The Alaska Legislative Council et al. v. Babbitt, 98-5405

• Decision Date: 13 July 1999
• Docket Number: No. 98-5405,98-5405
• Citation: 181 F.3d 1333
• Parties: (D.C. Cir. 1999) The Alaska Legislative Council, et al., Appellants v. Bruce Babbitt, Secretary, United States Department of the Interior, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1333

181 F.3d 1333 (D.C. Cir. 1999)

The Alaska Legislative Council, et al., Appellants v. Bruce Babbitt, Secretary, United States Department of the Interior, et al., Appellees

No. 98-5405

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 1999

Decided July 13, 1999

Appeal from the United States District Court for the District of Columbia (98cv00069)

Mark L. Pollot argued the cause for appellants. With him on the briefs was Robin W. Grover.

Elizabeth Ann Peterson, Attorney, U.S. Department of Justice, argued the cause for the federal appellees. With her on the brief were Lois J. Schiffer, Assistant Attorney General, David C. Shilton and Dean K. Dunsmore, Attorneys.

Robert C. Erwin was on the brief for amici curiae Dale Bondurant, et al.

Walter T. Featherly was on the brief for amici curiae Mary Bishop, et al.

Before: Wald, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

The Alaska Legislative Council is a "permanent interim committee and service agency of the legislature." See Alaska Stat. § 24.20.010 (Michie 1996). It is "composed of the president of the senate and six other senators appointed by the president, and the speaker of the house of representatives and six other representatives appointed by the speaker." See id. § 24.20.020. In January 1998, the Council and seventeen individual members of the Alaska State Legislature, in their capacities as legislators and as individuals, brought a complaint in the district court objecting to the Alaska National Interest Lands Conservation Act and the actions of the federal government thereunder.

The complaint, which sought declaratory and injunctive relief, focused on the federal management of subsistence taking of fish and wildlife on federal public lands in Alaska pursuant to the Lands Conservation Act. Of the individual plaintiffs, two claimed they ate fish and game from Alaska, two alleged they engaged in fishing, two alleged they engaged in hunting, eleven said they hunted and fished in the State; all claimed that the defendants' actions would adversely affect their hunting or fishing or their consumption of fish and game. The Lands Conservation Act, according to the complaint, infringes on State prerogatives in violation of the Commerce Clause, the Enumerated Powers Doctrine and principles of federalism embodied in the Tenth and Eleventh Amendments to the United States Constitution; the Act's rural subsistence use priority violates the equal protection component of the due process clause of the Fifth Amendment to the United States Constitution, because it discriminates between users of land on the basis of residency; and the federal government's implementation of the Act violates the Administrative Procedure Act. See Alaska Legislative Council v. Babbitt, 15 F.Supp.2d 19, 21 (D.D.C. 1998).

Several years before the Council filed its action here, the State of Alaska brought a complaint raising similar allegations. See Katie John v. United States, 1994 WL 487830 at *5 (D. Alaska Mar. 30, 1994). On its own motion, the district court in Alaska concluded that the State's complaint was without merit and dismissed it. See id. at *9. The State filed a notice of appeal, but later stipulated to a dismissal with prejudice. See State of Alaska v. Babbitt, 72 F.3d 698, 700 n.2 (9th Cir. 1995). The Ninth Circuit denied the motion of the Alaska State Legislature to intervene or to substitute itself as the appellant. See id.

In view of these earlier proceedings, the district court dismissed this complaint on the ground of res judicata, and also on the grounds that the statute of limitations had run on certain claims and that others were not ripe. See Alaska Legislative Council, 15 F.Supp.2d at 22-23, 24, 26. We affirm, but not entirely for the reasons given by the district court.

I

A

The initial question, which we decide against the plaintiffs, is whether the district court had jurisdiction to adjudicate the constitutional and statutory claims of the Council and of the individual legislators, in their official capacity, regarding the Act's creation of a hunting and fishing "priority" for rural subsistence users on federal public lands in Alaska, and the federal defendants' implementation of the Act. To understand why we believe the court could not hear this aspect of the case--why, that is, the plaintiffs lacked standing--it is necessary first to offer a brief description of the Alaska National Interest Lands Conservation Act.

