State v. Bernhardt

• Decision Date: 13 November 2020
• Docket Number: Case No. 3:17-cv-00014-SLG,Case No. 3:17-cv-00013-SLG CONSOLIDATED
• Parties: State of ALASKA, Plaintiff, v. David L. BERNHARDT, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Federal Defendants, and Alaska Wildlife Alliance, et al., Intervenor-Defendants. Safari Club International, Plaintiff, v. David L. Bernhardt, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Federal Defendants, and Alaska Wildlife Alliance, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Alaska

500 F.Supp.3d 889

State of ALASKA, Plaintiff,

v.David L. BERNHARDT, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Federal Defendants,andAlaska Wildlife Alliance, et al., Intervenor-Defendants.

Safari Club International, Plaintiff,

v.David L. Bernhardt, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Federal Defendants,andAlaska Wildlife Alliance, et al., Intervenor-Defendants.

Case No. 3:17-cv-00013-SLG CONSOLIDATED

Case No. 3:17-cv-00014-SLG

United States District Court, D. Alaska.

Signed November 13, 2020

Cheryl R. Brooking, Attorney General's Office, Jessica Moats Alloway, State of Alaska, Department of Law, Anchorage, AK, for Plaintiff State of Alaska.

Brent R. Cole, Law Office of Brent R. Cole, P.C., Anchorage, AK, Anna M. Seidman, Pro Hac Vice, Regina Anne Lennox, Pro Hac Vice, Safari Club International, Washington, DC, for Plaintiff Safari Club International.

Michael S. Sawyer, John S. Most, U.S. Department of Justice, Washington, DC, for Federal Defendants.

Katherine G. Strong, Brian Litmans, Rachel Genna Briggs, Pro Hac Vice, Valerie L. Brown, Trustees for Alaska, Anchorage, AK, for Intervenor-Defendants.

ORDER RE MOTIONS FOR SUMMARY JUDGMENT

Sharon L. Gleason, UNITED STATE DISTRICT JUDGE

This is a consolidated action in which the State of Alaska and Safari Club International seek invalidation of portions of the Fish and Wildlife Service's Kenai Rule that prohibit certain hunting activities on the Kenai National Wildlife Refuge.¹ The challenged portions of the Kenai Rule codified restrictions on hunting within the Skilak Wildlife Recreation Area, prohibited certain firearms discharges along the Kenai and Russian rivers, and clarified that hunting brown bears over bait was not permitted on the Kenai National Wildlife Refuge.² Briefing on the merits was completed on August 20, 2020.³ Oral argument was held on September 25, 2020.⁴

BACKGROUND

The Kenai National Wildlife Refuge ("Kenai NWR") is a 1.92 million-acre refuge located on the Kenai Peninsula in Southcentral Alaska.⁵ The refuge was originally called the Kenai National Moose Range and was created in 1941 for the purpose of "protecting the natural breeding and feeding range of the giant Kenai moose on the Kenai Peninsula, which in this area presents ... an unusual opportunity for the study in its natural environmental of the practical management of a big game species that has considerable local economic value."⁶

The refuge was expanded and renamed as the Kenai NWR by Congress in 1980 with the passage of the Alaska National Interest Lands Conservation Act ("ANILCA").⁷ ANILCA also expanded the purposes of the Kenai NWR, identifying them as follows:

(1) To conserve fish and wildlife populations and habitats in their natural diversity including, but not limited to, moose, bears, mountain goats, Dall sheep, wolves and other furbearers, salmonoids and other fish, waterfowl and other migratory and nonmigratory birds;

(2) To fulfill the international treaty obligations of the United States with respect to fish and wildlife and their habitats;

(3) To ensure, to the maximum extent practicable and in a manner consistent with the purposes set forth in (1), above, water quality and necessary water quantity within the Refuge;

(4) To provide, in a manner consistent with (1) and (2), above, opportunities for scientific research, interpretation, environmental education, and land management training; and

(5) To provide, in a manner compatible with these purposes, opportunities for fish and wildlife-oriented recreation.⁸

In 1982, the United States Fish and Wildlife Service ("the Service") and the State of Alaska ("the State") entered into a Master Memorandum of Understanding ("MMU") which "reflects the general policy guidelines within which the two agencies agree to operate" with respect to the Kenai NWR.⁹ The MMU lays out a cooperative approach under which the Service and the State agree "[t]o consult with each other when developing policy and legislation which affect the attainment of wildlife resource management goals and objectives or management plans."¹⁰ In the MMU, the State agreed "[t]o recognize the Service as the agency with the responsibility ... on Service lands in Alaska to conserve fish and wildlife and their habitats and regulate human use."¹¹ The MMU also states that "the taking of fish and wildlife ... on Service lands in Alaska is authorized in accordance with applicable State and Federal law unless State regulations are found to be incompatible with documented Refuge goals, objectives, or management plans."¹²

