State v. Fed. Subsistence Bd.

• Citation: 574 F.Supp.3d 710
• Decision Date: 03 December 2021
• 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, and Organized Village of Kake, Intervenor-Defendant.
• Court: U.S. District Court — District of Alaska

574 F.Supp.3d 710

State of Alaska, DEPARTMENT OF FISH AND GAME, Plaintiff,

v.FEDERAL SUBSISTENCE BOARD, et al., Defendants,andOrganized Village of Kake, Intervenor-Defendant.

Case No. 3:20-cv-00195-SLG

United States District Court, D. Alaska.

Signed December 3, 2021

Cheryl R. Brooking, Attorney General's Office, Anchorage, AK, for Plaintiff.

Paul A. Turcke, Shannon Boylan, U.S. Department of Justice ENRD-NRS, Washington, DC, for Defendants Federal Subsistence Board, David Schmid, Sonny Perdue, III, Gene Peltola, Gregory Siekaniec, Chad Padgett, Don Striker, David Bernhardt, Anthony Christianson, Charlie Brower, Rhonda Pitka.

Erin C. Dougherty Lynch, Native American Rights Fund, Lloyd B. Miller, Sonosky, Chambers, Sachse, Miller & Munson, LLP, Anchorage, AK, Heather Kendall-Miller, Maggie Massey, Matthew Neil Newman, Native American Rights Fund, Anchorge, AK, Richard D. Monkman, Sonosky, Chambers, Sachse, Miller & Munson, LLP, Juneau, AK, for Intervenor-Defendant.

DECISION & ORDER

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

The State of Alaska, Department of Fish and Game ("the State") commenced this action on August 10, 2020 against the Federal Subsistence Board and several federal officials (collectively, "the FSB").¹ The Organized Village of Kake ("OVK") was permitted to intervene on September 14, 2020.² The State alleges that the FSB violated the Administrative Procedure Act ("APA"), the Alaska National Interest Lands Conservation Act ("ANILCA"), and the Government in the Sunshine Act ("the Sunshine Act") by (1) delegating authority to local land managers to open emergency hunts in response to COVID-19-related food-security concerns, authorizing an emergency hunt near the OVK, and voting on a request for an emergency hunt from the Koyukuk Tribal Village; and (2) 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.³ The State asks the Court to (1) enjoin the FSB from "interfering with the State's management," opening emergency hunts, and delegating authority outside of federal agencies; and (2) require the FSB to comply with ANILCA and the Sunshine Act.⁴ It also requests an award of attorney's fees and declaratory relief finding that the FSB violated the APA, ANILCA, and the Sunshine Act.⁵ This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, which "confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate."⁶

BACKGROUND

The Court set out the background in more detail in its previous orders at Docket 28⁷ and Docket 37.⁸ The relevant laws and facts are summarized here.⁹

I. Alaska National Interest Lands Conservation Act ("ANILCA")

In enacting ANILCA, Congress sought to preserve Alaska's "unrivaled scenic and geological values associated with natural landscapes," historic sites, and ecosystems, while also providing the continued opportunity for rural residents to engage in a subsistence way of life.¹⁰ Title VIII of ANILCA expresses Congress’ intent that "the utilization of the public lands in Alaska is to cause the least adverse impact possible on rural residents who depend upon subsistence uses of the resources of such lands."¹¹ Thus, Title VIII gives priority to subsistence uses, providing that

nonwasteful subsistence uses of fish and wildlife and other renewable resources shall be the priority consumptive uses of all such resources on the public lands of Alaska 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, the taking of such population for nonwasteful subsistence uses shall be given preference on the public lands over other consumptive uses.¹²

