Case No. 3:20-cv-00195-SLG
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
December 3, 2021
DECISION & ORDER
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
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 [
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
[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
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 Care Group, which responded that it was unaware of any substantial food shortages or supply-chain disruptions. On July 22, 2020, the Office of Subsistence Management informed the State that the FSB was voting on the request by email with a July 27, 2020 deadline rather than by teleconference due to the emergency nature of the request. The FSB ultimately did not grant the Koyukuk Tribal Village‘s special action request.30
On August 17, 2020, a week after the State commenced this action and moved for preliminary injunctive relief, the Secretary of the Interior directed the FSB to temporarily suspend any decisions regarding requests for COVID-19
emergency seasons until disposition of the State‘s motions. This Court ruled on the State‘s motions on September 18, 2020 and November 18, 2020, concluding that the State had failed to show a likelihood of success or serious questions on the merits of its claims.31 The FSB has not granted any additional emergency special action requests to open hunting or fishing after this Court issued its second order in November 2020.32 The delegation letters lapsed on June 1, 2021, and the FSB has not renewed the delegation of authority.33
III. Game Management Units 13A and 13B
On July 16, 2020, the FSB held a public Work Session Meeting by teleconference. During the meeting, the FSB considered Wildlife Special Action 20-03 (WSA 20-03), a proposal that the Board close Federal public lands in [Game Management] Unit 13 to the hunting of moose and caribou by non-Federally qualified users for the 2020/21 season.34 Unit 13 is a popular area for moose and caribou hunting due to its road accessibility; it is divided into five subunits, A through E, of which Units 13A and 13B are the most accessible. In 2019, the FSB had rejected an identical proposal to close all of Unit 13 to non-federally qualified
users for the 2019/2020 season (the 2019 proposal), reasoning that the closure was not warranted under section 815 of ANILCA.
At the July 16 meeting, Lisa Maas, the Acting Policy Coordinator/Wildlife Biologist for the Office of Subsistence Management (OSM), presented a summary of the OSM staff‘s analysis of WSA 20-03 to the FSB. First, she explained that WSA 20-03‘s proponent made the request due to extreme hunting competition in Unit 13, that competition‘s negative effects on harvest
Ms. Maas next shared information about the caribou and moose population and discussed trends in harvest success rates. She noted the OSM‘s conclusion
that closure to continue subsistence uses of moose was warranted based on low moose harvest success rates for federally qualified users compared to non-federally qualified users. The OSM also concluded that closure for public safety reasons may be warranted because of the intense hunting pressure, overcrowding, disruption of hunts, and unsafe shooting practices . . . repeatedly stated by all user groups.37 Ms. Maas explained that the OSM supported WSA 20-03 with two modifications: (1) closing federal public lands to non-subsistence users only in Units 13A and 13B; and (2) extending the closure through the 2022 regulatory cycle to reduce the administrative burden associated with processing special action requests because no change in the situation was expected in the near future.38 After addressing questions from Board members, Ms. Maas also reported that the InterAgency Staff Committee (ISC) recommended adopting WSA 20-03 with the OSM‘s proposed modifications on the basis of public safety and subsistence concerns.
Following Ms. Maas‘s testimony, comments were solicited from the Regional Advisory Council Chairs and the Native Liaison for the OSM, but none were offered. Members of the public were again allowed to weigh in, and two testified—both in support of WSA 20-03. Finally, Ben Mulligan of ADF&G offered testimony on behalf of the State, reiterating the State‘s position that federal data did not
support the OSM‘s subsistence concerns and that WSA 20-03 would not improve public safety.
After the testimony concluded, the FSB deliberated and voted on WSA 20-03 with the OSM‘s proposed modifications. All but one FSB member voted in favor of the modified proposal, citing subsistence and public safety concerns. Chad Padgett of the Bureau of Land Management voted against the proposal based on his belief that the closure was unnecessary for conservation, continuation of subsistence uses, or public safety.
