Alaska v. Fed. Subsistence Bd.
| Docket Number | 3:20-cv-00195-SLG |
| Decision Date | 03 November 2023 |
| Parties | STATE OF ALASKA, DEPARTMENT OF FISH AND GAME, Plaintiff, v. FEDERAL SUBSISTENCE BOARD, et al., Defendants, and ORGANIZED VILLAGE OF KAKE, Intervenor-Defendant. |
| Court | U.S. District Court — District of Alaska |
DECISION & ORDER ON REMAND
Pursuant to the Ninth Circuit Court of Appeals' mandate at Docket 72 and opinion at Docket 69, the Court issues this decision and order regarding the issues presented on remand involving whether the Federal Subsistence Board (“FSB”) had the authority to open an emergency subsistence hunt on federal lands for the Organized Village of Kake (“OVK” or “Kake”) at the outset of the COVID-19 pandemic. The Court previously found the issue to be moot, but the Ninth Circuit held that it “is excepted from mootness because the opening of an emergency hunt is capable of repetition and will evade review.”[1] Accordingly, on March 14, 2023, the Ninth Circuit remanded to this Court “for further proceedings consistent with [its] opinion.”[2]
Now on remand, the parties also dispute the scope of remand. The State of Alaska, Department of Fish and Game (“State”), contends that the issues at hand include: (1) whether the Alaska National Interest Lands Conservation Act (“ANILCA”) authorizes the federal government, including the FSB, to open a hunt on federal lands; (2) whether ANILCA authorizes the FSB to delegate the authority to open a hunt to local land managers and (3) whether the FSB has the authority to delegate the hunt administration of the Kake hunt outside of a federal agency, including the authority to make determinations as to who can hunt and receive meat.[3] Federal Defendants and the OVK (collectively, “Defendants”), on the other hand contend that this remand should be limited only to determining whether the federal government, including the FSB, has the authority to open emergency hunts.[4]
The Court heard oral argument on the merits on June 16, 2023.
In 1980, Congress enacted the Alaska National Interest Lands Conservation Act (“ANILCA”).[5] The protection and preservation of the opportunity for rural residents to engage in a subsistence way of life is an important objective of ANILCA.[6]Congress expressly found that “the continuation of the opportunity for subsistence uses by rural residents of Alaska, including both Natives and non-Natives, . . . is essential to Native physical, economic, traditional, and cultural existence and to non-Native physical, economic, traditional, and social existence.”[7] The “Congressional statement of policy” in § 802 of ANILCA provides that “the purpose of this subchapter is to provide the opportunity for rural residents engaged in a subsistence way of life to do so.”[8]
Section 804 of ANILCA, entitled “Preference for subsistence uses,” 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.”[9] ANILCA defines “subsistence uses” to mean “customary and traditional uses by rural Alaska residents of wild, renewable resources.”[10] Thus, Title VIII of ANILCA[11] requires that “rural Alaska residents be accorded a priority for subsistence hunting and fishing on public lands.”[12] In enacting Title VIII of ANILCA, Congress indicated it was “invok[ing] . . . its constitutional authority under the property clause and the commerce clause to protect and provide the opportunity for continued subsistence uses on the public lands by Native and non-Native rural residents.”[13]The Property Clause, in turn, authorizes Congress to make needed rules and regulations regarding public lands.[14] And the Commerce Clause gives Congress the power to regulate commerce with foreign nations, among states, and with Indian tribes.[15]
In ANILCA, Congress authorized the State of Alaska to “assume management of the subsistence program statewide under federal guidelines.”[16] Pursuant to § 805(d) of ANILCA, “Congress gave the state authority to implement the rural subsistence preference by enacting laws . . . consistent with ANILCA's operative provisions.”[17] If Alaska “enforce[d] a rural subsistence priority through the exercise of its own sovereignty, Congress [would] return primary regulatory authority over [subsistence uses] to state stewardship,” but if Alaska failed to do so, then “the federal government would step in to protect subsistence [uses] as traditionally practiced by rural Alaskans.”[18] Promptly after ANLICA's enactment, the State of Alaska did indeed enact laws consistent with Title VIII's rural subsistence preference, and in 1982, “the Secretary of the Interior certified the state to manage subsistence hunting and fishing on public lands” in Alaska.[19]
Several years later in 1989, however, the Alaska Supreme Court in McDowell v. Alaska[20] “struck down the state act granting the rural subsistence preference as contrary to the Alaska state constitution.”[21] In McDowell, the court held that Alaska's statute granting a preference to rural residents to take fish and game for subsistence purposes violated sections 3, 15, and 17 of article VIII of the Alaska Constitution, because these sections prohibit exclusive or special privileges in the taking of fish and wildlife.[22] The court “stayed its decision to give the [Alaska] legislature an opportunity to amend the constitution or otherwise bring its program into compliance with ANILCA,” but the legislature “failed to act.”[23] Therefore, in 1990, “the federal government withdrew Alaska's certification and took over implementation of Title VIII.”[24] To this day, the relevant provisions of Alaska's Constitution remain the same, and so a rural subsistence preference remains unconstitutional under Alaska law.
