State v. Fed. Subsistence Bd.
| Citation | 501 F.Supp.3d 671 |
| Decision Date | 18 November 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 | United States District Courts. 9th Circuit. District of Alaska |
Cheryl R. Brooking, Attorney General's Office, Anchorage, AK, for Plaintiff.
Erin C. Dougherty Lynch, Native American Rights Fund, Lloyd B. Miller, Sonosky, Chambers, Sachse, Miller & Munson, LLP, Anchorage, AK, Heather Kendall-Miller, Matthew Neil Newman, Native American Rights Fund, Anchorge, AK, Richard D. Monkman, Sonosky, Chambers, Sachse, Miller & Munson, LLP, Juneau, AK, for Defendant-intervenor.
Paul A. Turcke, U.S. Department of Justice, Washington, DC, for Defendants.
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION REGARDING DELEGATION OF AUTHORITY TO OPEN EMERGENCY HUNTS
Before the Court at Docket 4 is the State of Alaska, Department of Fish and Game ("the State")’s Motion for Preliminary Injunction. Defendants responded in opposition at Docket 15.1 The State replied at Docket 22. 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").2 The State alleges that the FSB violated the Open Meetings Act, Title VIII of the Alaska National Interest Lands Conservation Act ("ANILCA"), Section 1314 of ANILCA, and the Administrative Procedure Act ("APA") by delegating authority to local land managers to open emergency hunts in response to COVID-19-related food security concerns, by authorizing a hunt near the Organized Village of Kake, and by voting on a request for an emergency hunt from the Koyukuk Tribal Village.3 The State moved for a temporary restraining order and preliminary injunction prohibiting Defendants from (1) delegating authority to local land managers without complying with the Open Meetings Act, (2) opening a hunt near the Organized Village of Kake, (3) opening any hunt for COVID-19 reasons, (4) refusing to share harvest information with the State, and (5) delegating administrative authority to entities outside of a federal agency.4
With the advent of the COVID-19 pandemic, the FSB received numerous requests from remote Alaskan communities for emergency hunting authorizations to address existing or potential food shortages.5 Among these were requests from the Organized Village of Kake ("OVK"), the Koyukuk Tribal Village, and the Organized Village of Saxman.6 The requesters explained that travel restrictions, reduced transportation of goods, and disruptions in national food supply had diminished or were expected to diminish their communities’ food supply.7
In April, 2020, the FSB "voted to authorize a process for sending letters of delegation to agency field managers to allow them to open ... hunting and fishing opportunities in response to any demonstrated emergency situation relating to food security that rises to the level of constituting a threat to public safety."8 The FSB rationalized that delegating the authority to the local land managers would help expedite a response to the incoming emergency requests.9 In a memorandum for the Secretary for the Department of the Interior, the Office of Subsistence Management described the proposed parameters of the delegation ("OSM Memorandum").10 It provides:
Thereafter, on June 2, 2020, the FSB issued letters of delegation to refuge managers and district rangers ("Delegation Letters").12 They provided, in part:
The FSB specified that the delegation of authority was established pursuant to 36 C.F.R. § 242.10(d)(6) and 50 C.F.R. § 100.10(d)(6) and was effective until June 1, 2021, unless rescinded by the FSB.14 It stressed that the delegated authority was limited to being able to "[o]pen, close, reopen a season, up to 60 days in duration ... [e]stablish individual or community harvest limits ... [s]pecify permitting requirements ... [and] [s]et harvest quotas ...."15 The Delegation Letters concluded by stating that "[i]n the event that the Alaska Unified Command Mass Care Group does not confirm the need for this special action, you will defer this special action to the Board."16