On July 31, 2020, the FSB issued a press release explaining the closure and answering common questions and concerns.39 The release included a map of the closure area and noted that non-federally qualified users could still take moose and caribou between the edge of the river and the ordinary high water mark along navigable waters but cautioned that both hunter and game must be above the actual water line . . . for the harvest to be legal.40
federally qualified users could take moose and caribou on gravel bars along navigable waters below the high water mark so long as the moose and caribou were not swimming.
LEGAL STANDARD
The State seeks invalidation of the FSB‘s actions surrounding the Kake hunt and the closure of Units 13A and 13B pursuant to § 706 of the Administrative Procedure Act.42 Section 706 provides that a reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . [or] in excess of statutory jurisdiction, authority, or limitations.43
The Ninth Circuit has detailed the circumstances under which an agency action is arbitrary and capricious:
[An] agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.44
By contrast, an agency action is proper if the agency considered the relevant factors and articulated a rational connection between the facts found and the
choices made.45 When determining whether an action is arbitrary and capricious, a court is not to substitute its judgment for that of the agency,46 particularly where the challenged decision implicates substantial agency expertise.47
When an agency action is based on factual conclusions drawn from the administrative record, the reviewing court must determine whether those conclusions are supported by substantial evidence.48 Substantial evidence is more than a mere scintilla but less than a preponderance.49 This standard is extremely deferential, requiring the reviewing court to uphold the [agency‘s] findings unless the evidence presented would compel a reasonable finder of fact to reach a contrary result.50
Agency action is not in accordance with the law when it conflict[s] with the
DISCUSSION
I. The Sunshine Act
The State contends that the FSB consistently and intentionally violates the open meetings requirement of the Sunshine [Act] and asks this Court for injunctive relief and an award of attorney‘s fees.53 Specifically, the State maintains that (1) the FSB did not publish a meeting notice for actions taken on April 9, 2020, April 14, 2020, nor for the July 22–27 email action taken on WSA 94-15; (2) [t]he administrative record does not include published notice for the June 22, 2020 or July 16, 2020 meetings; and (3) [t]he FSB regularly holds closed meetings without a vote to go into a closed session, including the closed executive sessions held before public meetings on April 20, 2020 and July 16, 2020.54 The State asserts that the FSB is a federal agency within the meaning of the Act and is thus bound to comply with its open-meeting provisions.55
In response, the FSB disputes that the Sunshine Act applies, asserting that the FSB is not an agency within the meaning of the Act‘s open-meeting provisions.56 In the alternative, the FSB asserts that even if the Act applies, the
FSB has complied with it and that even if the FSB violated the Act, the only remedy available under the Act is the release of transcripts.57
The open-meetings section of the Sunshine Act,
The Sunshine Act also contains specialized definitions of the terms agency, meeting, and member for purposes of § 552b:
(1) the term agency means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency;
(2) the term meeting means the deliberations of at least the number of individual
agency members required to take action on behalf of the agency where such deliberations determine or result in the joint
conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and
(3) the term member means an individual who belongs to a collegial body heading an agency.61
The FSB contends that it does not constitute a collegial body within the meaning of these provisions because none of [its] members, much less a majority, were appointed by the President with the advice and consent of the Senate.62 And it maintains that the FSB is not a subdivision thereof because it interprets the term to refer only to sub-groups of a collegial body.63 The State, by contrast, asserts that the FSB falls under the Act‘s definition of agency because Congress gave [the Secretaries of Interior and Agriculture] joint responsibilities on public lands in Alaska, and the Secretaries jointly adopted regulations that delegated their responsibilities to the FSB.64 Therefore, the State contends, [t]he Secretaries working together, and the FSB, are collegial bodies as described in the Sunshine Act.65
The Court finds that § 552b‘s definition of agency, when read together with nearby provisions, does not include the FSB.66 To begin with, the FSB is clearly
not a collegial body as defined by § 552b because none of its members are appointed by the President with the advice and consent of the Senate.67 Thus, the question is whether the FSB is covered by the Sunshine Act as a subdivision.68 Section 552b(a)(1) is ambiguous on this point; it is unclear from the section‘s wording whether subdivision thereof refers to a portion of the entire entity headed by a collegial body or only to a portion of the collegial body itself. However, the definitions that follow § 552b(a)(1) make clear that subdivision thereof refers solely to the collegial body.69 Section 552b(a)(2) defines meeting narrowly to cover only deliberations of at least the number of individual agency members required to take action on behalf of the agency. And § 552b(a)(3), in turn, defines member to mean an individual who belongs to a collegial body heading an agency. There cannot be a meeting under the Act without
