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Alaska v. Federal Subsistence Board



The State of Alaska challenged a Federal Subsistence Board (FSB) decision that granted residents of Chistochina, a rural community in Alaska, a customary and traditional use determination (C&T determination) for moose throughout a particular game management unit (GMU). The United States District Court for the District of Alaska granted summary judgment in favor of the federal defendants and defendant-intervenors.[1] On review, the Ninth Circuit affirmed the decision of the district court, holding that substantial evidence supported FSB’s finding, FSB properly considered specific moose populations in granting the C&T determination, and FSB’s decision was not arbitrary and capricious.

Congress enacted the Alaska National Interest Lands Conservation Act (ANILCA)[2] to preserve Alaska’s ecosystems and to provide for the opportunity for rural residents to continue to engage in a subsistence way of life.[3] Through Title VIII of ANILCA, Congress established a subsistence management program that gives priority to subsistence use[4] of fish and wildlife resources on federal public lands.[5] Pursuant to ANILCA, the Secretary of the Interior and the Secretary of Agriculture (collectively Secretaries) promulgated regulations that established a Federal Subsistence Management Program for all federal lands in Alaska.[6] Under the regulations, FSB is responsible for “administering the subsistence taking and uses of fish and wildlife on public lands.”[7] Additionally, FSB “[d]etermine[s] which rural Alaska areas or communities have customary and traditional uses of specific fish and wildlife populations.”[8] In making C&T determinations, regional advisory councils (RACs) assist FSB by gathering and evaluating information from rural communities on regional subsistence uses, and making recommendations to FSB on whether to grant or deny C&T determination proposals.[9] Once a C&T determination is granted, the community may take[10] species from specified fish or wildlife populations using designated methods within the authorized GMU areas in compliance with federal subsistence hunting regulations.[11]

As part of the Federal Subsistence Management Program, the regulations promulgated by the Secretaries divided Alaska into twenty-six GMUs. Chistochina, a community of less than 100 residents, is located in GMU thirteen, between GMUs eleven and twelve. In 2004, Cheesh-na Tribal Council, Chistochina’s governing body, submitted a C&T determination request to FSB for an area in GMU twelve. GMU twelve comprises 10,000 square miles, 59% of which are federal public lands and 40% of which are state lands.[12] Although Chistochina was already included in a C&T determination for moose within one of three areas in GMU twelve, Chistochina requested a C&T determination for moose in the remaining two areas. After receiving recommendations from two RACs and conducting a public hearing, FSB approved the proposal as submitted, thereby granting Chistochina residents a C&T determination in the remaining two areas of GMU twelve. The Alaska Department of Fish and Game expressed concerns with the proposal and asked FSB to limit the C&T determination to only certain portions of GMU twelve, instead of granting the determination for all the federal lands in the GMU.

Alaska subsequently asked FSB for reconsideration of the determination, but FSB denied Alaska’s request. In response, Alaska filed suit in federal district court, alleging violations of the Administrative Procedure Act.[13] Cheesh-na Tribal Council and Sinyon intervened. Following cross motions for summary judgment, the district court granted summary judgment in favor of federal defendants and the intervenors. Alaska appealed the decision of the district court to the Ninth Circuit.

The Ninth Circuit reviews de novo a district court’s grant of summary judgment.[14] The court must “hold unlawful and set aside” agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[15] Additionally, the court is deferential to agency decisions when the agency “articulate[s] a rational connection between the facts found and the choice made.”[16] Finally, although the court “may not fabricate a rational basis for an agency’s action,”[17] the court will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”[18]

The Ninth Circuit first examined whether FSB had substantial evidence to support the fact-finding on Chistochina’s subsistence use of moose in GMU twelve. Although Alaska argued that FSB’s fact-finding was not supported by sufficient evidence, Alaska also conceded that the record supported the finding that Chistochina residents took moose in portions of all three sections of GMU twelve. Because FSB found that Chistochina residents took moose from all three areas within GMU twelve, the Ninth Circuit found there was no factual dispute and that consequently, FSB’s findings were supported by substantial evidence.

To consider whether FSB properly examined specific moose populations, the Ninth Circuit compared the litigation positions of Alaska and the federal defendants. Alaska claimed that FSB’s C&T determination was arbitrary and capricious because FSB failed to examine “specific moose populations.”[19] Conversely, the federal defendants asserted that the terms “population” and “species” were synonymous. Responding to FSB’s position, the Ninth Circuit characterized FSB’s interpretation as “purely a litigation position, developed during the course of the present case,” to which the court owed no deference.[20] The court concluded that the terms “population” and “species,” as used in the regulations, were not synonymous, and thus, FSB needed to identify the community’s use of specific fish stocks and wildlife populations when granting a C&T determination. Despite disagreeing with the federal defendants’ regulatory interpretation, the Ninth Circuit concluded that FSB properly considered the individual moose populations because the FSB “identified three specific moose populations” within the three areas of GMU twelve, and “considered whether Chistochina took moose for subsistence use in each of these three areas when making the instant C&T determination.”[21]

