Alaska Dep't of Fish & Game v. Fed. Subsistence Bd.
| Decision Date | 18 September 2020 |
| Docket Number | Case No. 3:20-cv-00195-SLG |
| Parties | STATE OF ALASKA, DEPARTMENT OF FISH AND GAME Plaintiff, v. FEDERAL SUBSISTENCE BOARD, et al., Defendants, v. ORGANIZED VILLAGE OF KAKE, Defendant-intervenor. |
| Court | U.S. District Court — District of Alaska |
Before the Court at Docket 3 is the State of Alaska, Department of Fish and Game ("the State")'s Motion for Preliminary Injunction. Defendants responded in opposition at Docket 18. The State replied at Docket 24. The Court heard argument on the motion on September 8, 2020.
The State commenced this action on August 10, 2020, against the Federal Subsistence Board ("FSB"), and several other federal officials (collectively, "Defendants").1 The State alleges that the FSB violated Title VIII of the Alaska National Interest Lands Conservation Act ("ANILCA"), ANILCA § 1314, the Administrative Procedure Act ("APA"), and the Open Meetings Act by adopting a temporary special action to close moose and caribou hunting on federal public lands in Game Management Units 13A and 13B to non-federally qualified users.2 The State moved for a temporary restraining order and preliminary injunction prohibiting Defendants from closing those units.3
On July 16, 2020, the FSB held a Work Session Meeting by teleconference; the session was open to the public.4 Immediately prior to the meeting, the FSBheld a closed executive session to review "legal issues" and the agenda for the meeting, as well as to update new Board members.5 At the public meeting, the FSB considered five special action proposals, including Wildlife Special Action 20-03 ("WSA 20-03") pertaining to Game Management Unit 13.6
Alaska is divided into 26 Game Management Units ("Units").7 Unit 13 is a popular area for moose and caribou hunting due to its road accessibility.8 Federal public lands make up 12.4% of Unit 13, of which approximately half is part of Denali National Park.9 The Unit is divided into five subunits, A through E, of which Units 13A and 13B are the most readily accessible by road.10 The Richardson Highway cuts through Unit 13B,11 and caribou migration across the highway leads to traffic jams caused by hunters crossing the highway or parking in narrow and dangerous sections of the highway in pursuit of caribou.12
The proposal for WSA 20-03 was submitted by a resident of Glennallen, Alaska, who requested that the FSB "close Federal public lands in Unit 13 to the hunting of moose and caribou by non-Federally qualified users for the 2020/21 season."13 The FSB had considered and rejected an identical proposal for the 2019/2020 season, WSA 19-03 (the "2019 Proposal"),14 reasoning then that the closure was not warranted for conservation, continuation of subsistence use, or safety reasons, as required by ANILCA.15
At the July 16, 2020 meeting, Lisa Maas, the Acting Policy Coordinator/Wildlife Biologist for the Office of Subsistence Management ("OSM") presented a summary of the analysis for WSA 20-03 to the FSB. First, Ms. Maas explained that WSA 20-03's proponent requested the closure for several reasons: the "extreme hunting competition" faced by federally qualified users in Unit 13 resulting from the number of non-federally qualified users in the Unit, the negative effects of that competition on the harvest by federally qualified rural subsistence users, and concerns for public safety.16 The proponent suggested that the requested closure could serve as "an experiment" to determine whether federalland closure would lead to increased harvest success rates for federally qualified subsistence users.17
Next, Ms. Maas summarized written comments submitted by Alaska residents as well as by the State itself.18 Some residents opposed WSA 20-03 on the basis that the caribou herd was above population objectives and that public lands should remain open to all of the public.19 The State commented that "no conservation concerns exist for either moose or caribou in Unit 13," that "hunting pressure has not been shown to displace moose or caribou," and that "closure would not likely affect hunting success . . . of Federally-qualified users or address public safety concerns."20 Ms. Maas also summarized testimony from a public hearing where seven members of the public testified in support of the proposal and five testified in opposition.21 Supporters cited to ANILCA's rural subsistence priority and noted that federal public lands make up only a small portion of Unit13,22 whereas opponents emphasized a lack of conservation need and a belief that public lands should remain open to all.23 Along with the proponent of the proposal, several members of the public testified about safety and overcrowding concerns.24
