FW. Ninth Circuit Chistochina decision - CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED
4:25 PM 23 Sep 2008 [ View original ]
MUNICATION
Attachments : FSB.pdf
From: Colberg, Talls J (LAW)
Sent: Tuesday, September 23, 2008 3:20 PM
To:
Cc: Nizich, Michael A)
Subject: FW: Ninth Circuit Chistochina decision -- CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED
MUNICATION
Dear Governor Palin,
I know you are busy. Attached is a summary and copy of a major 9th Circuit Court subsistence decision,
which we lost I will keep Mr. Nizich apprised of any recommendations for appeal. Talis
From: Barry, Elizabeth J (LAW)
Sent: Tuesday, September 23, 2008 3:10 PM
To: Colberg, Talis J (LAW); Tillery, Craig J (LAW); Gordon, Nancy R (LAW)
Cc: Sewright, Michael W (LAW)
Subject: FW: Ninth Circuit Chistochina decision -- CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED
MUNICATION
FYI. Privileged or Personal Material Redacted
Elizabeth J. Barry
Chief Assistant Attorney General
Natural Resources Section
From: Sewright, Michael W (LAW)
Sent: Tuesday, September 23, 2008 1:44 PM
To: Lloyd, Denby S (DFG); Cunning, Tina (DFG)
Cc: Barry, Elizabeth J (LAW); Daugherty, Steven A (LAW); Grace, Joanne M (LAW)
Subject: FW: Ninth Circuit Chistochina decision -- CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED
MUNICATION
I attach the Ninth Circuit Courts Opinion issued this mornin g in State of Alaska v. Federal Subsistence Board (the
"Chistochina case"), Ninth Circuit Case No. 07-35723. Privileged or Personal Material Redacted
8/26/2009
Page 2 of 2
Privileged or Personal Material Redacted
Michael W. Sewright
.Assistant Attorney General
Natural Resources Section
1031 W. 4th Ave., Ste. 200
Anchorage, AK 99501
From: Grace, Joanne M (LAW)
Sent: Tuesday, September 23, 2008 10:16 AM
To: Sewright, Michael W (LAW)
Subject: decision
Joanne
8/26/2009
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ALASKA,
Plaintiff-Appellant,
V.
FEDERAL Suss1s cE BOARD;
MICHAEL FLEAGLE, Chairman, No. 07-35723
Federal Subsistence Board; Dnuc D.C..No.
KEMPTHORNE, Secretary of the CV 06-0107 HRH
Interior; ED ScHAFER, Secretary of
the Department of Agriculture, OPINION
Defendants Appellees,
CHEESH-NA TRIBAL Couwcu,; LARRY
SINYON,
Defendant-Intervenors-Appellees.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Argued and Submitted
August 5, 2008-Anchorage, Alaska
Filed September 23, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Tashima
13431
STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARA 13435
COUNSEL
Michael W. Seawright, Assistant Attorney General, Anchor-
age, Alaska, for the plaintiff-appellant.
Ellen J. Durkee, U.S. Department of Justice, Environment &
Natural Resources Division, Washington, D.C., for the
defendants-appellees.
13436 STATE of ALASKA v. FEDERAL SUBSISTENCE BOARD
Heather Kendall, Native American Rights Fund, Anchorage,
Alaska, for the defendants-intervenors-appellees.
Douglas S. Burdin, Washington, D.C., for amici curiae Safari
Club International, and Safari Club International Foundation.
James H. Lister, Birch, Horton, Bittner & Cherot, Washing-
ton, D.C., for amicus curiae Kenai Sportfish Association.
