Alaska Fish and Wildlife Federation and Outdoor Council, Inc. v. Dunkle
| Decision Date | 09 October 1987 |
| Docket Number | No. 86-3657,86-3657 |
| Citation | 829 F.2d 933 |
| Parties | 18 Envtl. L. Rep. 20,156 The ALASKA FISH AND WILDLIFE FEDERATION AND OUTDOOR COUNCIL, INC., and the Alaska Fish and Wildlife Conservation Fund, Inc., Plaintiffs-Appellants, v. Frank L. DUNKLE, Director, United States Fish and Wildlife Service, and Donald Collinsworth, Commissioner of the Alaska Department of Fish and Game, Defendants-Appellees, The Alaska Federation of Natives, the Association of Village Council Presidents and Tony Vaska, Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gregory F. Cook, Douglas, Alaska, for plaintiffs-appellants.
James C. Kilbourne, Edward J. Shawaker, and J. Carol Williams, Washington, D.C., for Director, U.S. Fish and Wildlife Service, David A. Gayer, Washington, D.C., of counsel. Larri Irene Spengler, Juneau, Alaska, for appellee State of Alaska.
Donald C. Mitchell, Anchorage, Alaska, for intervenors-appellees.
Appeal from the United States District Court for the District of Alaska.
Before SKOPIL and FLETCHER, Circuit Judges, and VUKASIN, * District Judge.
The Alaska Fish and Wildlife Conservation Fund and the Alaska Fish and Wildlife Federation and Outdoor Council ("the Conservation Fund"), appeal the district court's dismissal of its claims against defendants, Frank L. Dunkle, Director of the United States Fish and Wildlife Service ("Fish and Wildlife Service"), and Donald Collinsworth, Commissioner of the Alaska Department of Fish and Game ("ADF & G"). The Conservation Fund also appeals the district court's grant of summary judgment in favor of intervenors, the Alaska Federation of Natives, the Association of Village Council Presidents, and Alaska State Representative Tony Vaska ("Intervenors"), on their cross claims against the defendants.
The Conservation Fund seeks a declaration that two cooperative agreements (the "Hooper Bay Agreement" and the "1985 Goose Management Plan") entered into by We first consider the procedural claims raised by the Fish and Wildlife Service and ADF & G. We conclude that the Conservation Fund has standing to pursue its claims and that a decision in favor of the Conservation Fund would not infringe on the prosecutorial discretion of the Fish and Wildlife Service. We also conclude that this action is not moot.
the Fish & Wildlife Service, the ADF & G, the Association of Village Council Presidents, and the California Department of Fish and Game are void. They contend that the Fish & Wildlife Service failed to follow federal procedures before entering into the agreement and that the Hooper Bay Agreement and the 1985 Goose Management Plan illegally permitted closed season hunting by Alaskan Natives. As applied to subsistence hunting of migratory birds in Alaska, the district court determined that the 1925 Alaska Game Law ("1925 AGL"), 43 Stat. 739, superseded the 1918 Migratory Bird Treaty Act ("MBTA"), 40 Stat. 755 (codified at 16 U.S.C. Secs. 703-711 (1982)). It held that a provision in the 1925 AGL preventing the Department of Agriculture from placing restrictions on subsistence hunting continues in force today. For this reason, the district court concluded that the Fish and Wildlife Service has no authority to place restrictions on subsistence hunting by Alaskan Natives.
We reverse the district court's decision as to the applicability of the 1925 AGL to the hunting of migratory game birds in Alaska. We hold that the MBTA governs the hunting of migratory birds and that the MBTA currently does not permit closed season subsistence hunting of migratory game birds by Alaskan Natives. We remand to the district court to determine whether the Hooper Bay Agreement and the 1985 Goose Management Plan violate the provisions of the MBTA. 1
This case concerns the hunting of migratory birds on the Yukon-Kuskokwim Delta ("Delta"). In early March, migratory birds, including Cackling Canada Geese, White Fronted Geese, Pacific Black Brant, and Emperor Geese, arrive on the Delta. During the spring and summer months the birds nest and raise their young. In early September the birds migrate south.
The birds represent an important part of the traditional Native diet. Upon arrival in the spring, the migratory birds provide Delta Natives with the first available fresh meat after the long winter.
Hunting by Delta Natives, along with hunting by sportsmen, loss of habitat, and natural predation, has resulted in a decline in the migratory bird population. This decline has concerned conservationists since the turn of the century and has become increasingly severe. All parties agree that extraordinary measures are necessary to reverse the current trend.