Next, the Ninth Circuit considered whether FSB acted arbitrarily and capriciously by adding Chistochina to the already-delineated areas within GMU twelve, instead of creating a new C&T determination area. Federal defendants initially argued that FSB properly extended Chistochina’s C&T determination to the entire GMU unit because the agency was not required by ANILCA or the regulations “to limit C&T determinations to the area in which a community has demonstrated subsistence use.”[22] In rejecting federal defendants’ argument, the court determined that the “regulations clearly tie C&T determinations to the specific locations in which wildlife populations have been taken.”[23] The court reasoned that although the definitions for “subsistence uses” and “customary and traditional use” do not “directly tie subsistence or C&T use to a particular location, each C&T determination must be tied to a particular community or area and a specific wildlife population.”[24] Additionally, looking to an eight-factor analysis utilized by FSB to determine a community’s use of a wildlife population,[25] the court discerned that the factors in the regulations require FSB to consider the geographic extent of the community’s subsistence activities. Further bolstered by ANILCA’s dual purposes of protecting and preserving both wildlife and subsistence lifestyle, the court concluded that the FSB’s decision to grant Chistochina a C&T determination for moose throughout the remaining two areas of GMU twelve could not “be supported simply by a finding that Chistochina residents used moose for subsistence purposes.”[26]

Federal defendants also asserted that FSB rationally based the C&T determination on administrative convenience, and therefore did not act in an arbitrary and capricious manner. Although FSB did not expressly indicate the need for administrative convenience, the court discerned the benefits of consolidated management of the GMU from the record. In examining the purpose behind FSB’s decision to provide a broad C&T determination for Chistochina in GMU twelve, the court noted that if “the FSB had to restrict every C&T determination to the precise area in which a rural community had demonstrated C&T use of a wildlife population, the C&T determinations would quickly become unmanageable.”[27] Accordingly, the court concluded that FSB’s decision to limit the number of C&T determination areas within the GMU provided a rational basis for the agency’s action.

Finally, the court considered ANILCA’s limitations and savings clause. ANILCA’s limitations and savings clause indicates that nothing in the subchapter should be construed to “authoriz[e] a restriction on the taking of fish and wildlife for nonsubsistence uses on the public lands . . . unless necessary for the conservation of healthy populations of fish and wildlife . . . to continue subsistence uses of such populations, or pursuant to other applicable law.”[28] Alaska asserted that Chistochina’s C&T determination violated ANILCA by restricting non-subsistence takings. In response, the court held that ANILCA’s limitation and savings clause only prohibits FSB from directly limiting nonsubsistence uses, and does not prevent the FSB from regulating the subsistence use of fish and wildlife resources or the collateral effects such a regulation might have on a a separate regulatory body.

In sum, the Ninth Circuit concluded that FSB’s decision to grant a C&T determination to Chistochina residents was not arbitrary and capricious. Accordingly, the court deferred to the agency’s decision and affirmed the decision of the district court to grant summary judgment to federal defendants and defendant-intervenors.

[1] The federal defendants included FSB, the Chairman of the FSB, the Secretary of the Interior, and the Secretary of the Department of Agriculture. The defendant-intervenors included Cheesh-na Tribal Council (Chistochina’s governing body) and Larry Sinyon, a subsistence hunter from Chistochina.

[2] 16 U.S.C. §§ 3101-3233 (2006).

[3]Id. § 3101(b)-(c).

[4] Subsistence use refers to

the customary and traditional uses by rural Alaska residents of wild, renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade.

50 C.F.R. § 100.4 (2008).

[5]See 16 U.S.C. § 3113(3) (2006).

[6]See 50 C.F.R. § 100.1 (2008); 36 C.F.R. § 242.1 (2008). The Secretaries promulgated identical regulations, which are codified at 50 C.F.R. pt. 100and 36 C.F.R. pt. 242.

[7] 50 C.F.R. § 100.10(a) (2008); 36 C.F.R. § 242.10(a) (2008).

[8] 50 C.F.R. § 100.10(d)(4)(iii) (2008); 36 C.F.R. § 242.10(d)(4)(iii) (2008).

[9]See 50 C.F.R. § 100.11(a) (2008); 36 C.F.R. § 242.11(a) (2008).

[10] According to the regulations, “[t]ake or taking as used with respect to fish or wildlife, means to pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage in any such conduct.” 50 C.F.R. § 100.4 (2008).

[11]See id. §§ 100.25-.28

[12] The federal public lands within GMU twelve include the Tetlin National Wildlife Refuge and the Wrangell-St. Elias National Park and Preserve.

[13] See 5 U.S.C. § 706(2) (2006).Alaska also initially argued that the C & T determination violated ANILCA, but the district court held that Alaska lacked prudential standing, because ANILCA allows only parties “aggrieved by a failure . . . to provide for the priority for subsistence uses” to bring suit. Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3117(a) (2006).Alaska did not appeal the district court’s decision.

[14]See Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1130 (9th Cir. 2008).

[15] 5 U.S.C. § 706(2) (2006).

[16] Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001).

[17] Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1094 (9th Cir. 2008).

[18] Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).

[19]Fed. Subsistence Bd., 544 F.3d at 1095.


[21]Id. at 1096.

[22]Id. at 1097.

[23]Id. at 1098.

[24]Id. at 1097.

[25]See 50 C.F.R. § 100.16(b) (2008).

[26]Fed. Subsistence Bd., 544 F.3d at 1098-99.

[27]Id. at 1100.

[28] 16 U.S.C. § 3125 (2006).

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