OPINION
TASHIMA, Circuit Judge:
Defendant-Appellee Federal Subsistence Board ("FSB" or
"Board") administers the federal subsistence program at the
heart of Title VIII of the Alaska National Interest Lands Con-
servation Act ("ANILCA"), 16 U.S.C. 3111-26. In 2005,
the FSB granted residents of Chistochina , a rural community
in Southeast Alaska, a Customary and Traditional use deter-
mination ("C & T determination") for moose throughout
Game Management Unit ("GMU") 12. The C & T determina-
tion permits Chistochina residents to harvest moose in GMU
12 under federal subsistence hunting regulations, which are
more permissive than state hunting regulations.
Plaintiff-Appellant the State of Alaska ("Alaska") chal-
lenged the C & T determination in district court, contending
that the FSB granted the determination in violation of the
Administrative Procedure Act ("APA"), 5 U.S.C.
706(2)(A). The district court granted summary judgment in
favor of Defendants -Appellees FSB, the Chairman of the
FSB, the Secretary of the Interior, the Secretary of the Depart-
ment of Agriculture (together, "Federal Defendants"), and
Defendant-Intervenors Cheesh-na Tribal Council, Chis-
tochina 's governing body, and Larry Sinyon, a Chistochina
subsistence hunter ("Intervenors"). After a careful review of
i
STATE of ALASKA v. FaDEwv. Sums mcE Boaxn 13437
the record, we find no reason to set aside the FSB's C & T
determination. Because we may not substitute .our own judg-
ment for that of the FSB, see Arrington v. Daniels, 516 Fad
1106, 1112 (9th Cir. 2008) (citing Citizens to Preserve Over-
ton Parr Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled
on other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977)), we affirm.
1. ANILCA
Congress enacted ANILCA to further two ends. The first is:
to preserve unrivaled scenic and geological values
associated with natural landscapes; to provide for the
maintenance of sound populations of, and habitat
for, wildlife species of inestimable value to the citi-
zens of Alaska and the Nation ... ; to preserve in
their natural state extensive unaltered arctic tundra,
boreal forest, and coastal rainforest ecosystems; to
protect the resources related to subsistence needs; to
protect and preserve historic and archeological sites,
rivers, and lands, and to preserve wilderness
resource values and related recreational opportuni-
ties ... ; and to maintain opportunities for scientific
research and undisturbed ecosystems.
16 U.S.C. 3101(b). The second, in order though not in prior-
ity, is "to provide the opportunity for rural residents engaged
in a subsistence way of life to continue to do so." Id.
3101(c).
In Title VIII of ANILCA, Congress sought to protect the
subsistence way of life in the face of Alaska 's growing popu-
lation and the resultant pressure on fish and wildlife popula-
tions, and created a subsistence management and use
program. Id. 3111(3). The program grants a priority to sub-
sistence use of resources , providing: "the taking on public
lands of fish and wildlife for nonwasteful subsistence uses
13438 STATE OF ALAst v. FEDERAL SunsisT cE BOARD
.A
shall be accorded priority over the taking on such lands of fish
and wildlife for other purposes." Id. 3114. Congress autho-
rized the Secretary of the Interior and the Secretary of Agri-
culture (together, the "Secretaries ") to promulgate regulations
in fu therance of ANILCA's directives.' Id. 3124.
The regulations establish a Federal Subsistence Manage-
ment Program for all federal lands in Alaska. 50 C.F.R.
100:1. The Secretaries created and charged the FSB with the
"responsibility for administering the subsistence taking and
uses of fish and wildlife on public lands ." Id. 100. 10(a). In
the course of its administration , the FSB . "[d]eteimine[s]
which rural Alaska areas or communities have customary and
traditional subsistence uses of specific fish and wildlife popu-
lations." Id. 100.10(d)(4)(iii). To assist in these C & T
determinations, the FSB establishes Regional Advisory Coun-
cils ("RACs"), which oversee subsistence resource regions
and receive input from rural communities regarding subsis-
tence uses in their regions . Id.. 100.11(a). The RACs may
evaluate C & T determination proposals, Id. 100.11(c)(xi),
and recommend to the FSB that it grant or deny a particular
C & T determination, Id. 100.11(cxviii). See also 16 U.S.C.
