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Ninilchik Traditional Council v. United States



The Ninilchik Traditional Council (NTC) brought a lawsuit against the United States seeking review of the Federal Subsistence Board’s decision to impose an antler size restriction on subsistence uses of moose within a Game Management Unit (GMU) pursuant to the Alaska National Interest Lands Conservation Act (ANILCA).[1] After a remand from the Ninth Circuit,[2] the District of Alaska entered summary judgment for the United States, and NTC appealed. The Ninth Circuit affirmed in part and reversed in part.

In 1980, Congress enacted ANILCA to protect the viability of subsistence living for rural Alaskans.[3] To ensure a way of life essential to native and non-native traditional existence, Congress accorded rural Alaskan residents the priority of “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.”[4] The State of Alaska, as authorized under ANILCA, chose to supplant federal management by establishing its own regulatory scheme for subsistence use preferences.[5] However in 1989, the Alaska Supreme Court held that the state subsistence laws violated the Alaska Constitution because the rural residency criterion excluded urban residents from subsistence hunting.[6] Because Alaska was not in compliance with ANILCA, the United States assumed regulatory authority on July 1, 1990.[7]

For administrative purposes, the Secretary of Interior divided Alaska into twenty-six GMUs.[8] GMU 15 is on the Kenai Peninsula and is divided into three subparts: 15A, 15B, and 15C. When Alaska managed the subsistence use priority, the state prohibited subsistence hunting on most parts of the Kenai Peninsula because of the Peninsula’s classification as nonrural. Alaska also restricted nonsubsistence hunting of moose on the Peninsula by limiting hunters to taking bulls having a spike or fork antler, a 50-inch antler spread, or at least three brow tines on one antler. The purpose of these antler restrictions was to protect the breeding class of bulls. When the federal government assumed ANILCA regulatory authority, it adopted the state’s antler restrictions and initially prohibited subsistence hunting in GMU 15.[9]

In 1992, the Board determined that the community of Ninilchik qualified as rural, but did not make any findings as to traditional uses of moose.[10] NTC unsuccessfully petitioned the Board to make the requisite findings and permit subsistence hunting of moose and caribou. The Board established the South Central Regional Council, and in 1995, the Regional Council recommended that the Board permit subsistence hunting in GMU 15. It specifically urged the Board to make a positive finding of customary and traditional use of moose by the Ninilchik and to authorize a subsistence hunt with a seasonal limit of one bull per hunter with no antler size restrictions. The Board issued its final rule in August 1995, adopting the Regional Council’s recommendation with respect to traditional use of moose in GMUs 15B and 15C, but deferred a decision regarding 15A.[11] The Board also extended the antler restriction to subsistence hunters in GMUs 15B and 15C and reserved the first ten days of the hunting season for subsistence hunts.[12] NTC petitioned for reconsideration, and because the Board did not act on this request before moose season started, NTC filed an action in district court seeking a temporary restraining order, as well as declaratory and injunctive relief.[13] The district court denied NTC’s request because NTC failed to exhaust ANILCA’s administrative remedies.[14] The parties then settled and the district court dismissed the case without prejudice.[15]

On January 26, 1996, NTC filed a second complaint in district court challenging the Board’s antler restriction in GMUs 15B and 15C and the deferral of determination for GMU 15A. In June 1996, the district court upheld the antler size restriction, but remanded the GMU 15A determination.[16] On remand, the Board made a positive finding for Ninilchik’s traditional use of moose in GMU 15A, extended the antler restriction to GMU 15A, and reserved the first two days of the hunting season for subsistence hunts. In October 1996, NTC filed an amended complaint challenging the validity of the antler restriction and moved for summary judgment. The district court denied the motion and dismissed the case for lack of jurisdiction because NTC failed to exhaust ANILCA’s administrative remedies.[17] The Ninth Circuit reversed and remanded to the district court for reconsideration on the merits.[18] On remand, the district court ruled in favor of the United States.[19]

The Ninth Circuit examined section 3114 of ANILCA to review the Board’s interpretation of the term “priority.”[20] The Board read that provision to require that priority be given to subsistence uses in the form of a meaningful preference over other uses. NTC argued that the Board must accord an absolute priority to subsistence hunters by eliminating all nonsubsistence uses before restricting subsistence uses in any way. The court reviewed the Board’s interpretation of the term with deference to the Secretary of Interior, rejecting NTC’s request for de novo review. Because Congress delegated to the Secretary the authority to prescribe regulations to carry out ANILCA’s requirements and because the court previously deferred to the Secretary’s interpretations of ANILCA, the court accorded deference to the Secretary’s statutory interpretation.[21]

