62 F.4th 1177
9th Cir.2023Background
- In 2020 the Federal Subsistence Board (FSB) approved two special actions on federal public lands in Alaska: an emergency Kake hunt (to address food-security/public-safety concerns) and a temporary partial closure of Game Management Unit 13 to nonsubsistence hunters.
- The Organized Village of Kake intervened; Alaska sued the FSB and federal officials alleging violations of ANILCA and the APA.
- The Kake hunt was completed before the district court decision; the district court deemed related claims moot.
- The partial Unit 13 closure expired in June 2022; the district court had upheld the closure on the merits but its decision was subject to appeal.
- The Ninth Circuit held that Alaska’s claim challenging the FSB’s statutory authority to open emergency hunts falls within the ‘‘capable of repetition, yet evading review’’ mootness exception and reversed the dismissal as to that claim.
- The court found Alaska’s challenge to the partial Unit 13 closure is moot because future closures will be based on new hearings, consultations, and factual analyses; it vacated the district court’s decision as to that claim and remanded with instructions to dismiss it as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alaska’s ANILCA challenge to the FSB’s authority to open emergency hunts (Kake hunt) is excepted from mootness | The claim attacks the FSB’s general statutory authority to open emergency hunts; such actions are short-lived and likely to recur | The Kake hunt was COVID-specific and unlikely to recur under changed conditions | Exception applies: the claim is capable of repetition yet evading review; reversal as to this claim and remand for further proceedings |
| Whether the appellate court should decide the merits of the Kake-authority claim in the first instance | Ask the court to resolve the statute-interpretation question now | The trial court did not decide the merits; appellate court should not decide anew | Court declines to decide merits in first instance and remands to district court for full resolution |
| Whether Alaska’s challenge to the partial Unit 13 temporary closure is excepted from mootness | Closure concerns (crowding, safety, subsistence impacts) could recur and evade review | Regulations require new hearings, State consultation, and fresh factual analysis for each temporary closure, making repetition unlikely | Not excepted: claim is moot; vacate district-court ruling on this claim and remand with instruction to dismiss as moot |
| Whether the FSB acted arbitrarily or capriciously in ordering the partial Unit 13 closure | The closure decision lacked adequate justification and process | FSB considered new analyses, public comment, and limited the closure to subunits 13A/13B; action was within regulatory process | Appellate court did not reach the merits (claim dismissed as moot); district-court merits ruling vacated as to this claim |
Key Cases Cited
- Native Vill. of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201 (9th Cir.) (mootness burden and repetition/evasion analysis)
- Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851 (9th Cir. 1999) (framework for the repetition/evading-review exception)
- Biodiversity Legal Found. v. Badgley, 309 F.3d 1166 (9th Cir. 2002) (short-duration actions evade review)
- Murphy v. Hunt, 455 U.S. 478 (U.S. 1982) (standard for mere possibility vs. reasonable expectation of repetition)
- Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774 (9th Cir. 2012) (evidence of past agency practice supports recurrence)
- Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1992) (reliance on same agency rationale/report supports nonmootness)
- Idaho Dep’t of Fish & Game v. Nat’l Marine Fisheries Serv., 56 F.3d 1071 (9th Cir. 1995) (new biological opinions or reports undercut recurrence argument)
- United States v. W. T. Grant Co., 345 U.S. 629 (U.S. 1953) (public interest militates against mootness when legal uncertainty affects management)
- All. for the Wild Rockies v. Savage, 897 F.3d 1025 (9th Cir. 2018) (vacatur practice when mootness not caused by party seeking vacatur)