ANILCA instructs the United States Secretary of the Interior ("Secretary") to "prepare, and from time to time, revise, a comprehensive conservation plan ... for each refuge."¹³ Between 1980 and 1985, the Service worked with the public and the State to develop the first Comprehensive Conservation Plan ("CCP") for the Kenai NWR.¹⁴ The first CCP was completed in 1985.¹⁵ It offered broad management guidance and provided that "[t]he entire refuge would remain open to hunting and trapping, except for areas where public safety is a concern" as well as "the Skilak Loop Special Management Area, where special restrictions on hunting and trapping will apply."¹⁶ The CCP provided that the Skilak Loop Special Management Area "would be managed to provide enhanced opportunities for wildlife viewing."¹⁷ In 1988, this area was renamed the Skilak Wildlife Recreation Area ("Skilak WRA").¹⁸

Pursuant to the CCP, the Service created a species management plan for the Skilak area to provide "wildlife viewing and interpretation opportunities."¹⁹ In 1987, the Alaska Board of Game ("BOG") adopted regulations that had been jointly proposed by the Service and the Alaska Department of Fish and Game; the regulations prohibited trapping, allowed taking of small game by archery, and provided for a moose hunt by special permit within the Skilak area.²⁰ The Service developed public use facilities for the Skilak WRA over the following years.²¹

In 1993, the Service issued nationwide refuge-specific hunting and fishing regulations.²² A section titled "General provisions regarding hunting on wildlife refuges" stated that the "unauthorized distribution of bait and the hunting over bait is prohibited on wildlife refuge areas. (Baiting is authorized in accordance with State regulations on national wildlife refuges in Alaska)."²³ The regulations further provided that "Alaska refuges are opened to hunting, fishing and trapping pursuant to the Alaska National Interest Lands Conservation Act."²⁴

In 1997, Congress passed the National Wildlife Refuge System Improvement Act ("Improvement Act").²⁵ The Improvement Act consolidated all the various wildlife refuges, wildlife ranges, game ranges, and other areas for the protection of fish and wildlife into the National Wildlife Refuge System.²⁶ The system is administered by the Director of the Fish and Wildlife Service. A provision in the Improvement Act states that in the event of a conflict between provisions in the Improvement Act and ANILCA, "the provision in [ANILCA] shall prevail."²⁷

The Improvement Act strives for consistency between state and federal hunting regulations, stating that federal regulations "shall be, to the extent practicable, consistent with State fish and wildlife laws, regulations, and management plans."²⁸ The Act also provides that "compatible wildlife-dependent recreational uses are the priority general public uses of the [National Wildlife Refuge] System and shall receive priority consideration in refuge planning and management."²⁹ A "compatible use" is defined as "a wildlife-dependent recreational use or any other use of a refuge that, in the sound professional judgment of the Director [of the Fish and Wildlife Service], will not materially interfere with or detract from the fulfillment of the mission of the [National Wildlife Refuge] System or the purposes of the refuge."³⁰ The Improvement Act additionally provides that "when the Secretary [of the Interior] determines that a proposed wildlife-dependent recreational use is a compatible use within a refuge, that activity should be facilitated, subject to such restrictions or regulations as may be necessary, reasonable, and appropriate."³¹ However, the Improvement Act also instructs the Director of the Fish and Wildlife Service not to "initiate or permit a new use of a refuge or expand, renew, or extend an existing use of a refuge, unless the Secretary has determined that the use is a compatible use and that the use is not inconsistent with public safety."³²

In 2007, the Service issued a Compatibility Determination ("CD") pursuant to the Improvement Act that found black bear baiting for the purposes of hunting was a compatible use of the Kenai NWR.³³ Black bear baiting was permitted by federal regulation in accordance with state regulations.³⁴ The CD was limited only to baiting black bears;³⁵ brown bear baiting in the Game Management Unit that contains the Kenai NWR was not allowed under state law at that time.

In 2007, the Service also published a Revised Final Management Plan for the Skilak WRA.³⁶ The Service did so after completing a draft plan and accompanying draft environmental assessment ("EA") in 2006 pursuant to the National Environmental Protection Act ("NEPA") that resulted in a Finding of No Significant Impact.³⁷ Although the Service considered opening the Skilak WRA to the hunting of small game as well as lynx, coyote, red fox, and squirrel, that proposal was ultimately rejected.³⁸ Instead, the final plan maintained the Skilak WRA as "a special area ... that would be managed to increase opportunities for wildlife viewing, and environmental education and interpretation."³⁹ However, the Service did approve a limited "youth-only" small game firearms hunt.⁴⁰ That same year, the BOG adopted State regulations that were consistent with the Revised Final Management Plan.⁴¹

In 2010, the Service...