.3115(x).
The FSB codifies C & T determinations at 50 C.F.R.
100.24. Those communities with C & T determinations for
particular fish stock or wildlife populations may take2 them
within the GMU,' or portion of a GMU, for which they have
'The Secretaries promulgated identical regulations, codified at 50
C.F.R., pt. 100, and 36 CF.R, pt. 242. For the sake of simplicity, we cite
to the regulations promulgated by the Secretary of the Interior at 50
C.F.R., pt. 100 throughout.
"Take or taking as used with respect to fish or wildlife, means to pur-
sue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage
in any such conduct." 50 C.F.R. 100.4.
3The regulations divide Alaska into twenty -six GMUs. 50 C.F.R.
100.4. The GMUs are codified in the State of Alaska hunting and trap-
STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13439
a C & T determination pursuant to the federal subsistence
hunting regulations found at 50 C.F.R. 100.25-28.
II. Facts and Procedural History
Chistochina is a rural community located in GMU 13C, a
subunit of GMU 13, that borders GMUs 11 and 12. According
to the 2000 Census, the community boasts ninety-three resi-
dents in thirty-seven households. GMU 12, the primary GMU
at issue in this case, covers approximately 10,000 square miles `
Federal public lands, including the Tetlin National Wildlife
Refuge and the Wrangell - St. Elias National Park and Pre-
serve, comprise fifty-nine percent of GMU 12. State lands
occupy approximately forty percent of the land. Less than one
percent of the land is privately owned.
In 2004, the Cheesh-na Tribal Council, Chistochina's gov-
erning body, submitted a C & T determination proposal to the
FSB. At the time of the proposal, there existed C & T deter-
minations for moose within three areas of GMU 12:
(A) south of a line from Noyes Mountain, southeast
of the confluence of Tatschunda Creek to Nabesna
River.
ping regulations. Id.; Alaska Admin. Code tit. 5, 92.450. Alaska imple-
mented ANILCA through state law until the Supreme Court of Alaska
held that providing a subsistence priority for rural Alaskans, to the exclu-
sion of other Alaskans, violated the Alaska Constitution. See McDowell V.
State, 785 P.2d 1, 9 (Alaska 1989). The Secretaries then assumed respon-
sibility for the implementation and administration of ANILCA, and incor-
porated the GMU scheme into the federal regulations. See 50 C.F.R.
100.4.
4"Game Management Unit 12 consists of the Tanana River drainage
upstream from the Robertson River, including all drainages into the east
bank of the Robertson River, and the White River drainage in Alaska, but
excluding the Ladue River drainage(.J" Alaska Admin. Code tit. 5,
92.450(12).
13440 STATE OF ALASKA V. FEDERAL SUBSISTENCE BOARD
(B) east of the Nabesna River and Nabesna Glacier,
south of the Winter Trail from Pickerel Lake to the
Canadian Border.
(C) remainder.-'
50 C.F.R. 100.24(a)(1) (2004). Chistochina was included in
the C & T determination for moose within area A but not
areas B and C. Id. In the 2004 proposal, the Cheesh-na Tribal
Council asked the FSB to grant Chistochina a C & T determi-
nation for moose within areas B and C on the ground that
Chistochina residents "customarily and traditionally hunted
moose throughout Unit 12." In support of this claim, the
Council represented that Chistochina residents had taken
moose in "[a]ll areas east of the Nabesna river and south of
the River Trail. This includes, but is not limited to rivers,
lakes, and creeks in the Chisana area ... and in the White
River area.,,
The Office of Subsistence Management ("OSM") prepared
an analysis of the proposal, which it forwarded to the South-
central RAC and the Eastern Interior RAC. After reviewing
the proposal and hearing testimony, both RACs recommended
granting a C & T determination for moose to Chistochina
members throughout GMU 12. The FSB, during a public
hearing, considered the proposal along with the OSM analy-
sis, the recommendations of the RACs, and a positive recom-
mendation from the Interagency Staff Committee of the OSM
("Staff Committee,,). A representative from the Alaska
Department of Fish and Game was the only party to express
5mese three sections of GMU 12 are not formal subunits as are, for
example, GMU 13 A-D. During the C & T determination process the FSB
referred to the three areas as areas A-C. For the sake of simplicity, we fol-
low suit.
