31 F.4th 1157
9th Cir.2022Background:
- In 2016 the U.S. Fish and Wildlife Service (FWS) promulgated the "Kenai Rule," banning baiting of brown bears in Kenai National Wildlife Refuge and closing the Skilak Wildlife Recreation Area (Skilak WRA) to coyote, wolf, and lynx hunting.
- The Alaska Board of Game had liberalized bear hunting (including baiting) and opened Skilak to certain predator hunts; FWS had earlier blocked State-authorized baiting and closed Skilak in 2013–2014.
- FWS codified those restrictions without an EA or EIS, relying on a categorical exclusion; later it issued a broader "Refuges Rule" that Congress disapproved in 2017 under the Congressional Review Act.
- The State of Alaska and Safari Club International sued, alleging FWS exceeded authority under ANILCA and the Alaska Statehood Act, violated the Improvement Act, acted arbitrarily and capriciously under the APA, and failed to comply with NEPA.
- The district court granted summary judgment to FWS; the Ninth Circuit affirmed, holding federal authority over federal lands in Alaska permits the Kenai Rule and that FWS satisfied APA and NEPA standards.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal authority under ANILCA / Alaska Statehood Act | State: Alaska (and Safari Club) argued Statehood Act/ANILCA vest primary wildlife regulation to State, so FWS cannot restrict State-approved methods on federal lands | FWS: ANILCA preserves plenary federal control over federal refuges; Secretary may regulate uses on federal lands and preempt conflicting state law | Held: ANILCA and Property Clause authority allow FWS to regulate hunting on federal refuges; federal rules preempt conflicting state rules |
| Effect of 2017 joint resolution disapproving Refuges Rule | State: Congress’ disapproval of the Refuges Rule abrogates Kenai Rule or prevents similar federal restrictions | FWS: 2017 joint resolution addressed only the Refuges Rule; Kenai Rule is distinct and not voided by that resolution | Held: The joint resolution pertained to the Refuges Rule only and did not invalidate the Kenai Rule |
| Improvement Act priority for hunting in refuges | Safari Club: Improvement Act requires hunting receive priority consideration and disallows disfavoring hunting in areas like Skilak WRA | FWS: ANILCA authorizes designation of special areas and management for non-consumptive uses; Improvement Act does not entitle unrestricted State hunting across refuges | Held: FWS permissibly designated Skilak for non-consumptive uses; Improvement Act does not bar the Skilak WRA restriction |
| APA challenge—brown bear baiting (science, conservation, public safety, changed position) | Plaintiffs: ban conflicts with other regs, relies on improper predator-control rationale, lacks conservation/public-safety support, and departs from past compatibility findings without explanation | FWS: Final rule explains conservation and public-safety bases; relied on studies and agency expertise; prior documents do not control judicial review of the final action | Held: FWS provided a reasoned explanation supported by record and expertise; APA challenge rejected |
| APA challenge—Skilak WRA hunting ban (basis, record, change in position, procedural) | Safari Club: ban unsupported by data, record undermines findings, agency misstated reasons and failed to address prior compatibility determination; administrative-record issues | FWS: rational predictive judgments, consistent management objectives, administrative record suffices; proper notice and rulemaking procedures followed | Held: Ban on coyote/lynx/wolf hunting was rational and supported; no procedural defect requiring vacatur |
| NEPA (use of categorical exclusion) | Plaintiffs: Kenai Rule altered environmental status quo and extraordinary circumstances required an EA or EIS; CE application improper | FWS: action fits a CE for special regulations that maintain permitted levels of use; no extraordinary circumstances shown | Held: Even assuming NEPA applies, FWS reasonably applied a CE and any defects would be harmless; no remand required |
Key Cases Cited
- Bernhardt v. Ctr. for Biological Diversity, 946 F.3d 553 (9th Cir. 2019) (ANILCA/CRA context; limits on agency rules in Alaska)
- Kleppe v. New Mexico, 426 U.S. 529 (1976) (Property Clause permits federal regulation of wildlife on federal lands)
- Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (statutes read in overall scheme; deference to statutory context)
- Sturgeon v. Frost, 139 S. Ct. 1066 (2019) (ANILCA and scope of federal regulatory power over federal lands in Alaska)
- Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (review limited to agency's final reasons)
- Dep't of Commerce v. New York, 139 S. Ct. 2551 (2019) (courts review agency on grounds invoked in final action)
- Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87 (1983) (substantial deference to agency scientific determinations)
- Fox Television Stations, Inc. v. FCC, 556 U.S. 502 (2009) (agency may change positions if it provides a reasoned explanation)