encompass boards like the FSB that could not actually hold meetings as defined by the Act.70
The Northern District of Oklahoma and the Tenth Circuit reached this same conclusion when considering whether hearings conducted by the Nuclear Regulatory Commission‘s Atomic Safety and Licensing Board (ASLB) were covered under the Sunshine Act.71 Similarly to the FSB, the ASLB exercises power pursuant to a delegation of authority by the commissioners of the Nuclear Regulatory Commission.72 The commissioners are appointed by the President with the advice and consent of the Senate, but the ASLB does not itself include any commissioners.73 Given the ASLB‘s structure, the Northern District of Oklahoma concluded that the Sunshine Act did not apply to the ASLB‘s hearings because a board or panel without ‘members’ is not a ‘subdivision’ of an agency under the Sunshine Act.74 The district court explained that [i]f such boards or panels were meant to be covered, the ‘meeting’ requirement would have to be
ignored because meetings are deliberations of members.75 On appeal, the Tenth Circuit, too, concluded that the mandate for open hearings does not apply to an adjudicatory hearing before [the ASLB] because subdivision refers only to when a collegial body . . . has divided itself into sub-groups to conduct the business of the agency.76
The legislative history of the Sunshine Act, as noted by both courts in Hunt,77 also supports this reading of the Act. The Senate Report on the Act contains numerous statements about the open-meetings section that reflect the Senate‘s intent that § 552b apply only to decision-making bodies that include members of a collegial body. The report‘s Summary of the Legislation section describes section 201 of the Senate bill—which became
Section 201 applies to the Federal Election Commission and the 46 other Federal agencies headed by two or more Commissioners or similar officers appointed by the President with the advice and consent of the Senate. The bill requires meetings between heads of such agencies to be open to the public. . . .
Section 201(a) establishes the basic principle that all meetings between the heads of these collegial agencies must be open to the public. The term meeting is defined to include agency deliberations where at least a quorum of the agency‘s members meet to conduct or dispose of official agency business. Chance encounters which do not involve substantive discussions, and social events at which business is not discussed, would not be covered by the section. Nor does the bill cover discussions
between less than quorum of the Commission,
or discussions between a Commissioner and any number of staff employees.78
In its “Background and Purpose of the Legislation” section, the report states that the open-meetings section is intended to “increase the public’s confidence in government by permitting the public to observe firsthand the way agency heads carry out their duties.”79 And in a section discussing the open-meetings provisions in more detail, the report explicitly contrasts meetings involving agency heads with those involving only staff members, explaining why the former are subject to public scrutiny but the latter are not: “The agency heads are high public officials, having been selected and confirmed through a process very different from that used for staff members. Their deliberative process can be appropriately exposed to public scrutiny in order to give citizens an awareness of the process and rationale of decisionmaking.”80 The same section of the report also clarifies the term “subdivision thereof,” suggesting that such an entity must involve at least two agency heads:
Section 201(a) provides that all meetings of the individual Commissioners, board members, or the like, except those discussions exempted by subsection (b), must be open to the public. Included within this requirement are meetings of agency subdivisions authorized to take action on behalf of the agency. The open meeting requirement applies to panels of a Commission, or regional boards, consisting of two or more agency heads and authorized to take action on behalf of the agency. To be a subdivision of an agency covered by this subsection, the panel need not have authority to take agency action which is final in nature. Panels or boards composed of two or more agency members and authorized to submit recommendations, preliminary decisions, or the like to the full commission, or to conduct hearings on behalf of the agency, are required by the subsection to open their meetings to the public.81
The corresponding House Report, while less explicit on this point, also supports a reading of the Act that would exclude the FSB from the Act’s open-meeting requirements. In its discussion of section 3 of the House bill—now
Both reports also emphasize that the open-meeting provisions apply only to agencies “headed by a collegial body composed of two or more members.”84 The Senate Report explains the reasoning behind that decision: “Multiheaded agencies operate on the principle of give-and-take
Because the Sunshine Act does not apply to the FSB, the Court does not reach the parties’ arguments regarding whether the FSB’s actions would constitute a violation of the Sunshine Act and what the proper remedies for alleged violations of the Act are.