Both RACs reviewed the proposal because Chistochina is within the
purview of the Southcentral RAC, but GMU 12 is within the purview of
the Eastern Interior RAC.
STATE of ALASKA v. FEnaaAL SuBsIsmicE Bon 13441
any reservations. He asked the FSB to limit the C & T deter-
mination, averring that the Chistochina residents had only
shown use of moose in portions of areas B and C and not
throughout areas B and C. The FSB approved the proposal as
submitted, granting Chistochina residents a C & T determina-
tion for moose in areas B and C of GMU 12.
Alaska requested reconsideration pursuant to 50 C.F.R.
100.20(b), contending that historical and cultural data
showed that Chistochina members harvested moose only in
2,500 square miles of GMU 12. Alaska proposed granting
Chistochina a C & T determination for moose in the following
area: "that portion [of GMU 121 that includes the drainage of
the Nabesna River upstream from the mouth of Lick Creek,
and the area south of and including the Pickerel Lake Winter
Trail from Lick Creek to the Chisana River." The proposed
area occupies area A, the eastern third of area B , and a small
portion of area C bordering the Nabesna Road, Nabesna
River, and Pickerel Lake.
The FSB denied the request for reconsideration , and Alaska
filed the instant action, contending that in granting the C & T
determination, the FSB violated the APA! The Cheesh-na
Tribal Council and Sinyon intervened shortly thereafter. On
cross-motions for summary judgment , the district court
granted summary judgment in favor of all Defendants . Alaska
timely appeals.
III. Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. 1291. We
TAlaska initially contended that the C & T determination violated
ANILCA as well. The district court, however, held that Alaska lacked pru-
dential standing to bring the claim because ANILCA only permits parties
"aggrieved by a failure ... to provide for the priority for subsistence uses"
to bring suit. 16 U.S.C. 3117(a). Alaska does not pursue its ANILCA
claim on appeal.
13442 STATE of ALASKA v. FEDERAL SUBSISTENCE BOARD
review de novo the district court 's determination on summary
judgment that the FSB complied with ANILCA and its imple-
menting regulations. See Or. Natural Desert Assn v. Bureau
of Land Mgmt., 531 F.3d 1114, 1130 (9th Cir. 2008). We
must "hold unlawful and set aside " any agency action that is
"arbitrary, capricious, an abuse of discretion , or otherwise not
in accordance with law." 5 U.S.C. 706(2).
"[W]e may not defer to an agency decision that `is without
substantial basis in fact.' " Sierra Club v. EPA, 346 F. 3d 955,
961 (9th Cir.), amended by 352 F.3d 1186 (9th Cir. 2003)
(quoting Fed. Power Comm 'n v. Fla. Power & Light Co., 404
U.S. 453, 463 (1972)). Thus, our "inquiry into the facts is to
be searching and careful" Citizens to Preserve Overton Park,
401 U.S. at 416 . Our ultimate posture, however, is deferential;
we will uphold an agency's action if the agency "'articu-
late[d] a rational connection between the facts found and the
choice made .' " Sierra Club, 346 F.3d at 961 (quoting Ariz.
Cattle Growers'Ass'n v. U.S Fish & Wildlife, 273 F.3d 1229,
1236 (9th Cir. 2001)).
We will find an agency action 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 expla-
nation for its decision that runs counter to the evi-
dence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise."
