Kenaitze Indian Tribe v. State of Alaska
| Citation | 860 F.2d 312 |
| Decision Date | 04 January 1984 |
| Docket Number | No. 87-4110,87-4110 |
| Parties | 19 Envtl. L. Rep. 20,241 KENAITZE INDIAN TRIBE, Plaintiff-Appellant, v. STATE OF ALASKA, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Carol H. Daniel and Donald S. Cooper, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiff-appellant.
Sarah E. McCracken, Asst. Atty. Gen., Anchorage, Alaska, Larri I. Spengler, Asst. Atty. Gen., Juneau, Alaska, for defendant-appellee.
Elizabeth Ann Peterson, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for amicus.
Appeal from the United States District Court for the District of Alaska.
Before KOZINSKI, NOONAN and THOMPSON, Circuit Judges.
We travel to the northern reaches of our circuit to resolve a dispute implicating two recurring Alaskan motifs: on the one hand, the clash between traditional and modern ways of life; on the other, fish. The Kenaitze Indian Tribe claims that the state of Alaska is attempting to evade federal legislation creating a priority for subsistence fishing by residents of rural areas. The controversy turns on the meaning of the word "rural" as used in the Alaska National Interest Lands Conservation Act (ANILCA), Pub.L. No. 96-487, 94 Stat. 2371 (1980) ().
The Kenaitze, a tribe numbering approximately four hundred, have lived on the Kenai Peninsula, in southern Alaska, for hundreds of years. For most of their history, the Kenaitze have pursued a way of life dominated by subsistence fishing and hunting. In recent years, however, the area's proximity to Anchorage has made the Kenai Peninsula a center of commercial and sport fishing, and has transformed the Peninsula's economy to one based primarily on work for cash. Subsistence fishing has been crowded out by commercial harvesting and by sport fishing, the latter pursued with all the zeal of a Crusade. See Medred, Combat Fishing, Anchorage Daily News, May 15, 1988, at J-1 (describing "Alaska streams sometimes hidden behind a wall of humanity"); Freedman, Fish Hard Die Free: Profiles in Carnage, We Alaskans (Anchorage Daily News Magazine), Aug. 7, 1988, at N-7, N-8 ("It's said there are two kinds of people in Alaska: Those Who Fish, and Those Who Watch"); Jenkins, So Many Fishermen, So Few Flies, Anchorage Daily News, Aug. 10, 1988, at B-1.
In response to similar changes occurring throughout Alaska, Congress enacted ANILCA in 1980. The Act contains a number of provisions relating to conservation on federal lands, including the establishment of new units of the National Park, National Forest and National Recreation Area systems. Title VIII of ANILCA protects subsistence fishing by giving such fishing a priority over other types of fishing in federal waters in rural areas. 16 U.S.C. Secs. 3111-3126 (1982 & Supp. IV 1986).
Congress prefaced Title VIII with a declaration that "the continuation of the opportunity for subsistence uses by rural residents of Alaska ... is essential to Native physical, economic, traditional, and cultural existence...." Id. Sec. 3111(1). Congress further found that because "continuation of the opportunity for subsistence uses of resources on public and other lands in Alaska is threatened by the increasing population of Alaska [and] by increased accessibility of remote areas containing subsistence resources," id. Sec. 3111(3), it was necessary for Congress "to protect and provide the opportunity for continued subsistence uses on the public lands by Native and non-Native rural residents." Id. Sec. 3111(4). 1
ANILCA accordingly provides that "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. Sec. 3114. Section 3113 defines "subsistence uses" as "the customary and traditional uses by rural Alaska residents of wild, renewable resources" for a variety of uses. Id. Sec. 3113 (emphasis added).
The statute directs the Secretary of the Interior to establish the administrative structure necessary for the implementation of the statute. Id. Sec. 3115(a)-(c). The federal regulatory scheme is to be stayed, however, if the state of Alaska enacts laws "which are consistent with, and which provide for the definition, preference, and participation specified in, sections 3113, 3114, and 3115 of this title." Id. Sec. 3115(d). The Secretary is to monitor the state's performance in this regard, and to report periodically to appropriate congressional committees. Id. Sec. 3116. ANILCA authorizes any person or organization aggrieved by the failure of the state or federal government to enforce the subsistence priority set forth in section 3114 to file a civil action for injunctive relief in federal district court. Id. Sec. 3117. Section 3117 provides the jurisdictional basis for this lawsuit.
Given the choice between federal regulation or self-regulation with federal oversight, Alaska chose the latter. The state enacted the necessary statutes in 1978, while Congress was still working on the final version of ANILCA. Pursuant to the state statutes, the state Joint Boards of Fish and Game promulgated regulations which, among other things, defined rural as describing any area other than a community with a population of 7,000 or more. Residents of these rural communities were to be afforded ANILCA's priority for subsistence fishing. In 1982, the Secretary of the Interior certified that the state legislative program was in compliance with ANILCA. Letter from Secretary James Watt to Governor Jay Hammond (May 14, 1982). This certification suspended federal regulation and left the state in charge of implementing ANILCA.
Soon after certification was completed, the Joint Boards of Fish and Game issued a new regulation, which materially altered the definition of rural and substantially narrowed the areas where subsistence fishing would be afforded a priority. According to the new definition, identification of a rural area depended on ten criteria, including the current pattern of subsistence uses by groups inhabiting the area. The principal effect of the new regulation was to deny the subsistence fishing priority to residents of areas dominated by a cash economy. In 1985 this regulation was invalidated by the Alaska Supreme Court as inconsistent with state law. Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168 (Alaska 1985). The Alaska Legislature revived the regulation by amending the statute to conform to it. As amended, the statute defines "rural area" to mean "a community or area of the state in which the noncommercial, customary, and traditional use of fish or game for personal or family consumption is a principal characteristic of the economy of the community or area." Alaska Stat. Sec. 16.05.940(25) (1987).