When the federal government took over management of the subsistence use program, subsections (a), (b), and (c) of ANILCA § 805 went into effect.[25] These subsections direct the Secretary to establish regional advisory councils that are tasked with developing “a recommended strategy for the management of fish and wildlife populations within the region to accommodate such subsistence uses and needs.”[26] Each regional advisory council is to prepare “an annual report to the Secretary” on the recommended strategy.[27] The Secretary, in turn, “shall consider the report and recommendations of the regional advisory councils concerning the taking of fish and wildlife on the public lands within their respective regions for subsistence uses.”[28] The Secretary may choose not to follow the recommendations for a variety of reasons, but must “set forth the factual basis and the reasons for his decision.”[29]
In ANILCA, Congress also directed the Secretaries of the Interior and Agriculture to promulgate regulations in furtherance of ANILCA's directives.[30] Following McDowell, the Secretaries enacted temporary emergency regulations in 1990 creating the FSB and directing that “[s]ubsistence taking and uses of fish and wildlife on public lands shall be administered by a Federal Subsistence Board.”[31] The regulations became permanent and were updated several times, but the FSB's duties to “administer[] the subsistence taking and uses of fish and wildlife on public lands” remain the same.[32] The FSB is composed of:
A Chair to be appointed by the Secretary of the Interior with the concurrence of the Secretary of Agriculture; two public members who possess personal knowledge of and direct experience with subsistence uses in rural Alaska to be appointed by the Secretary of the Interior with the concurrence of the Secretary of Agriculture; the Alaska Regional Director, U.S. Fish and Wildlife Service; Alaska Regional Director, National Park Service; Alaska Regional Forester, U.S. Forest Service; the Alaska State Director, Bureau of Land Management; and the Alaska Regional Director, Bureau of Indian Affairs.[33]
Pursuant to 50 C.F.R. § 100.19, first promulgated in 1992 after a notice-and-comment process, the FSB has the authority to adopt “special actions.”[34] The FSB relied on this regulation in approving the emergency Kake hunt, which is discussed further below. Section 100.19(a), concerning “[e]mergency special actions,” provides in relevant part that “[i]n an emergency situation, if necessary . . . for public safety reasons, the Board may immediately open or close public lands for the taking of fish and wildlife for subsistence uses . . . .”[35]
At the heart of this lawsuit is the State's contention that “[n]othing in Title VIII of ANILCA authorizes hunting and fishing seasons to be opened by the Federal Subsistence Board” when the State has closed the season.[36] According to the State, the priority that ANILCA accords to subsistence uses of fish and wildlife applies only “when it is necessary to restrict taking in order to assure the continued viability of a fish or wildlife population or the continuation of subsistence uses of [such] population.”[37] The State therefore asserts that the FSB's regulation at 50 C.F.R. § 100.19 is “invalid to the extent [it] authorizes opening a hunting or fishing season.”[38]
Federal Defendants, on the other hand, contend that ANILCA creates “a federal regulatory scheme ‘to protect the resources related to subsistence needs' and ‘to provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so.'”[39] They maintain that the “duty to administer these directives resides with the Secretary of the Interior, who is authorized to ‘prescribe such regulations as are necessary and appropriate to carry out his responsibilities...
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