Cir. for Biological Diversity v. Nat '! Highway Traffic Safety
Admin., 2008 WL 3822966, at *14 (9th Cir. Aug. 18, 2008)
(quoting Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto.
Ins. Co., 463 U. S. 29,43 (1983)). While we may not fabricate
a rational basis for an agency ' s action, we will "'uphold a
decision of less than ideal clarity if the agency 's path may
reasonably be discerned.' " Motor Vehicle Mfrs. Assn, 463
STATE OF ALASKA v. FEDERAL SuasI srsnca BOARD 13443
U.S. at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
N. Discussion
A. The FSB' s fact-finding with respect to Chistochina's
subsistence use of moose in GMU 12 was supported
by substantial evidence.
[1] While Alaska argues vociferously that the FSB's fact
finding was not supported by substantial evidence, the dis-
agreements between the parties are ultimately legal, and not
factual, in nature. Alaska concedes that the record supports a
finding that Chistochina residents took moose for subsistence
use in "that portion of [GMU 12] that includes the drainage
of the Nabesna River upstream from the mouth of Lick Creek,
and the area south of and including the Pickerel Lake Winter
Trail from Lick Creek to the Chisana River." This area
includes all of area A, more than a third of area B, and a small
portion of area C and covers approximately 2,500 square
miles of GMU 12.
121 When making the relevant C & T determination, the
FSB did not find that Chistochina residents took moose
throughout all 10,000 square miles of GMU 12. Rather, it
found that Chistochina residents took moose in each of the
three areas within GMU 12.' Finding no factual dispute
81ndeed, the record contains sufficient evidence that Chistochina resi-
dents have historically , and traditionally taken moose in this area. Chis-
tochina residents descended from members of a native Alaskan group that
hunted near Chisana in area B and Nabesna in area C. Moose harvest data
support moose taking by Chistochina residents near Pickerel Lake and east
of the Nabesna River in area C between 1964 and 1984.
'The Cheesh-na Tribal Council and Sinyon contend that there is sub-
stantial evidence to support a finding that Chistochina residents took
moose throughout all 10,000 square miles of GMU 12. The record does
not support such a finding, but, more importantly, the FSB did not so find.
We may not uphold an agency decision based on facts on which the
13444 STATE OF ALASKA v. FEDERAL SuBSIsTENcE BOARD
between the parties, we hold that the FSB 's fact finding was
supported by substantial evidence.
B. The FSB properly considered specific moose,
populations.
Alaska further contends that the FSB's C & T determina-
tion was arbitrary and capricious because the FSB failed to
consider a relevant factor, namely specific moose populations
within GMU 12. The Federal Defendants contend that the
FSB needed only to consider Chistochina residents' subsis-
tence use of the moose species because "population" is synon-
ymous with "species."
[3) Federal Defendants contend that their interpretation of
"population" is due deference under Chevron USA. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).10
An official, legally binding interpretation is entitled to Chev-
ron deference. Miranda Alvarado v. Gonzales, 449 F.3d 915,
922 (9th Cir. 2006) ("[T]he precedential value of an agency
action [is] the essential factor in determining whether Chev-
ron deference is appropriate."). We afford Skidmore" defer-
ence to official agency interpretations without the force of
law. Tablada v. Thomas, 533 Fad 800, 806 (9th Cir. 2008)
(citing United States v. Mead Corp., 533 U.S. 218, 228, 234
(2001)) (affording Skidmore deference to a Bureau of Prisons
Program Statement, which formalized the agency's official
interpretation of a statute).
[4) Federal Defendants have not interpreted "population" as
agency did not rely. Arrington, 516 F.3d at 1113 ("Post hoc explanations
of agency action by appellate counsel cannot substitute for the agency's
own articulation of the basis for its decision.") (citing Fed Power
m 'n v. Texaco, Inc., 417 U.S. 380, 397 (1974)).
70lntervenors agree.
'Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13445
synonymous with "species" in any legally -binding regulation
or in any official agency interpretation of the regulation.
