Saxman sues federal officials over non-rural status
August 06, 2014
Only those residents of communities identified by the Federal Subsistence Board (FSB) as rural are eligible for Alaska National Interest Lands Conservation Act's (ANILCA's) subsistence priority. By grouping Saxman with Ketchikan, the 2007 final rule removed Saxman's rural status and effectively eliminates Saxman's priority for subsistence uses thus denying residents of Saxman continued access to the subsistence resources they have depended on as a mainstay of their livelihood.
Organized Village of Saxman
Representing the plaintiff are Heather R. Kendall-Miller, Erin C. Dougherty and Matthew N. Newman of the Native American Rights Fund based in Anchorage, Alaska. The Organized Village of Saxman is a federally recognized tribe and represents the interests of its tribal members, the majority of who comprise the community of Saxman. Named as defendants and sued in their official capacity are Tim Towarak, Chairman of the Federal Subsistence Board (FSB); Sally Jewell, Secretary of the U.S. Department of the Interior; and Tom Vilsack, Secretary of the U.S. Department of Agriculture. Saxman is an Alaska Native village located on the southern end of Revillagigedo Island in Southeast Alaska. The Organized Village of Saxman is a federally recognized Indian Tribe structured under the Indian Reorganization Act of 1934. OVS’s members are the descendants of the Tlingit clans and kwaans of the Cape Fox and Tongass Tribes, who have resided in Southeast Alaska since time immemorial. The Cape Fox and Tongass Tribes moved to the area now known as Saxman from Cape Fox Village and Tongass Island Village beginning in the 1890s. Since its settlement, Saxman has maintained a distinct cultural and political identity from other communities in Southeast Alaska. In 1907, President Theodore Roosevelt conveyed by executive order forty-acres of land to Saxman for a school. Exec. Order No. 626 (May 4, 1907). Since 1912, Saxman has maintained its own Alaska Native Brotherhood and Sisterhood camps separate from neighboring Ketchikan. Saxman incorporated its own municipality in 1929. Since its settlement, Saxman’s residents have continually engaged in the customary and traditional harvests of wild, renewable resources for their own use as food, shelter, fuel, clothing, tools, and transportation. One of the FSB's described powers and duties is to "determine which communities or areas of the State are rural or non-rural." Although not a statutory requirement, the regulation provide that rural determination be review on a 10-year cycle. In determining whether a community or area in Alaska is "rural", the FSB is required to follow guidelines that establish that a community with a population of 2,500 or less is considered rural, unless it "possesses significant characteristics of a non-rural nature or is considered to be social and economically part of an urbanized area". there are no guidelines on how communities should be evaluated for grouping with other communities. In 1990, although Saxman met the three "socially and economically integrated" criteria to be groped with Ketchikan, the Federal Subsistence Board (FSB) determined that Saxman was a rural community for the purpose of subsistence on federal lands. At the time, the FSB found Saxman to be a rural community because of Saxman's "overriding socioeconomic and cultural characteristics". In 2005, the Office of Subsistence Management (OSM) staff conducted an initial review of the rural status of Alaska communities using 2000 census data "with an emphasis on what had changed since 1990". After this review, Saxman appeared on a list of Alaska communities for which further analysis appeared to be necessary. Federal Subsistence Board took public testimony in December 2005 and determined addition information and analysis was needed for ten communities including Saxman. In June 2006, the Office of Subsistence Management published their analysis, which laid out social and economic characteristics that indicated Saxman should not be grouped with Ketchikan. However, on June 22, 2006, the Federal Subsistence Board met in executive session to develop the list of Alaska communities they believed to be non-rural. Based on that review, the Federal Subsistence Board published a proposed rule on August 14, 2006, finding that Saxman should not be groped with Ketchikan and that Saxman retain its rural status. The proposed rule noted Saxman to be "socially and politically separate from Ketchikan". Despite the overwhelming weight of written comments, public testimony at multiple FSB meetings, and Southeastern Alaska Federal Subsistence Regional Advisory Council’s recommendation in favor of retaining Saxman’s rural status, the Federal Subsistence Board ignored its proposed rule of August 16, 2006, and voted to group Saxman with Ketchikan at its public meeting on December 13, 2006. Saxman was reclassified as a non-rural community and Saxman residents lost their subsistence priority under ANILCA. The decision became final on June 06, 2007. Requests by Saxman for reconsideration were rejected. Among the relief sought by Saxman, the Court is asked to enter a declaratory judgment that the Defendants' designation of Saxman as non-rural is in violation of ANILCA and the Administrative Procedure Act (APA) and to declare the Final Rule invalid.
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