Enacted in 1980, the Lands Conservation Act had as one of its stated purposes to maintain "sound populations of, and habitat for, wildlife species of inestimable value to the citizens of Alaska and the Nation," and to "provide the opportunity for rural residents engaged in a subsistence way of life to continue to do so." See Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487, 94 Stat. 2374 (1980), 16 U.S.C. § 3101(b), (c). To this end, the Act established a priority for "the taking on public lands of fish and wildlife for nonwasteful subsistence uses ... over the taking on such lands of fish and wildlife for other purposes." See 16 U.S.C. § 3114(a). The Act defined "subsistence uses" as the "customary and traditional uses ... of wild, renewable resources for direct personal or family consumption," by "rural Alaska residents"--those persons who reside in communities or areas that are "substantially dependent on fish and wildlife for nutritional and other subsistence uses." See 16 U.S.C. § 3113. If it became necessary to limit subsistence taking of fish and game, the Act provided that the priority would be implemented through limitations "based on the application of the following criteria: (1) customary and direct dependence upon the populations as the mainstay of livelihood; (2) local residency; and (3) the availability of alternative resources." See 16 U.S.C. § 3114(a).

The Act applied to federal public lands in Alaska, that is, to lands "the title to which is in the United States." See 16 U.S.C. § 3102(2), (3). Public lands, as defined in the Act, do not include "land selections of the State of Alaska which have been tentatively approved or validly selected under the Alaska Statehood Act¹ and lands which have been confirmed to, validly selected by, or granted to the Territory of Alaska or the State under any other provision of Federal law." See 16 U.S.C. § 3102(3)(A).

The Act authorized the State of Alaska to "assume management for the taking of fish and wildlife on the public lands for subsistence uses pursuant to this title," on condition that the State enacted and implemented laws of general applicability consistent with the Act's subsistence use priority, definitions and local and regional participation requirements. See 16 U.S.C. § 3115(d)(1). As of 1978, the State of Alaska had adopted a statute giving "subsistence uses ... priority over sport and commercial uses." See Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168, 170-71 (Alaska 1985). Subsistence uses were defined as "customary and traditional uses ... for direct personal or family consumption." See id. at 170. Limiting criteria contained in regulations promulgated by the Alaska Board of Fisheries determined subsistence users by their area of residence. See id. at 172 n.8, 174. On May 14, 1982, after the Secretaries of the Interior and Agriculture reviewed and approved the State's regulatory scheme, Alaska became responsible for all regulation of subsistence uses of its wild renewable resources.

In February 1985, the Supreme Court of Alaska invalidated the Board's limiting criteria as inconsistent with state law. See Madison, 696 P.2d at 178. The Interior Secretary then withdrew certification of the State's regulatory scheme. When the State later amended its legislation to limit subsistence use to use by residents of rural areas, the Alaska Supreme Court declared the amended statute in violation of the State Constitution. See McDowell v. State of Alaska, 785 P.2d 1, 9 (Alaska 1989). The court stayed the effect of its decision until July 1, 1990. At that time, the State had no laws in effect consistent with the Lands Conservation Act's rural subsistence use priority. The Department of the Interior and the Department of Agriculture jointly published temporary fish and wildlife management regulations, applicable to public lands as defined by the Act, implementing the rural subsistence priority.² See Temporary Subsistence Management Regulations for Public Lands in Alaska, 55 Fed. Reg. 27,114, 27,118 (1990). The final regulations, promulgated in May 1992, made no significant changes to the scope of federal authority. See Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C, 57 Fed. Reg. 22,940 (1992).

B

As to the claims of the Council and the individuals in their official capacity as state legislators, we are guided by Raines v. Byrd, 521 U.S. 811 (1997), a decision rejecting the standing of members of Congress in federal court, and the Supreme Court's interpretation in Raines of Coleman v. Miller, 307 U.S. 433 (1939), a case dealing with the standing of state legislators. Raines involved claims brought by federal legislators against executive branch officials, and applied a particularly rigorous standing analysis in light of the separation-of-powers concerns raised in that case. See Raines, 521 U.S. at 819-20, see also Chenoweth v. Clinton, No. 98-5095, slip op. at 7 (D.C. Cir. July 2, 1999). But the Court did not limit its analysis to interbranch disputes, and we read its discussion of Coleman to apply to suits brought by state as well as federal legislators. The bottom line is that the claimed injuries of the individual Alaskan legislators and the Council are not legally or judicially cognizable. The injuries are not "personal" or particularized to them; and they have not established a "personal stake" in the...