Rather, this interpretation appears to be purely a litigation
position, developed during the course of the present case. As
such, we owe the interpretation no deference. United States v.
Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995)
("No deference is owed when an agency has not formulated
an official interpretation of its regulation, but is merely
advancing a litigation position ."). We do not afford Chevron
or Skidmore deference to litigation positions unmoored from
any official agency interpretation because "` Congress has
delegated to the administrative official and not to appellate
counsel the responsibility for elaborating and enforcing statu-
tory commands.' Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 212 (1988) (quoting Inv. Co. Inst. v. Camp, 401
U.S. 617, 628 (1971)).
[5] When making a C & T determination, the FSB must
"determine which fish stocks and wildlife populations have
been customarily and traditionally used for subsistence." 50
C.F.R. 100.16(a). Additionally, the regulations provide that
the C & T determination "shall identify the specific communi-
ty's or area's use of specific fish stocks and wildlife popula-
tions." Id.
[6] "Population" and "species," as used in 50 C.F.R.
100.16(a), are not synonymous. The regulations define "fish
and wildlife," as opposed to "fish stocks and wildlife popula-
tions," broadly as "any member of the animal kingdom." Id.
100.4. The regulations also frequently refer to fish and wild-
life without the limiting nouns "stock" and "population." See,
e.g., Id. 100.7(a) ("You may not use fish or wildlife or their
parts, taken pursuant to the regulations in this part , unless pro-
vided for in this part."). In one definition, the regulations even
use the two terms in conjunction : "Conservation of healthy
populations offish and wildlife means the maintenance of fish
and wildlife resources ... in a condition that ... minimizes
13446 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD
the likelihood of irreversible or long-term adverse effects
upon such populations and species." Id. 100.4.
[7J The addition of the terms "stock" and "population" in
50 C.F.R. 100 . 16(a) denotes a group smaller than a species.
Specifically, the regulation directs the FSB to identify a com-
munity's use of "specific fish stocks and wildlife popula-
tions." Id. (emphasis added). In order for the FSB to have
considered the relevant factors when making the C & T deter-
mination, the FSB must have considered Chistochina's subsis-
tence use of specific moose populations, and not
Chistochina's use of moose in general.
181 Although we disagree with Federal Defendants' inter-
pretation of "population," we conclude that, in this case, the
FSB properly considered specific moose populations by con-
sidering Chistochina's historical and traditional taking of
moose for subsistence use within GMU 12, areas B and C.
Under 50 C.F.R 100.16(a), C & T determinations should
"identify the specific community's or area's use of specific
fish stocks and wildlife populations." The C & T determina-
tions for moose in GMU 12 identified three specific moose
populations, those in the three areas within GMU 12:
(A) south of a line from Noyes Mountain, southeast
of the confluence of Tatschunda Creek to Nabesna
River.
(B) east of the Nabesna River and Nabesna Glacier,
south of the Winter Trail from Pickerel Lake to the
Canadian Border.
(C) remainder.
Id. 100.24(a)(1) (2004). Thus, for all C. & T determinations
for moose within GMU 12 prior to 2004, the FSB considered
the moose populations within these three specific areas.'
'2The boundaries for the C & T determinations for moose within GMU
12 were revised in 2007. 50 C.F.R. 100.24(aXI) (2007). We express no
opinion on the reason for or effect of the revision.
STATE OF AI.As1A v. FEDERAL SUBSISTENCE BOAan 13447
Because the FSB considered whether Chistochina took moose
for subsistence use in each of these three areas when making
the instant C & T determination, the FSB properly considered
specific moose populations as directed by Id.. 100.16(a).
C. The FSB's decision to add Chistochina to the already-
delineated C & T determination areas for moose
within GMU 12 was not arbitrary and capricious.