II. The Kake Hunt
The State asserts that the FSB’s actions regarding the Kake hunt violated the APA for several reasons. First and foremost, it maintains that “the FSB’s regulation at
In response, the FSB asserts that (1) its actions were lawful under the APA, ANILCA, and its own regulations; and (2) the State’s claims regarding the Kake hunt are moot, noting that “the Kake hunt occurred over a year ago and it was the only such hunt approved under the FSB’s COVID-19 delegation process that expired on June 1, [2021].”88 The Court will address the second contention as a threshold matter as the Court lacks jurisdiction to consider the merits of the State’s claims if they are moot and do not fall under an exception to the mootness doctrine.89
“The mootness doctrine ‘requires that an actual, ongoing controversy exist at all stages of federal court proceedings.’”90 A claim generally must be dismissed as moot if “events subsequent to
again be subject to the challenged activity . . . .’”94 Courts apply the capable of repetition, yet evading review exception “only in exceptional situations.”95
In its previous order at Docket 37, this Court found that the State’s claims regarding the Kake hunt were not moot as of November 2020—in part due to the “capable of repetition, yet evading review” exception.96 The Court explained then:
The State’s motion seeks to enjoin more than the Kake hunt: it asks the Court to enjoin Defendants from delegating regulatory authority to in-season managers, from opening any future hunt for COVID-19-related reasons, from refusing to share harvest information, and from delegating administrative authority outside of federal agencies. Thus, to the extent the State’s motion applies to future hunts, which could well occur during the pendency of this litigation, the completion of the Kake hunt does not render the State’s request for preliminary injunction moot.
As to the State’s challenges to the emergency Kake hunt itself, the Court obviously cannot grant the State the relief that it seeks. However, as the parties noted, there exists an exception to the mootness doctrine for a controversy that is “capable of repetition, yet evading review.” . . .
The Court concludes that the exception to the mootness doctrine applies to the emergency Kake hunt. These emergency hunts are necessarily limited to 60 days or less, which is too short a period of time to complete judicial review. Moreover, it is reasonably likely that Defendants may authorize other emergency hunts and that those hunts may be delegated to members of the community to oversee. The FSB’s delegation of authority to local land managers does not expire until June 2021, and the COVID-19 pandemic is ongoing.97
The FSB acknowledges the Court’s prior decision but contends that “today’s
The State appears to concede that—given the expiration of the delegation process—its claims are moot unless a mootness exception applies. It contends that the “capable of repetition, but evades review” exception is applicable here because it is “certainly possible” that the FSB could authorize similar hunts or issue further delegations in the future, and those incidents would be sufficiently brief to evade review.101 Regarding the likelihood of future actions, the State asserts that “there is no commitment by the FSB to not issue further delegations, nor is there a
commitment by the FSB to not, itself, authorize opening further Covid-19-related hunting or fishing seasons.”102 And it disputes the FSB’s claim that the pandemic has “abated considerably,”103 pointing to “the current pandemic surge throughout Alaska and the fact that hospitals are now overwhelmed,” which was certainly the case when its reply brief was filed on August 27, 2021.104