However, section 815 of Title VIII limits this subsistence priority by providing that "restriction[s] on the taking of fish and wildlife for nonsubsistence uses on the public lands" are not authorized "unless necessary for the conservation of healthy populations of fish and wildlife, for the reasons set forth in section 816 [ 16 U.S.C. § 3126 ], to continue subsistence uses of such populations, or pursuant to other applicable law."¹³ In turn, section 816 provides that "[n]othing in this title is intended to enlarge or diminish the authority of the Secretary to designate areas where, and establish periods when, no taking of fish and wildlife shall be permitted on the public lands for reasons of public safety, administration, or to assure the continued vitality of a particular fish or wildlife population."¹⁴

Congress authorized the Secretaries of the Interior and Agriculture to promulgate regulations in furtherance of ANILCA's directives,¹⁵ and the Secretaries created the FSB and charged it with "administering the subsistence taking and uses of fish and wildlife on public lands."¹⁶ 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.¹⁷

Pursuant to 50 C.F.R. § 100.19, the FSB has the authority to adopt "special actions." The Board relied on this regulation in approving the emergency Kake hunt and the closure of Units 13A and 13B.¹⁸ Section 100.19(a), concerning "emergency special actions," provides that

[i]n an emergency situation, if necessary to ensure the continued viability of a fish or wildlife population, to continue subsistence uses of fish or wildlife, or for public safety reasons, the Board may immediately open or close public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for take for subsistence uses, or close public lands to take for nonsubsistence uses of fish and wildlife, or restrict the requirements for take for nonsubsistence uses.¹⁹

Section 100.19(b), concerning "temporary special actions," provides that

[a]fter adequate notice and public hearing, the Board may temporarily close or open public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for subsistence take, or close public lands for the taking of fish and wildlife for nonsubsistence uses, or restrict take for nonsubsistence uses.²⁰

The FSB may not take temporary special actions unless "it determines that the proposed temporary change will not interfere with the conservation of healthy fish and wildlife populations, will not be detrimental to the long-term subsistence use of fish or wildlife resources, and is not an unnecessary restriction on nonsubsistence users."²¹ The length of any such action must "be confined to the minimum time period or harvest limit determined by the Board to be necessary under the circumstances," and a temporary opening or closure cannot "extend longer than the end of the current regulatory cycle."²²

II. The Kake Hunt

In April 2020, in response to the COVID-19 pandemic, 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."²³ On June 2, 2020, the FSB issued such letters to refuge managers and district rangers. The delegation letters provided that local land managers could "issue emergency special actions related to food security ... only for reasons of public safety " and required consultation with the Alaska Department of Fish & Game (ADF&G) "to the extent possible" prior to doing so.²⁴ The FSB also required local land managers to consult with the State of Alaska Unified Command Mass Care Group beforehand and instructed them to defer requests for special action to the Board if the Mass Care Group "[did] not confirm the need for [a] special action."²⁵ The letters specified that the delegation of authority was effective until June 1, 2021, unless rescinded before that date.²⁶

Soon after, Joel Jackson, the President of the OVK, wrote to the Petersburg District Ranger, Ted Sandhofer, to renew a previous request for an emergency hunt for the Kake community, citing food security concerns. Mr. Sandhofer, in turn, contacted the Mass Care Group, which informed him that they could not confirm any food shortage or supply-chain disruption in Kake. Accordingly, Mr. Sandhofer deferred the OVK's request to the FSB on June 12, 2020. He informed the FSB that he had attempted to contact ADF&G but did not receive a response.²⁷

The FSB considered the request at a June 22, 2020 meeting at which Mr. Jackson testified regarding the OVK's food security concerns. The FSB voted to approve a limited season of up to 60 days to be administered by Mr. Sandhofer, who then 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 per month."²⁸ The permit specified that "[p]articipation in the season is limited to Federally qualified subsistence users selected by the Organized Village of Kake,"²⁹ and Mr. Jackson confirmed that the harvest would be shared with the entire Kake community. The hunt concluded on July 24, 2020, and the harvest was distributed to 135 households in the village.

The Koyukuk Tribal Village also renewed a previous request for an emergency hunt in early June 2020. Like Mr. Sandhofer, the refuge manager for the region reached out to Mass...