of furs and furbearers, the limited noncommercial ex- change for money of fish and wildlife or their parts in minimal quantities; and ‘‘(5) ‘rural Alaska resident’ means a resident of a rural community or area. A ‘rural community or area’ means a community or area substantially dependent on fish and wildlife for nutritional and other subsistence uses.’’ See Effective and Termination Dates of 1997 Amendment note below. Statutory Notes and Related Subsidiaries EFFECTIVE AND TERMINATION DATES OF 1997 AMENDMENT Until laws are adopted in Alaska which provide for definition, preference, and participation specified in sections 3113 to 3115 of this title, amendment by Pub. L. 105–83 was effective only for purpose of determining whether State’s laws provide for such definition, pref- erence, and participation, and such amendment was re- pealed on Dec. 1, 1998, because such laws had not been adopted, see section 316(d) of Pub. L. 105–83 set out as a note under section 3102 of this title. § 3114. Preference for subsistence uses Except as otherwise provided in this Act and other Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other pur- poses. Whenever it is necessary to restrict the taking of populations of fish and wildlife on such lands for subsistence uses in order to pro- tect the continued viability of such populations, or to continue such uses, such priority shall be implemented through appropriate limitations based on the application of the following cri- teria: (1) customary and direct dependence upon the populations as the mainstay of livelihood; (2) local residency; and (3) the availability of alternative resources. (Pub. L. 96–487, title VIII, § 804, Dec. 2, 1980, 94 Stat. 2423; Pub. L. 105–83, title III, § 316(b)(5), (d), Nov. 14, 1997, 111 Stat. 1593, 1595.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is Pub. L. 96–487, Dec. 2, 1980, 94 Stat. 2371, known as the Alaska National Inter- est Lands Conservation Act. For complete classifica- tion of this Act to the Code, see Short Title note set out under section 3101 of this title and Tables. AMENDMENTS 1997—Pub. L. 105–83, § 316(b)(5), which directed the des- ignation of existing provisions as subsec. (a) and the addition of subsec. (b) reading as follows: ‘‘The priority granted by this section is for a reasonable opportunity to take fish and wildlife. For the purposes of this sub- section, the term ‘reasonable opportunity’ means an opportunity, consistent with customary and traditional uses (as defined in section 3113(3) of this title), to par- ticipate in a subsistence hunt or fishery with a reason- able expectation of success, and does not mean a guar- antee that fish and wildlife will be taken.’’ was re- pealed by Pub. L. 105–83, § 316(d). See Effective and Ter- mination Dates of 1997 Amendment note below. Statutory Notes and Related Subsidiaries EFFECTIVE AND TERMINATION DATES OF 1997 AMENDMENT Until laws are adopted in Alaska which provide for definition, preference, and participation specified in sections 3113 to 3115 of this title, amendment by Pub. L. 105–83 was effective only for purpose of determining whether State’s laws provide for such definition, pref- erence, and participation, and such amendment was re- pealed on Dec. 1, 1998, because such laws had not been adopted, see section 316(d) of Pub. L. 105–83 set out as a note under section 3102 of this title. § 3115. Local and regional participation (a) Establishment of subsistence resources re- gions, local advisory committees, and re- gional advisory councils; membership, du- ties, and authority of regional advisory coun- cils Except as otherwise provided in subsection (d) of this section, the Secretary in consultation with the State shall establish— (1) at least six Alaska subsistence resource regions which, taken together, include all pub- lic lands. The number and boundaries of the regions shall be sufficient to assure that re- gional differences in subsistence uses are ade- quately accommodated; (2) such local advisory committees within each region as he finds necessary at such time as he may determine, after notice and hearing, that the existing State fish and game advisory Page 2237 TITLE 16—CONSERVATION § 3115 committees do not adequately perform the functions of the local committee system set forth in paragraph (3)(D)(iv) of this subsection; and (3) a regional advisory council in each sub- sistence resource region. Each regional advisory council shall be com- posed of residents of the region and shall have the following authority: (A) the review and evaluation of proposals for regulations, policies, management plans, and other matters relating to subsistence uses of fish and wildlife within the region; (B) the provision of a forum for the expres- sion of opinions and recommendations by per- sons interested in any matter related to sub- sistence uses of fish and wildlife within the re- gion; (C) the encouragement of local and regional participation pursuant to the provisions of this subchapter in the decisionmaking process affecting the taking of fish and wildlife on the public lands within the region for subsistence uses; (D) the preparation of an annual report to the Secretary which shall contain— (i) an identification of current and antici- pated subsistence uses of fish and wildlife