The Court is unpersuaded that the instant motion presents an “exceptional situation” justifying the application of the “capable of repetition, yet evading review” exception. The sixty-day length of the Kake hunt certainly satisfies the limited durational requirement of the exception,105 and the one-year length of the delegation likely does as well.106 But the exception also requires the plaintiff to demonstrate “a reasonable likelihood” that they will be subject to the same action again.107 This Court’s previous conclusion that the Kake hunt was subject to the exception was premised on the FSB’s then-ongoing delegation to local land managers,108 but that
demonstrate that another such delegation is reasonably likely. The parties appear to agree that the FSB had never delegated the authority to open emergency seasons before the 2020 delegation,109 and the FSB has not renewed the delegation or indicated any intention of doing so. Moreover, even when the 2020 delegation was active, the FSB only approved one emergency season: the Kake hunt. And while the State is correct that COVID-19 rates increased considerably this fall in Alaska, there is no indication in the record that food security concerns in rural communities are ongoing. Given all this, there is not a reasonable likelihood that the FSB will issue a similar delegation to local land managers or approve similar hunts in the future—thus, the State’s claims do not satisfy the “capable of repetition, yet evading review” exception to the mootness doctrine. Because the State’s claims regarding the Kake hunt must be dismissed as moot, the Court does not reach the merits of those claims.110
III. Closure of Units 13A and 13B
The State alleges that the FSB’s decision to close Units 13A and 13B to non-federally qualified users was arbitrary and capricious. The State bases this contention on the following grounds: First, the FSB violated ANILCA by imposing restrictions on an improper basis. Second, the record lacked substantial evidence to support the FSB’s closure decision. Third, the FSB closed state lands over which it has no authority in violation of ANILCA. Fourth, the FSB’s actions interfered with the State’s authority to manage wildlife in violation of ANILCA. Fifth, the FSB failed to provide a reasoned explanation for its change in position given that it rejected a similar proposal in 2019. Sixth, the FSB violated its own regulations by closing the units for longer than necessary. Seventh, the FSB violated “rules and procedures for its own operations that require public meetings.” And eighth, the FSB violated APA § 553 in imposing the closure because it “failed to provide proper notice and grace periods, where no exigency existed.”111 The Court does not address the State’s final two grounds because they were not raised in the State’s Complaint or Opening Brief but rather raised for the first time in the State’s Reply.112 The Court will address each of the State’s remaining contentions in turn.
First, the State asserts that “[n]othing in ANILCA or caselaw allows a closure to avoid competition from other hunters.”113 It points to section 815 of ANILCA,
which allows the federal government to adopt restrictions on non-subsistence uses if “necessary for the conservation of healthy populations of fish and wildlife, for the reasons set forth in section
The Court finds that the FSB instituted the closure on permissible bases under section 815. Although “competition” is not an enumerated reason for the restriction of non-subsistence uses under section 815, the Board clearly viewed competition between users as linked to both subsistence and public safety concerns—the overarching reasons for its decision to adopt WSA 20-03. When testifying before the FSB, Ms. Maas explicitly drew this connection, explaining the OSM’s conclusion that “[a] closure may reduce competition from non-Federally qualified users, increasing hunting opportunity and harvest success of Federally-qualified subsistence users.”117 Further, much of the testimony presented to the FSB linked public safety concerns to overcrowding. Given the clear connection between competition and two of the permissible bases for restrictions under section 815, it was not improper for the FSB to mention “competition” when discussing its subsistence and public safety rationales for adopting WSA 20-03 as modified.