Alaska further contends that the FSB' s decision to grant
Chistochina residents a C & T determination for moose
throughout GMU 12 was arbitrary and capricious because the
facts only support historical moose harvesting in 2,500 square
miles of GMU 12 73 Rather than simply adding Chistochina
residents to areas B and C in the already-existing C & T deter-
minations for moose in GMU 12, Alaska argues that the FSB
should have delineated a new area, one that corresponds more
closely to the approximately 2,500 square miles in which
Chistochina residents have traditionally taken moose.
Federal Defendants first contend that the FSB properly
extended Chistochina ' s C & T determination for moose to the
whole of GMU 12 because the Board , in its discretion, may
grant a C & T determination for a species in any area as long
as the community requesting the determination can demon-
strate subsistence use of that species anywhere. In other
words, Federal Defendants contend that neither ANILCA nor
its implementing regulations require the FSB to limit C & T
"'Alaska mischaracterizes the C & T determination as covering the
entire 10,000 square miles of GMU 12. The regulations provide that the
C & T determinations only apply to federal lands. 50 C.F.R. 100.24(a)
("[R]ural Alaska residents of the listed communities, areas, and individu-
als have customary and traditional use of the specified species on Federal
public land in the specified areas ."). Thus, the relevant C & T determina-
tion includes only the approximately 5,900 square miles of federal lands
within GMU 12.
13448 STATE OF ALASKA V. FEDERAL SUBSISTENCE BOARD
determinations to the area in which a community has demon-
strated subsistence use."
[9] We find no merit to this argument . The regulations
clearly tie C & T determinations to the specific locations in
which wildlife populations have been taken . Federal Defen-
dants contend that the definitions of "subsistence use" in
ANILCA and "customary and traditional use" in the regula-
tions do not tie such uses to geography . ANILCA provides:
[T]he term "subsistence uses" means the customary
and traditional uses by rural Alaska residents of
wild, renewable resources for direct personal or fam-
ily consumption as food, shelter, fuel, clothing, tools,
or transportation; for the making and selling of hand-
icraft articles out of nonedible byproducts of fish and
wildlife resources taken for personal or family con-
sumption; for barter, or sharing for personal or fam-
ily consumption; and for customary trade.
16 U.S.C. 3113. The regulations further define "customary
and traditional use" as "a long-established , consistent pattern
of use, incorporating beliefs and customs which have been
transmitted from generation to generation. This use plays an
important role in the economy of the community." 50 C.F.R.
100.4.
[10] While these definitions do not directly tie subsistence
or C & T use to a particular location, each C & T determina-
tion must be tied to a specific community or area and a spe-
cific wildlife population. The regulations provide : "[C & T]
determinations shall identify the specific community's or
area's use of specific fish stocks and wildlife populations." Id.
'*Federal Defendants first adopted this argument in the course of the
instant action; it is not supported by any official agency interpretation.
Accordingly, we decline to defer to this interpretation of ANILCA and its
implementing regulations. See Part IV.B, supra.
STATE of Ai.nsxn v. FEOERni, SuBsimENcE Bonin 13449
100.16(a). Specific communities and areas and specific fish
stocks and wildlife populations are, by definition, limited to
specific geographic areas. The regulation that lists the C & T
determinations further provides : "The [FSB} has determined
that rural Alaska residents of the listed communities, areas,
and individuals have customary and traditional use of the
specified species on Federal public land in the specified
areas." Id. 10024(a) (emphasis added). A C & T determina-
tion is not a determination that a community or area has used
a species for subsistence purposes. Rather, a C & T determi-
nation is a determination that a community or area has taken
a species for subsistence use within a specfc area.