populations within the region; (ii) an evaluation of current and antici- pated subsistence needs for fish and wildlife populations within the region; (iii) a recommended strategy for the man- agement of fish and wildlife populations within the region to accommodate such sub- sistence uses and needs; and (iv) recommendations concerning policies, standards, guidelines, and regulations to im- plement the strategy. The State fish and game advisory committees or such local ad- visory committees as the Secretary may es- tablish pursuant to paragraph (2) of this sub- section may provide advice to, and assist, the regional advisory councils in carrying out the functions set forth in this paragraph. (b) Assignment of staff and distribution of data The Secretary shall assign adequate qualified staff to the regional advisory councils and make timely distribution of all available relevant technical and scientific support data to the re- gional advisory councils and the State fish and game advisory committees or such local advi- sory committees as the Secretary may establish pursuant to paragraph (2) of subsection (a). (c) Consideration of reports and recommenda- tions of regional advisory councils The Secretary, in performing his monitoring responsibility pursuant to section 3116 of this title and in the exercise of his closure and other administrative authority over the public lands, shall consider the report and recommendations of the regional advisory councils concerning the taking of fish and wildlife on the public lands within their respective regions for subsistence uses. The Secretary may choose not to follow any recommendation which he determines is not supported by substantial evidence, violates rec- ognized principles of fish and wildlife conserva- tion, or would be detrimental to the satisfaction of subsistence needs. If a recommendation is not adopted by the Secretary, he shall set forth the factual basis and the reasons for his decision. (d) Supersedure by enactment and implementa- tion of State laws governing State responsi- bility; consideration of recommendations by State rulemaking authority The Secretary shall not implement sub- sections (a), (b), and (c) of this section if the State enacts and implements laws of general ap- plicability which are consistent with, and which provide for the definition, preference, and par- ticipation specified in, sections 3113, 3114, and 3115 of this title, such laws, unless and until re- pealed, shall supersede such sections insofar as such sections govern State responsibility pursu- ant to this subchapter for the taking of fish and wildlife on the public lands for subsistence uses. Laws establishing a system of local advisory committees and regional advisory councils con- sistent with this section shall provide that the State rulemaking authority shall consider the advice and recommendations of the regional councils concerning the taking of fish and wild- life populations on public lands within their re- spective regions for subsistence uses. The re- gional councils may present recommendations, and the evidence upon which such recommenda- tions are based, to the State rulemaking author- ity during the course of the administrative pro- ceedings of such authority. The State rule- making authority may choose not to follow any recommendation which it determines is not sup- ported by substantial evidence presented during the course of its administrative proceedings, violates recognized principles of fish and wildlife conservation or would be detrimental to the sat- isfaction of rural subsistence needs. If a rec- ommendation is not adopted by the State rule- making authority, such authority shall set forth the factual basis and the reasons for its deci- sion. (e) Reimbursement to State; limitation; report to Congress (1) The Secretary shall reimburse the State, from funds appropriated to the Department of the Interior for such purposes, for reasonable costs relating to the establishment and oper- ation of the regional advisory councils estab- lished by the State in accordance with sub- section (d) and the operation of the State fish and game advisory committees so long as such committees are not superseded by the Secretary pursuant to paragraph (2) of subsection (a). Such reimbursement may not exceed 50 per centum of such costs in any fiscal year. Such costs shall be verified in a statement which the Secretary de- termines to be adequate and accurate. Sums paid under this subsection shall be in addition to any grants, payments, or other sums to which the State is entitled from appropriations to the Department of the Interior. (2) Total payments to the State under this subsection shall not exceed the sum of $5,000,000 in any one fiscal year. The Secretary shall ad- vise the Congress at least once in every five years as to whether or not the maximum pay- ments specified in this subsection are adequate to ensure the effectiveness of the program estab- lished by the State to provide the preference for Page 2238 TITLE 16—CONSERVATION § 3116 subsistence uses of fish and wildlife set forth in section 3114 of this title. (Pub. L. 96–487, title VIII, § 805, Dec. 2, 1980, 94 Stat. 2424; Pub. L. 105–83, title III, § 316(b)(6), (d), Nov. 14, 1997, 111 Stat. 1593, 1595; Pub. L. 105–277, div. A, § 101(e) [title III, § 339(c)], Oct. 21, 1998, 112 Stat. 2681–231, 2681–296.) Editorial Notes AMENDMENTS 1998—Subsec. (a). Pub. L. 105–277, § 101(e) [title III, § 339(c)(1)], struck out ‘‘one year after December 2, 1980,’’ before ‘‘the Secretary’’ in introductory provi- sions. Subsec. (d). Pub. L. 105–277, § 101(e) [title III, § 339(c)(2)], struck out ‘‘within one year from December 2, 1980,’’ before ‘‘the State enacts’’ in first sentence. 