Second, the State contends that “[t]he record lacks substantial evidence to support a conclusion that any closure, much less an extended closure, was necessary to continue subsistence.”118 It asserts that “the FSB disregarded written comments and relied solely on Lisa Maas, who selectively presented only partial information.”119 The State primarily disputes that federally qualified users are negatively impacted by competition from state hunters, noting that “[t]he record shows that federally qualified users had longer seasons for both moose and caribou, with the areas already to themselves without competition from hunters who may only hunt under State regulations.”120 It asserts that the FSB “ignored” information presented to it on this point, highlighting a memorandum submitted to
the Board by Mr. Mulligan that concluded that “[f]ederal hunt data does not support the interpretation that the number of state hunters in the field negatively impacts either moose or caribou hunt success on federal permits in Unit 13.”121 The State also asserts that the FSB’s suggestion that “federally qualified hunter success may be declining . . . is contradicted by information in the record that annual harvest rates have remained consistent.”122 Further, the State appears to suggest that there are other explanations
The State also disputes the FSB’s conclusion that public safety concerns warranted the closure. It quotes the Mulligan memorandum, which concluded that “no hunting-related accidents have been reported in Unit 13 to substantiate a public safety concern related to excessive hunting pressure.”124 The memorandum conceded that “questionable hunting practices do create a public safety concern when caribou are migrating across the Richardson Highway” because of “traffic jams caused by hunters walking on and/or parking on the
pavement of the Richardson Highway in narrow and dangerous sections of the road.”125 However, the memorandum maintained that this situation would occur regardless of whether state hunters were restricted from hunting caribou.126
The FSB responds that the State is merely “second-guessing the FSB’s exercise of discretion, which is not a sufficient basis for overturning an agency decision under the APA.”127 It maintains that it did not “fail[] to consider [the State’s] preferred facts” but rather “assigned them a different weight and drew different conclusions.”128 It points out that the State “list[s] a number of facts and issues that the FSB allegedly ‘ignored,’ but confusingly references pages in the transcript of the July 16, 2020, meeting where the FSB literally discussed those same facts and issues.”129 As one example, the FSB notes that federally qualified hunters’ additional harvest opportunities “[were] addressed in the OSM Staff Analysis, and were thereby considered by the FSB.”130
Moreover, the FSB disputes the State’s contention that federally qualified users have access to meaningfully greater harvest opportunities. It asserts that
“[a]ny discussion about additional opportunities for federal subsistence users in the form of a longer hunting season fails to recognize that, in recent years, ADFG has issued emergency orders extending its season beyond the approved end date of the [sic] September 21, which has negated the rural priority on public lands and undermined the FSB [sic] efforts to meet its mandate under Title VIII.”131 And it notes that “[w]hile the season for moose opens one month earlier for Federally-qualified subsistence users, ‘most moose are harvested in mid-September due to cooler weather and increased bull susceptibility to harvest’
Further, the FSB contends there was ample evidence in the record showing that “closure is warranted for continuations of subsistence uses.”133 It asserts that “[f]ederal subsistence harvest success rates have been lower than for State hunters, a fact noted by the FSB in reaching its decision.”134 In particular, it highlights subsistence hunters’ lower success rate for moose harvesting, noting that the fact that “those most dependent on the resource are suffering such
dismissal success rates in itself argues for action to be taken to continue subsistence uses.”135
The record demonstrates that the FSB relied on public safety concerns as one basis for adopting WSA 20-03 as modified.136 The FSB’s decision was based in part on testimony by the proponent, who stated that “the area is too crowded to safely hunt as people aim guns at one another and shoot over people’s heads,”137 and testimony by multiple members of the public who “echoed these safety and overcrowding concerns.”138 The OSM and the ISC cited public safety concerns when recommending that the FSB adopt the modified proposal.139 The FSB also adopted the closure as “necessary . . . to continue subsistence uses.”140 That determination was based on testimony by the proponent that a closure was
“necessary due to extreme hunting competition . . . which precludes a rural subsistence priority and results in low harvest success by Federally-qualified subsistence users,”141 testimony by members of the public,142 and household surveys in which “almost every Unit 13 community noted concern over non-local hunters[,] stating that non-local hunters who have lots of expensive equipment were out competing local hunters and driving game away.”143 The FSB
Maas’s testimony given that she not offering her personal opinion, but rather summarizing testimony and data from multiple other sources.