Ms. Maas shared information about herd population and harvest success rates and trends for federally qualified subsistence users.25 She concluded that "[c]losures for conservation is not warranted as moose and caribou populations are within or above management objectives," and that the "effectiveness of the closure for the continuation of subsistence uses of caribou is uncertain as caribou harvest is primarily related to availability and caribou have not been available on Federal public lands in recent years."26 However, she also concluded that "[c]losure for continuation of subsistence uses of moose may be warranted," reasoning that harvest success rates are lower under federal than state regulations, and that "[c]losure for reasons of public safety may be warranted" as well.27 Ms. Maas reported that:
Safety concerns resulting from intense hunting pressure, overcrowding, disruption of hunts, and unsafe shooting practices havebeen repeatedly stated by all user groups. While these concerns may be better addressed through increased law enforcement or restrictions along road sides, these options have not been implemented and are outside the Board's authority.28
Ms. Maas explained that the OSM supported the proposal, but with modifications. The OSM proposed that only federal public lands in Units 13A and 13B would be closed, and they would be closed through the 2022 regulatory cycle so as to "reduce the administrative burden associated with processing special action requests."29 Ms. Maas reasoned that "this has been an issue for decades, [so] no change[s] in the situation are expected between this year and next year."30 She explained that if all the federal public lands in Unit 13 were closed, it would entail closing 6.4% of Unit 13, whereas closing the federal public lands in Units 13A and 13B would only entail closing 2.7% of Unit 13.31
Board members were given an opportunity to ask questions, and the members inquired whether issuing fewer permits or closing federal public lands in Unit 13 to non-federally qualified users for a 10-day period would alleviate some of the concerns.32 Ms. Maas replied that federal permits had only increased slightlyover the years and that a short-term closure would not address the safety concerns.33
Ms. Maas reported that the InterAgency Staff Committee ("ISC") had also recommended adopting WSA 20-03, with the OSM's proposed modifications, on the basis that it is "justifiable to improve safety and reduce user conflicts while continuing and potentially increasing the opportunity for subsistence uses of moose and caribou in Units 13A and 13B."34 However, the ISC cautioned that the closure may not be effective, given that it would not prevent anyone from crossing the closed lands to access State-managed lands in order to hunt moose and caribou on those state lands.35 Comments were solicited from other Regional Advisory Council Chairs, but there were none; nor were there any comments from the Native Liaison for OSM.36 Lastly, the public was again allowed to weigh in.37 Karen Linnell with the Ahtna Intertribal Resource Commission testified in support of the proposal, as did Jim Simon, a former federally qualified subsistence user who owns property on Unit 13.38 Mr. Simon testified that he regularly travels along the Richardson Highway through Units 13A and 13B, and has "had numerous verydangerous situations with road hunting in the area," adding that "just the amount of traffic . . . on the highway does present a significant public hazard."39
Lastly, Ben Mulligan weighed in on behalf of the State, explaining that the data submitted to the FSB shows that an increase in state hunters correlates with an increase in harvest success of federally qualified subsistence users.40 Mr. Mulligan added that, even if the proposal were adopted, there may still be "a good level of traffic" through Units 13A and 13B since people will be able to transition through or camp in those subunits.41
After the testimony concluded, the FSB deliberated and the members voted.42 Chad Padgett with the Bureau of Land Management ("BLM") voted against the proposal, reasoning that the closure was not necessary for continuation of subsistence uses, for reasons of public safety, or for conservation of healthy populations.43 He emphasized the difficulties of navigating the closure due to "complex and ill-defined boundaries between State and Federal lands in Unit 13."44 However, the remaining members of the FSB all voted in favor of adopting the proposal as modified, including Greg Siekaniec for the U.S. Fish & Wildlife Service,Dave Schmid for the U.S. Forest Service, Gene Peltola for the Bureau of Indian Affairs, Don Striker for the National Park Service, Rhonda Pitka, and Anthony Christianson.45 Among the reasons given by those members were that the proposal "is necessary to provide for the continued subsistence use" of moose and caribou and that it could "lead towards addressing the safety concerns."46
On July 31, 2020, the FSB issued a press release answering "common questions and concerns about the closure."47 It included a map indicating the closure area48 and explained that it was closed only to state hunters for caribou and moose...
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