Alaska v. Federal Subsistence Bd.

• Decision Date: 23 September 2008
• Docket Number: No. 07-35723.,07-35723.
• Parties: State of ALASKA, Plaintiff-Appellant, v. FEDERAL SUBSISTENCE BOARD; Michael Fleagle, Chairman, Federal Subsistence Board; Dirk Kempthorne, Secretary of the Interior; Ed Schafer, Secretary of the Department of Agriculture, Defendants-Appellees, Cheesh-Na Tribal Council; Larry Sinyon, Defendant-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

544 F.3d 1089

State of ALASKA, Plaintiff-Appellant, v. FEDERAL SUBSISTENCE BOARD; Michael Fleagle, Chairman, Federal Subsistence Board; Dirk Kempthorne, Secretary of the Interior; Ed Schafer, Secretary of the Department of Agriculture, Defendants-Appellees, Cheesh-Na Tribal Council; Larry Sinyon, Defendant-Intervenors-Appellees.

No. 07-35723.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2008.

Filed September 23, 2008.

Michael W. Seawright, Assistant Attorney General, Anchorage, AK, for the plaintiff-appellant.

Ellen J. Durkee, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellees.

Heather Kendall, Native American Rights Fund, Anchorage, AK, for the defendants-intervenors-appellees.

Douglas S. Burdin, Washington, D.C., for amici curiae Safari Club International, and Safari Club International Foundation.

James H. Lister, Birch, Horton, Bittner & Cherot, Washington, D.C., for amicus curiae Kenai Sportfish Association.

Appeal from the United States District Court for the District of Alaska; H. Russel Holland, District Judge, Presiding. D.C. No. CV 06-0107 HRH.

Before: D.W. NELSON, A. WALLACE TASHIMA, and RAYMOND C. FISHER, Circuit Judges.

TASHIMA, Circuit Judge:

Defendant-Appellee Federal Subsistence Board ("FSB" or "Board") administers the federal subsistence program at the heart of Title VIII of the Alaska National Interest Lands Conservation Act ("ANILCA"), 16 U.S.C. §§ 3111-26. In 2005, the FSB granted residents of Chistochina, a rural community in Southeast Alaska, a Customary and Traditional use determination ("C & T determination") for moose throughout Game Management Unit ("GMU") 12. The C & T determination permits Chistochina residents to harvest moose in GMU 12 under federal subsistence hunting regulations, which are more permissive than state hunting regulations.

Plaintiff-Appellant the State of Alaska ("Alaska") challenged the C & T determination in district court, contending that the FSB granted the determination in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). The district court granted summary judgment in favor of Defendants-Appellees FSB, the Chairman of the FSB, the Secretary of the Interior, the Secretary of the Department of Agriculture (together, "Federal Defendants"), and Defendant-Intervenors Cheesh-na Tribal Council, Chistochina's governing body, and Larry Sinyon, a Chistochina subsistence hunter ("Intervenors"). After a careful review of the record, we find no reason to set aside the FSB's C & T determination. Because we may not substitute our own judgment for that of the FSB, see Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir.2008) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)), we affirm.

I. ANILCA

Congress enacted ANILCA to further two ends. The first is:

to preserve unrivaled scenic and geological values associated with natural landscapes; to provide for the maintenance of sound populations of, and habitat for, wildlife species of inestimable value to the citizens of Alaska and the Nation ...; to preserve in their natural state extensive unaltered arctic tundra, boreal forest, and coastal rainforest ecosystems; to protect the resources related to subsistence needs; to protect and preserve historic and archeological sites, rivers, and lands, and to preserve wilderness resource values and related recreational opportunities ...; and to maintain opportunities for scientific research and undisturbed ecosystems.

16 U.S.C. § 3101(b). The second, in order though not in priority, is "to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so." Id. § 3101(c).

In Title VIII of ANILCA, Congress sought to protect the subsistence way of life in the face of Alaska's growing population and the resultant pressure on fish and wildlife populations, and created a subsistence management and use program. Id. § 3111(3). The program grants a priority to subsistence use of resources, providing "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 purposes." Id. § 3114. Congress authorized the Secretary of the Interior and the Secretary of Agriculture (together, the "Secretaries") to promulgate regulations in furtherance of ANILCA's directives.¹ Id. § 3124.