The record also reflects that the FSB considered alternatives to WSA 20-03 as modified. Mr. Peltola raised the possibility of limiting federal permits instead of imposing the closure.146 The OSM responded that permits issued under federal regulations had increased only slightly in the past several years, so it was unlikely that the suggested alternative would meaningfully reduce competition for subsistence users.147 FSB member Greg Siekaniec suggested a shorter temporary closure from September 21 to 30 to “provide that additional opportunity” for federally qualified users during the caribou season,148 which the OSM opined “would probably help the issue but . . . wouldn’t be a complete solution addressing the local subsistence users [sic] concern for the immense competition and safety . . . [and] would not really address the moose hunt at all.”149 Both Mr. Peltola and Mr. Siekaniec ultimately voted in favor of the modified proposal.150 While some members of the public and Mr. Padgett contended that public safety issues
were better addressed by increased law enforcement,151 other FSB members rejected that alternative as “outside of the Board’s purview.”152
Further, the FSB did not “ignore” opposing viewpoints as the State contends. At the July 16 meeting, the Board heard testimony in opposition to WSA 20-03 from members of the public and a representative of ADF&G, Mr. Mulligan.153 At the same meeting, Ms. Maas also summarized written comments in opposition from Resident Hunters of Alaska, opposing testimony given by members of the public during a previous public hearing on the matter, and written comments from ADF&G.154 The OSM’s Staff Analysis also addressed these comments and included Mr. Mulligan’s memorandum in full in an appendix.155
the record contained ample evidence to support the Board’s decision, and the Board articulated a rational connection between that evidence and its decision.
Third, the State contends that the FSB improperly closed State lands. It asserts that the FSB’s initial announcement of the closure “improperly informed the public that the federal closure also closed state lands, including submerged lands, within federal boundaries.”157 The FSB responds that it issued a revised press release on September 2, 2020, “clarifying that non-Federally qualified users can take moose and caribou on gravel bars along navigable waters below the ordinary high water mark even when the adjacent uplands are Federal public lands because those gravel bars are state-owned submerged lands.”158 But the State notes that the press release was issued after State caribou and moose seasons had begun and contends that it only partially corrected the FSB’s error because it “did not reflect that all navigable water below the high water mark is State land.”159
The original press release did not in itself close any state lands; but it did state that non-federally qualified hunters could “take moose and caribou between the edge of the river and the ordinary high water mark along navigable waters on BLM lands.”160 The release stated that hunting was permissible on “the strip of
land—often a gravel or mud bar—between the edge of the river and the ‘ordinary high water mark,’”161 which may have implied to some readers that gravel bars within the river were off limits; however, the release did not explicitly state that such gravel bars were closed to non-federally qualified users. The release also cautioned that “both the hunter AND the caribou must be above the actual water line . . . for the harvest to be legal.”162 Based on the briefing for the instant motion, both the State and the FSB now appear to agree that the State has authority over lands below the high water mark of inland navigable waters.163 Thus, to the extent that moose and caribou standing on the riverbed partially submerged in water are considered “below the water line,” the State is correct that the original press release misstated the bounds of federal and state lands.
The revised press release, while not a model of clarity, resolved the gravel-bar ambiguity and corrected the original press release’s error regarding submerged lands. First, the revised release simply stated that “non-Federally qualified users [can]
language requiring game to be above the actual water line, thus no longer advising hunters not to take moose or caribou standing on the riverbed. The revised release also noted that “the taking of swimming moose and caribou is prohibited under Federal and State law in all portions of Unit 13,”165 implying that taking game that is not swimming but rather standing in the water is permissible. Given the above, the Court finds that the revised press release does not inform the public that a non-federally qualified hunter is prohibited from taking a moose or caribou standing in navigable waters.
Fourth, the State maintains that the FSB’s approval of WSA 20-03 violated ANILCA because it impeded the State’s ability to manage wildlife as required by the Alaska Constitution. The State notes that ANILCA “expressly protect[s] the State’s authority to manage wildlife, including on federal public lands,” by requiring that closures by the federal government be “necessary” under section 815.166 This contention is not separable from the State’s first two claims, rejected above, that the FSB closed Units 13A and 13B on an improper basis and that the record lacked substantial evidence to support a closure to continue subsistence uses. By granting to federal agencies the authority to impose closures under certain circumstances, ANILCA necessarily tolerates some level of federal interference with state authority if an action is otherwise permissible under section 815. Thus,
because the FSB’s decision rested on proper grounds and was supported by substantial evidence, it did not upset the balance that ANILCA strikes between state and federal authority.