On June 4, 2020, Joel Jackson, the President of the OVK, wrote to the Petersburg District Ranger, Ted Sandhofer, to renew the OVK's request for an emergency hunt.17 Mr. Jackson explained that the "OVK and the community of Kake [were] in a very vulnerable situation" as limited resources were coming in and "[v]endors [were] having a more difficult time meeting the need of the stores in Kake."18 Upon receipt of this request, Mr. Sandhofer contacted the Mass Care Group, who informed him that they could not confirm any food shortage or supply chain disruption in Kake.19 He attempted to contact the ADF&G but failed to get any response.20 On June 12, 2020, Mr. Sandhofer deferred the OVK's request to the FSB.21
The FSB considered the request at a meeting on June 22, 2020, at which Mr. Jackson testified about the OVK's food security concerns.22 He stated that while the OVK was getting some meat, "it's not very good," and the "stores here are not able to secure everything that they ordered." 23
Mr. Jackson testified that the OVK was "trying to supply everybody in town with fresh fish" but that he was concerned about obtaining healthy meat for "our people, our elders and our tribal citizens."24 He added that they had just received a ferry shipment, but that it was the first one in half a year, and he "[did not] know when the next one would arrive."25
The FSB voted to approve a limited season of up to 60 days to be administered by the local federal land manager, Mr. Sandhofer.26 According to a declaration from Lisa Maas, the Acting Policy Coordinator and Wildlife Biologist for the OSM, the FSB considered Mr. Jackson's testimony, as well as evidence of the lack of conservation concerns for moose and deer in the area before voting.27 Additionally, several Board members stated that based on information concerning food supply line disruptions received directly from the President of the OVK, they "disagreed with the Mass Care Group's conclusion and hoped that in the future, better understanding of the Mass Care Group's information gathering process could be obtained."28 The FSB members "reiterated their obligations under Title VIII [of ANILCA] to provide for a rural subsistence priority and to take action to address food shortages and improve food security in the community."29
Pursuant to the FSB's authorization, Mr. Sandhofer issued a permit for "a Kake community harvest ... allowing the Organized Village of Kake to harvest up to 2 antlered bull moose and 5 male Sitka black-tailed deer ...."30 The permit specified that "[p]articipation in the season is limited to Federally qualified subsistence users selected by the Organized Village of Kake."31 Mr. Jackson confirmed that the harvest from the emergency hunt would be shared with the entire community.32 The hunt concluded on July 24, 2020 and the harvest was distributed to 135 households in the village.33
On June 3, 2020, the Koyukuk Tribal Village also renewed its request for an emergency hunt for 3 moose.34 After receiving the renewed request, the refuge manager for the region reached out to the Mass Care Group, which responded that it was "not aware of any substantial food shortage or food supply chain disruption due to COVID-19."35 On July 22, 2020, the State was informed that the FSB was voting on the request by e-mail with a July 27, 2020 deadline.36 Ms. Maas informed the State that "[g]iven the short/emergency nature of the request, a teleconference was not able to be convened."37
On August 10, 2020, the State commenced this action and moved for injunctive relief.38 On August 17, 2020, the Secretary of the Interior directed the FSB to temporarily pause its operations and suspend any decisions regarding requests for COVID-19-related emergency hunting or fishing authorizations until disposition of the preliminary injunction motion.39
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which "confer[s]...
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Alaska v. Fed. Subsistence Bd.
... STATE OF ALASKA, DEPARTMENT OF FISH AND GAME, Plaintiff, v. FEDERAL SUBSISTENCE BOARD, et al., Defendants, and ORGANIZED VILLAGE OF KAKE, Intervenor-Defendant. No. 3:20-cv-00195-SLG United States District Court, D. Alaska November 3, 2023 ... ... DECISION & ORDER ... ...
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State v. Fed. Subsistence Bd.
...v. Fed. Subsistence Bd. , Case No. 3:20-cv-00195-SLG, 2020 WL 5625897 (D. Alaska Sept. 18, 2020).8 Dep't of Fish & Game v. Fed. Subsistence Bd. , 501 F. Supp. 3d 671 (D. Alaska 2020).9 For citations, see Fed. Subsistence Bd. , 2020 WL 5625897, and Fed. Subsistence Bd. , 501 F. Supp. 3d 671.......
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