The regulations establish a Federal Subsistence Management Program for all federal lands in Alaska. 50 C.F.R. § 100.1. The Secretaries created and charged the FSB with the "responsibility for administering the subsistence taking and uses of fish and wildlife on public lands." Id. § 100.10(a). In the course of its administration, the FSB "[d]etermine[s] which rural Alaska areas or communities have customary and traditional subsistence uses of specific fish and wildlife populations." Id. § 100.10(d)(4)(iii). To assist in these C & T determinations, the FSB establishes Regional Advisory Councils ("RACs"), which oversee subsistence resource regions and receive input from rural communities regarding subsistence uses in their regions. Id. § 100.11(a). The RACs may evaluate C & T determination proposals, Id. § 100.11(c)(xi), and recommend to the FSB that it grant or deny a particular C & T determination, Id. § 100.11(c)(viii). See also 16 U.S.C. § 3115(a).

The FSB codifies C & T determinations at 50 C.F.R. § 100.24. Those communities with C & T determinations for particular fish stock or wildlife populations may take² them within the GMU,³ or portion of a GMU, for which they have a C & T determination pursuant to the federal subsistence hunting regulations found at 50 C.F.R. §§ 100.25-.28.

II. Facts and Procedural History

Chistochina is a rural community located in GMU 13C, a subunit of GMU 13, that borders GMUs 11 and 12. According to the 2000 Census, the community boasts ninety-three residents in thirty-seven households. GMU 12, the primary GMU at issue in this case, covers approximately 10,000 square miles.⁴ Federal public lands, including the Tetlin National Wildlife Refuge and the Wrangell — St. Elias National Park and Preserve, comprise fifty-nine percent of GMU 12. State lands occupy approximately forty percent of the land. Less than one percent of the land is privately owned.

In 2004, the Cheesh-na Tribal Council, Chistochina's governing body, submitted a C & T determination proposal to the FSB. At the time of the proposal, there existed C & T determinations for moose within three areas of GMU 12:

(A) south of a line from Noyes Mountain, southeast of the confluence of Tatschunda Creek to Nabesna River.

(B) east of the Nabesna River and Nabesna Glacier, south of the Winter Trail from Pickerel Lake to the Canadian Border.

(C) remainder.⁵

50 C.F.R. § 100.24(a)(1) (2004). Chistochina was included in the C & T determination for moose within area A but not areas B and C. Id. In the 2004 proposal, the Cheesh-na Tribal Council asked the FSB to grant Chistochina a C & T determination for moose within areas B and C on the ground that Chistochina residents "customarily and traditionally hunted moose throughout Unit 12." In support of this claim, the Council represented that Chistochina residents had taken moose in "[a]ll areas east of the Nabesna river and south of the River Trail. This includes, but is not limited to rivers, lakes, and creeks in the Chisana area ... and in the White River area."

The Office of Subsistence Management ("OSM") prepared an analysis of the proposal, which it forwarded to the Southcentral RAC and the Eastern Interior RAC.⁶ After reviewing the proposal and hearing testimony, both RACs recommended granting a C & T determination for moose to Chistochina members throughout GMU 12. The FSB, during a public hearing, considered the proposal along with the OSM analysis, the recommendations of the RACs, and a positive recommendation from the Interagency Staff Committee of the OSM ("Staff Committee"). A representative from the Alaska Department of Fish and Game was the only party to express any reservations. He asked the FSB to limit the C & T determination, averring that the Chistochina residents had only shown use of moose in portions of areas B and C and not throughout areas B and C. The FSB approved the proposal as submitted, granting Chistochina residents a C & T determination for moose in areas B and C of GMU 12.

Alaska requested reconsideration pursuant to 50 C.F.R. § 100.20(b), contending that historical and cultural data showed that Chistochina members harvested moose only in 2,500 square miles of GMU 12. Alaska proposed granting Chistochina a C & T determination for moose in the following area: "that portion [of GMU 12] that includes the drainage of the Nabesna River upstream from the mouth of Lick Creek, and the area south of and including the Pickerel Lake Winter Trail from Lick Creek to the Chisana River." The proposed area occupies area A, the eastern third of area B, and a small portion of area C bordering the Nabesna Road, Nabesna River, and Pickerel Lake.

The FSB denied the request for reconsideration, and Alaska filed the instant action, contending that in granting the C & T determination, the FSB violated the APA.⁷ The Cheesh-na Tribal Council and Sinyon intervened shortly thereafter. On cross-motions for summary judgment, the district court granted summary judgment in favor of all Defendants. Alaska timely appeals.

III. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's determination on summary judgment that the FSB complied with ANILCA and its implementing regulations. See Or. Natural Desert Ass'n v. Bureau of Land Mgmt., 531 F.3d 1114, 1130 (9th Cir.2008). We must...