Fifth, the State asserts that the FSB violated the APA because “[t]here was no new factual information before the FSB in 2020 to support an arbitrary change in position after denying an identical proposal in 2019.”167 The Supreme Court addressed what the APA requires when an agency changes its policy in FCC v. Fox Television Stations, Inc.168 Per Fox, “a policy change complies with the APA if the agency (1) displays ‘awareness that it is changing position,’ (2) shows that ‘the new policy is permissible under the statute,’ (3) ‘believes’ the new policy is better, and (4) provides ‘good reasons’ for the new policy, which, if the ‘new policy rests upon factual findings that contradict those which underlay its prior policy,’ must include ‘a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.’”169
The State describes the 2019 proposal as “identical” and asserts that the policy change was not based on “new facts” because “selecting the areas where accessible federal public lands are located and extending the closure to two years[] do not constitute ‘new information’ brought before
The Court finds that the FSB’s decision to adopt WSA 20-03 after rejecting the 2019 proposal complies with Fox’s requirements for policy changes and thus was not arbitrary and capricious. First, the record demonstrates that the FSB displayed “awareness that it [was] changing position” during the 2020 deliberations.174 Mr. Siekaniec, for example, raised concerns over the similarity of the 2020 and 2019 proposals, which Ms. Maas addressed by explaining the difference in scope between the 2019 proposal and the OSM’s proposed
modification in 2020.175 The OSM and other FSB members referenced the 2019 proposal at other points throughout the work session as well.176 Second, the FSB asserts that the new policy is “permissible under the statute” as discussed above.177 Third, the FSB’s decision to adopt WSA 20-03 evidences its belief that the new policy is better.178
Whether the FSB must satisfy the fourth Fox requirement of a “reasoned explanation” for its policy change depends on whether it relied on factual findings that contradict those underlying its decision on the 2019 proposal.179 In rejecting the 2019 proposal, the Board reasoned that the closure was not warranted for continuation of subsistence uses because “[f]ederally-qualified subsistence users [sic] annual harvest rates have remained fairly consistent in comparison to the annual harvest rates by non-Federally-qualified users.”180 And it found that “the closure would not have alleviated public safety concerns as non-Federally-qualified users would still have been able to cross Federal public lands to access
State and private lands.”181 In 2020, by contrast, it adopted WSA 20-03 as modified because it determined that the closure was necessary to address public safety concerns and to continue subsistence
The FSB has fulfilled its duty to provide such a reasoned explanation. First, the record demonstrates that the OSM’s proposed modification to WSA 20-03, reducing its scope to only Units 13A and 13B, caused the FSB to weigh the available information differently than it had in 2019—concluding that a partial closure of Unit 13 was warranted even if a full closure was not. Indeed, one FSB member stated that he would have voted against WSA 20-03 in its unmodified form.184 Second, the FSB also considered newly available moose harvest success rates for federally qualified users, which showed that subsistence users were experiencing low success on both an absolute and relative scale.185 The Board highlighted this new information in concluding that a closure was warranted for
continuation of subsistence uses.186 Particularly given that “[m]ost moose harvest on Federal lands occurs in Unit 13B,”187 the FSB’s reliance on the proposed reduced scope of the closure and the new data about moose harvest success is sufficient to constitute a reasoned explanation for departing from the factual findings underlying the Board’s decision on the 2019 proposal.
Sixth, the State contends that the FSB violated its own regulation—
the regulatory cycle, “would justifiably reduce administrative burdens” due to the longstanding nature of the issues in Unit 13 and the fact that “‘no change in the situation’” was expected in the next year.191
The Court finds that the two-year closure did not violate § 100.19(b)(2)’s requirement that closures be only for the minimum time necessary. The OSM’s suggestion that extending the closure could reduce “administrative burden” was explicitly premised on its belief that the ongoing nature of the issues in Unit 13 would inevitably
CONCLUSION
For the foregoing reasons, Plaintiff’s request for declaratory and permanent injunctive relief is DENIED. The Court lacks jurisdiction over the issues associated with the Kake hunt because that portion of the State’s claims are moot, and the FSB’s decision to close Units 13A and 13B to non-subsistence users was not arbitrary or capricious.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 3rd day of December, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE