In response to requests from more than 40 tribes in the region, on Dec. 9 President Obama issued an executive order creating the Northern Bering Sea Climate Resilience Area. It is clear that the action has much support and has inspired much fear. It is much less clear that those espousing the fear have actually read or fully understood the order.
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In a commentary published earlier this month, Harry Lincoln provided an eloquent description of the region and the reasons this action was so broadly supported. I cannot improve on those words but, as counsel to 40 of the tribes that requested this action from the president, I can help dispel the fear and misconceptions that are out there about the Northern Bering Sea Climate Resilience Area.
At the outset, let's be clear: The executive order applies only to federal waters. It does not affect the state of Alaska's management or lands within the state, does not preclude development of coastal resources or infrastructure, and is tailored specifically to protect existing uses like fisheries. In fact, this order really is about protecting Alaskans – their ability to eat, earn a living and continue their ways of life – in the face of dramatic changes inflicted upon them. It has come about because tribes and communities are concerned about their future, have done the scientific research to show the importance of the region, and want to find a way for those most affected by management choices made by the federal government to have a seat at the table.
To best understand the order, let's look at it section by section.
First, the stated purposes are clear: to protect subsistence (stated twice in the first section) and incorporate traditional knowledge into the decisions that affect this body of water. In other words, the intent of the order is to protect the ability to hunt and fish for your food, and to make sure that local people can add their two cents about the changes they experience while hunting.
Section 2 is the "policy" section basically stating the goals — to protect subsistence and the ecosystem that supports the subsistence targets and, in so doing, coordinate with the state of Alaska.
Section 3 seems to be where most people stopped reading. Here, the president withdraws part of the area from oil or gas leasing. A lot of the news coverage focused on this and some people seem to assume that all areas of the ocean are equally valuable in terms of resource availability.
Not so. This withdrawal is in the Bering Sea, not the Beaufort or Chukchi. Companies looked for oil in the area in the 1980s and didn't find anything worth pursuing. However, there was so much opposition to drilling in the region that the tribes brought suit against the Department of Interior in an effort to stop oil and gas activity because of concerns about the impacts to subsistence. In the nearly 40 years since, there has been no industry interest in the withdrawn area, demonstrating that it is not commercially viable for oil.
Other areas within the Northern Bering Sea Climate Resilience Area were not withdrawn to accommodate the potential for industry interest in the future.
The executive order takes a measured approach to protect the truly valuable resources in this region — the marine mammals, which migrate through this area every year in one of the world's largest migrations — while allowing the potential for oil and gas leasing in potentially viable areas in the future.
Sections 4, 5 and 6 contain the real substance of the order. The first important component here is the creation of a federal task force (consisting only of federal agencies) to "coordinate" with local governments, tribes, Native corporations and the private sector, among others. This helps ensure the left hand knows what the right hand is doing and ensures maximum efficiency.
The second important component here is the creation of an "Intergovernmental Tribal Advisory Council" consisting of federal agencies and representatives of coastal tribes. The purpose of that council is to provide "input and recommendations" on activities and regulations that affect the area and subsistence. It does not mandate any result or change any laws, but simply sets up a structure for meaningful consultation with the tribes affected by federal action. This formal inclusion of local Alaska voices in federal decision-making should be met with hurrahs. Section 6 mandates that local Alaska information is at least "considered" at the federal level.
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Section 7 asks the task force (the federal one, not the federal-tribal part) to determine whether any recommendations are necessary to limit the discharge of pollution (such as sewage) into our coastal waters.
Section 8 requires completion of a process to establish shipping routes, and Section 9 directs the appropriate agencies to update their spill response plans for the coast of the Bering Sea.
Finally, Section 10 acknowledges the existing boundary for "commercial non-pelagic trawl gear," and has the North Pacific Fishery Management Council and National Marine Fisheries Service take action – "consistent with existing law" – to support the policies of this order (read: the protection of subsistence). As with the task force and advisory council section, no law is changed here, no result is directed and agencies retain their existing authorities.
This order, which was correctly reported as being very directly based on resolutions that originated in the communities themselves, is a clear example of elevating the tribal voice to have some say in the decisions that affect their lives and survival. This was not a secret plot hatched in Washington, D.C. It is, at its heart, what you might call "protectionist" for Alaskans. It gives them a seat at the table and offers to listen. That in and of itself is extraordinary and the reason for the ebullient reactions from the villages.
This executive order is not about what was closed; on the contrary, on that day, in that order, the local Alaska voices won. And we should keep it that way.
Natalie Landreth is a senior staff attorney for the Native American Rights Fund and counsel to the Bering Sea Elders Group.
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