ANILCA’s goals are “to preserve wilderness resource values” and “to provide for the maintenance of sound populations of . . . wildlife.”[22] The Ninth Circuit emphasized that Congress qualified its preference for subsistence use by requiring restrictions, if necessary, for the “continued viability” of such populations: “Subsistence living, although at the heart of ANILCA, is not a per se preemptive statutory priority.”[23] Considering the statute as a whole, the court held that the Board’s construction of the term “priority” was reasonable and allowed the Board “to balance the competing aims of subsistence use, conservation, and recreation, while at the same time providing subsistence hunters with a meaningful use preference.”[24]

The Ninth Circuit then reviewed whether the antler restriction on subsistence hunters in GMU 15 contravened the priority requirement. Because ANILCA does not impose any specific standard of review for agency actions, the court reviewed the Board’s antler restriction using the Administrative Procedure Act’s[25] “arbitrary and capricious” standard as a default standard of judicial review.[26] The court applied the arbitrary and capricious standard to determine whether the antler restriction “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”[27] The court asked whether the Board’s application of the antler restriction was necessary “to protect the continued viability” of the moose population.[28] The Ninth Circuit concluded that the Board considered the effects of alternative management strategies and held that the Board considered the relevant factors in concluding the antler restrictions were necessary to protect the moose population.

Finally, the court examined whether the Board’s decision to open the advance moose harvest season only to subsistence hunts qualified as a meaningful preference. For GMUs 15B and 15C, the Board had decided to reserve the first ten days for subsistence hunts only; for GMU 15A, the first two days were reserved. Although the record was not well developed in this regard, the court indicated that the Board “considered the germane factor with respect to GMUs 15B and 15C.”[29] The Board considered a report from the staff of the United States Fish and Wildlife Service explaining that the largest portion of the harvest takes place during the first five days of the moose season and that the Board’s ten day reserve for subsistence hunters “would allow for 25 to 28 additional moose to be taken by subsistence hunters.”[30] Because the Board relied on this analysis, the Ninth Circuit found no grounds to reject the Board’s judgment as arbitrary and capricious.

The Ninth Circuit held, however, that the Board failed to provide any support for its conclusion that the two-day reservation for subsistence hunts in GMU 15A qualified as a priority. The United States cited its decision as a compromise to prevent a conflict with a state-regulated nonsubsistence bow-and-arrow hunt. The court rejected the Board’s reasoning, highlighting that “[b]y its own admission . . . the Board restricted the harvesting of moose for subsistence uses in order to give preference to non-subsistence hunting in violation of the plain language of section 3114.”[31] Because the Board’s record was void of any evidence indicating how the two-day reservation for subsistence hunts qualified as a meaningful preference, the Ninth Circuit held the Board’s determination to be arbitrary and capricious and remanded the issue to the district court.[32]

[1] 16 U.S.C. §§ 3101-3233 (1994 & Supp. V 1999).

[2] Ninilchik Traditional Council v. United States (Ninilchik I), 152 F.3d 928 (9th Cir. 1998).

[3] 16 U.S.C. § 3101(c) (1994 & Supp. V 1999).

[4] Id. § 3114.

[5] Id. § 3115(d); 1986 Alaska Sess. Laws, ch. 52.

[6] McDowell v. State, 785 P.2d 1, 9 (Alaska 1989).

[7] Subsistence Management Regulations for Public Lands in Alaska, 57 Fed. Reg. 22,940 (May 29, 1992) (codified at 50 C.F.R. §§ 100.1-100.27 (2000)).

[8] 50 C.F.R. § 100.4 (2000) (defining Game Management Units).

[9] Temporary Subsistence Management Regulations for Public Lands in Alaska, 55 Fed. Reg. 27,114, 27,115 (June 29, 1990).

[10] 50 C.F.R. § 100.23(a) (1999) (listing exclusions from the Board’s rural determinations).

[11] Subsistence Taking of Fish and Wildlife Regulations for the Kenai Peninsula, 60 Fed. Reg. 40,461, 40,462 (Aug. 9, 1995).

[12] Id. at 40,463.

[13] Ninilchik Traditional Council v. United States (Ninilchik II), 227 F.3d 1186, 1190 (9th Cir. 2000).

[14] 16 U.S.C. § 3117 (1994 & Supp. V 1999).

[15] 227 F.3d at 1190.

[16] Id.

[17] Id.

[18] Ninilchik I, 153 F.3d 928 (9th Cir. 1998).

[19] Ninilchik II, 227 F.3d at 1190.

[20] 16 U.S.C. § 3114 (1994 & Supp. V 1994).

[21] 227 F.3d at 1191 (citing 16 U.S.C. § 3124 (1994)).

[22] 16 U.S.C. § 3101(b) (1994 Supp. V 1999).

[23] 227 F.3d at 1192.

[24] Id. at 1193.

[25] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).

[26] Id. § 706.

[27] 227 F.3d at 1194 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

[28] 16 U.S.C. § 3114 (1994).

[29] 227 F.3d at 1195.

[30] Id.

[31] Id.

[32] Id. at 1195-96.

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