The Fish and Wildlife Service has assumed that all harvesting of migratory birds between March 10 and September 1 of each year is prohibited by the MBTA. In recent years, however, the Fish and Wildlife Service has not made an effort in Alaska to ensure compliance with the MBTA. Political and geographical considerations have led the Service to conclude that traditional methods of enforcing game laws are not effective in the vast reaches of rural Alaska. In 1975 the Service adopted a written policy stating that subsistence hunting in Alaska during the closed season would not be punished.
In an effort to decrease sport and subsistence hunting during the closed season Shortly before the 1984 nesting season began, the Conservation Fund filed legal action against the Fish and Wildlife Service and the ADF & G. The Conservation Fund alleged that by entering into the Hooper Bay Agreement, the Fish and Wildlife Service illegally permitted Alaskan Natives to engage in closed season hunting. It contended that this action violated the MBTA, the Administrative Procedure Act ("APA"), 5 U.S.C. Secs. 551-559 (1982), and the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321-4347 (1982). The Conservation Fund sought an injunction to prohibit the Fish and Wildlife Service from acquiescing in the taking of migratory birds during the 1984 closed hunting season. It also requested declaratory relief to require the Fish and Wildlife Service to comply with APA and NEPA before entering into further agreements and to develop a comprehensive plan for reducing the harvest of the endangered species.
the Fish and Wildlife Service initiated negotiations with Alaskan Natives. In January 1984 the Fish and Wildlife Service, the ADF & G, the Association of Village Council Presidents, and the California Department of Fish and Game agreed to a cooperative plan to reduce the hunting of three types of migratory birds. This plan, known as the Hooper Bay Agreement, prohibited sport hunting of Cackling Canadian Geese and reduced the hunting of White Fronted Geese and Black Brants during the 1985 hunting season. The Agreement placed restrictions on subsistence hunting, but did not prohibit this activity. Enforcement of the Hooper Bay Agreement was to be accomplished jointly by the various governmental agencies and local village councils. During 1984 the parties complied with the terms of the Agreement. In 1985 the Hooper Bay Agreement was replaced by a similar agreement, the 1985 Goose Management Plan.
Shortly thereafter, the Intervenors filed a cross-claim against the Fish and Wildlife Service. The cross-claim alleged, in relevant part, that the 1925 AGL rather than the MBTA governs the subsistence hunting of migratory game birds in Alaska. The Intervenors argued that the 1925 AGL superceded the MBTA and that until the Secretary of the Interior adopts regulations pursuant to the 1978 Fish and Wildlife Improvement Act ("Fish and Wildlife Improvement Act"), 16 U.S.C. Sec. 712 (1982), Congress has, pursuant to the 1925 AGL, authorized Alaskan Natives to harvest migratory waterfowl during all seasons of the year if they or members of their family are in need of food and other sufficient food is not available.
The district court denied the Conservation Fund's request for a preliminary injunction for the 1984 season. All parties then filed motions for summary judgment. In the spring of 1985 the district court stayed the case through the 1985 nesting season. The district court ordered the Fish and Wildlife Service and the Intervenors to report to the court regarding the effectiveness of the 1985 Goose Management Plan. The reports were received, and in January 1986 the court granted summary judgment in favor of the Intervenors.
The court ruled that the Fish and Wildlife Service may not restrict subsistence hunting activities by Alaskan Natives. It concluded that the 1925 AGL repealed the MBTA insofar as the MBTA applied to Alaska. It held, however, that all of the MBTA's terms except for its restriction on subsistence hunting were incorporated into the 1925 AGL. Because the 1925 AGL permitted subsistence hunting by Alaskan Natives and no subsequent legislation modified the subsistence hunting provision in the 1925 AGL, the district court held that the Hooper Bay Agreement and the 1985 Goose Management Plan had no legal effect. The court declined to address whether the Secretary has authority under the Fish and Wildlife Improvement Act to restrict subsistence hunting because the Fish and Wildlife Service has not yet issued regulations pursuant to that Act. The district court concluded that the Conservation Fund's APA and NEPA claims were moot because the two agreements had no legal effect.
The Conservation Fund argues that the district court incorrectly found that the 1925 AGL superceded the MBTA with respect
to subsistence hunting of migratory birds in Alaska. It seeks a declaratory ruling that the Hooper Bay Agreement and the 1985 Goose Management Plan are contrary to the MBTA because they permit subsistence hunting. The Conservation Fund also seeks to compel the Fish and Wildlife Service to adopt measures restricting subsistence hunting. Although the Fish and...
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