1997—Subsec. (a). Pub. L. 105–83, § 316(b)(6)(A), which directed the amendment of subsec. (a) by striking out ‘‘one year after December 2, 1980,’’ before ‘‘the Sec- retary’’ in introductory provisions, was repealed by Pub. L. 105–83, § 316(d). See Effective and Termination Dates of 1997 Amendment note below. Subsec. (d). Pub. L. 105–83, § 316(b)(6)(B), which di- rected the amendment of subsec. (d) generally to pro- vide for supersedure by enactment and implementation of State laws governing State responsibility, consider- ation of recommendations by State rulemaking author- ity, and for the creation of regional advisory councils, was repealed by Pub. L. 105–83, § 316(d). See Effective and Termination Dates of 1997 Amendment note below. Statutory Notes and Related Subsidiaries EFFECTIVE AND TERMINATION DATES OF 1997 AMENDMENT Until laws are adopted in Alaska which provide for definition, preference, and participation specified in sections 3113 to 3115 of this title, amendment by Pub. L. 105–83 was effective only for purpose of determining whether State’s laws provide for such definition, pref- erence, and participation, and such amendment was re- pealed on Dec. 1, 1998, because such laws had not been adopted, see section 316(d) of Pub. L. 105–83 set out as a note under section 3102 of this title. TERMINATION OF ADVISORY COUNCILS Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the Presi- dent or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by the Congress, its duration is oth- erwise provided for by law. See sections 1001(2) and 1013 of Title 5, Government Organization and Employees. § 3116. Federal monitoring; reports to State and Congressional committees The Secretary shall monitor the provisions by the State of the subsistence preference set forth in section 3114 of this title and shall advise the State and the Committees on Natural Resources and on Merchant Marine and Fisheries of the House of Representatives and the Committees on Energy and Natural Resources and Environ- ment and Public Works of the Senate annually and at such other times as he deems necessary of his views on the effectiveness of the imple- mentation of this subchapter including the State’s provision of such preference, any exer- cise of his closure or other administrative au- thority to protect subsistence resources or uses, the views of the State, and any recommenda- tions he may have. (Pub. L. 96–487, title VIII, § 806, Dec. 2, 1980, 94 Stat. 2425; Pub. L. 103–437, § 6(y), Nov. 2, 1994, 108 Stat. 4587.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–437 substituted ‘‘the Committees on Natural Resources’’ for ‘‘Committee on Interior and In- sular Affairs’’. Statutory Notes and Related Subsidiaries ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treat- ed as referring to Committee on Resources of House of Representatives in case of provisions relating to fish- eries, wildlife, international fishing agreements, ma- rine affairs (including coastal zone management) ex- cept for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. § 3117. Judicial enforcement (a) Exhaustion of administrative remedies; civil action; parties; preliminary injunctive relief; other relief; costs and attorney’s fees Local residents and other persons and organi- zations aggrieved by a failure of the State or the Federal Government to provide for the priority for subsistence uses set forth in section 3114 of this title (or with respect to the State as set forth in a State law of general applicability if the State has fulfilled the requirements of sec- tion 3115(d) of this title) may, upon exhaustion of any State or Federal (as appropriate) admin- istrative remedies which may be available, file a civil action in the United States District Court for the District of Alaska to require such ac- tions to be taken as are necessary to provide for the priority. In a civil action filed against the State, the Secretary may be joined as a party to such action. The court may grant preliminary injunctive relief in any civil action if the grant- ing of such relief is appropriate under the facts upon which the action is based. No order grant- ing preliminary relief shall be issued until after an opportunity for hearing. In a civil action filed against the State, the court shall provide relief, other than preliminary relief, by direct- ing the State to submit regulations which sat- isfy the requirements of section 3114 of this title; when approved by the court, such regula- tions shall be incorporated as part of the final judicial order, and such order shall be valid only for such period of time as normally provided by State law for the regulations at issue. Local residents and other persons and organizations who are prevailing parties in an action filed pur- suant to this section shall be awarded their costs and attorney’s fees.