Invalidation of the earlier regulation in Madison had caused the Interior Department to advise the Governor of Alaska that the state had fallen out of compliance with ANILCA. After the new legislation, the Assistant Secretary of the Interior for Fish and Wildlife and Parks wrote a letter to the Governor of Alaska purporting to certify that the state was once again in compliance. Letter from Assistant Secretary William Horn to Governor Bill Sheffield (Nov. 7, 1986).
The Kenai Peninsula qualifies as a rural area under the state's original definition of the term, but not under the new definition. While vast areas of the Peninsula are covered by countryside and wilderness, its economy is no longer dominated by subsistence and barter. 2 This means that under the new state scheme, subsistence fishing in the Kenai is denied the priority provided by ANILCA. The Kenaitze, some of whom continue to engage in subsistence fishing, brought suit challenging this change in state law. The Tribe sought an order directing the state to promulgate regulations defining rural in a manner that would implement the federal subsistence priority. Along with the complaint, the Tribe filed a motion for summary judgment and asked the court for a preliminary injunction to prevent the state from enforcing its existing statutory and regulatory definition of rural. The district court denied both motions, and granted the state's crossmotion for partial summary judgment on the issue of whether Alaska was in compliance with ANILCA. The Tribe took an interlocutory appeal from the denial of the preliminary injunction. 28 U.S.C. Sec. 1292(a)(1) (1982).
We must first consider whether we interpret the statute de novo, or whether we owe deference to the interpretation already adopted by the Department of the Interior and the state of Alaska, as the entities charged with the statute's enforcement. The state, supported by the Secretary as amicus, 3 argues that we owe deference to the interpretation advanced by the Secretary. Specifically, the state points to the 1986 letter from the Assistant Secretary for Fish and Wildlife and Parks, which approves the state's revised definition of rural. Since the Secretary is charged with implementing ANILCA, the argument goes, we should defer to his determination that the state's definition of rural conforms with federal law. 4
Deference to an administrative agency's construction of a statute is appropriate, however, only where the agency is entrusted with the administration of the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d728 (1982). We defer, therefore, only where the agency acts pursuant to a delegation of statutory authority. The 1986 letter was not such an action. The Secretary's responsibility in administering the Act includes an initial certification that the...
To continue reading
Request your trial
-
Sohappy v. Hodel
...so long as it is used merely as a rhetorical flourish or to provide local color. See, e.g., Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 318-20 (9th Cir.1988) (Noonan, J., concurring), cert. denied, --- U.S. ----, 109 S.Ct. 3187, 105 L.Ed.2d 695 (1989). Here, however, the majority seems t......
-
New York v. United States County of Allegany, New York v. United States County of Cortland, New York v. United States
...255 (1992); and the Alaska National Interest Lands Conservation Act, 94 Stat. 2374, 16 U.S.C. § 3101 et seq., see Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 314 (CA9 1988), cert. denied, 491 U.S. 905, 109 S.Ct. 3187, 105 L.Ed.2d 695 By either of these two methods, as by any other permis......
-
Mci Telecomm. Corp. v. Bellsouth Telecomm., Inc.
...decision where federal scheme "does not envision any unitary or uniform application from state to state"); and Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 316 (9th Cir.1988) (finding deference to state agency inappropriate due to the state's inexperience implementing federal laws, the ab......
-
State v. Fed. Subsistence Bd.
...the nationwide perspective characteristic of a federal agency." 227 F.3d 1186, 1192 (9th Cir. 2000) (quoting Kenaitze Indian Tribe v. Alaska , 860 F.2d 312, 316 (9th Cir. 1988) ).127 John v. United States , 720 F.3d 1214, 1228 (9th Cir. 2013) ("We generally agree with the district court tha......
-
Case summaries.
...July 26, 2014). (219) Administrative Procedure Act, 5 U.S.C. [section] 706(2)(A) (2006). (220) See Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 317 (9th Cir. 1988) (declining to adopt a statutory interpretation that would render one portion of the statute redundant when "another interpret......
-
Sovereignty and Subsistence: Native Self-government and Rights to Hunt, Fish, and Gather After Ancsa
...with most of it involving state efforts to limit application of the subsistence priority. See, e.g., Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988) (holding state's statutory definition of "rural" unlawful, as it was inconsistent with the plain meaning of the term); Bobby v. ......
-
The Legal Protection of Subsistence: a Prerequisite of Food Security for the Inuit of Alaska(fn1000)
...[188] Summit, supra note 187, at 637-42. [189]See, e.g.,16 U.S.C. 3113 (2000); 36 C.F.R. 242.15 (2004); Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 313-14 (9th Cir. 1988). [190] State v. Kenaitze Indian Tribe, 894 P.2d 632 (Alaska 1995); on subsequent appeal, 83 P.3d 1060 (Alaska 2004). ......
-
Sovereignty and Subsistence: Native Self-government and Rights to Hunt, Fish, and Gather After Ancsa
...with most of it involving state efforts to limit application of the subsistence priority. See, e.g., Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988) (holding state's statutory definition of "rural" unlawful, as it was inconsistent with the plain meaning of the term); Bobby v. ......