[11] Additionally, the eight-factor analysis that the FSB is
directed to apply when considering a community 's use of a
specific wildlife population requires the FSB to consider the
geographic reach of the community and the community's use
activities. The eight factors are:
(1) A long-term consistent pattern of use , excluding
interruptions. beyond the control of the community or
area;
(2) A pattern of use recurring in specific seasons for
many years;
.(3) A pattern of use consisting of methods and
means of harvest which are characterized by effi-
ciency and economy of effort and cost, conditioned
by local characteristics;
(4) The consistent harvest and use of fish or wildlife
as related to past methods and means of taking; near,
or reasonably accessible from, the community or
area;
(5) A means of handling, preparing, preserving, and
storing fish or wildlife which has been traditionally
13450 STATE OF ALASKA v. FED ItAL Sussism cE BOARD
used by past generations, including consideration of
alteration of past practices due to recent technologi-
cal advances, where appropriate;
(6) A pattern of use which includes the handing
down of knowledge of fishing and hunting skills,
values, and lore from generation to generation;
(7) A pattern of use in which the harvest is shared or
distributed within a definable community of persons;
and
(8) A pattern of use which relates to reliance upon a
wide diversity of fish and wildlife resources of the
area and which provides substantial cultural, eco-
nomic, social, and nutritional elements to the com-
munity or area.
Id. 100.16(b). Factors (1)-(3) and (6)-(8) refer to a "pattern
of use." This use is not the use of a species in general . Rather,
the "use" is themunity's or area' s use of specific fish
stocks and wildlife populations," as specified in subsection
(a). Id. 100.16(a)." Thus, six of the eight factors direct the
FSB to consider use relative to a specific wildlife population
or fish stock, and, by extension, relative to the geographic
reach of that population or stock . Geographic limitations to
the C & T determination are also explicit in factor (4), which
directs the FSB to consider "[t]he consistent harvest and use
of fish or wildlife . . . near, or reasonably accessible from, the
munity or area. " Id. 100.16(b)(4).
1121 Federal Defendants further contend that requiring a
geographic basis for a C & T determination works at cross
purposes with ANILCA because ANILCA was enacted to
"We note also, however, that a community' s or area's use of a species
in general may be relevant to that community's or area's use of a specific
population of that species.
STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13451
protect the subsistence lifestyle enjoyed by rural Alaskans,
not to limit subsistence use to the traditional reach of those
rural communities . We do not find this argument convincing.
As we noted previously, ANILCA serves a dual purpose: pro-
tecting and preserving the subsistence lifestyle and protecting
and preserving wildlife. 16 U.S.C. 3101 (b)-(c). Granting C
& T determinations that are limited to the areas in which com-
munities have traditionally harvested a resource serves both
purposes. The geographic limitation protects the subsistence
activities traditionally practiced by rural Alaskans and pro-
tects species by ensuring that only those communities that
have traditionally taken from a population are given a priority
to do so in the future.
1131 In fact, the alternative proposed by Federal Defendants
would give the FSB the discretion to grant a rural community
a state-wide C & T determination for a species as long as that
munity could demonstrate a subsistence use of that spe-
cies. There is no support in ANILCA or its implementing reg-
ulations for such unfettered discretion . Moreover, the
resulting pressures on fish and wildlife could threaten the con-
tinued viability of specific fish stock and wildlife populations
and the communities that depend on those populations for
subsistence use. Thus, we conclude that the FSB 's decision to
grant Chistochina a C & T determination for moose in areas
B and C of GMU 12 cannot be supported simply by a finding
that Chistochina residents used moose for subsistence pur-
poses.
Prior to this litigation , the FSB surely agreed. The FSB's
analysis of Chistochina's proposal focused entirely on
whether Chistochina residents took moose within areas B and
C of GMU 12. The proposal template used by Chistochina,
and created by the FSB, directs an applicant for a C & T
determination to describe where the resource in question has
been harvested. The staff analysis recommended granting the
C & T determination because the facts demonstrated "that res-
idents of Chistochina have used moose in [areas B and C]
13452 STATE OF ALAsiA v. FEDEmi . SuasisTENcE BOARD
since the late 19th century." Indeed, if the FSB simply needed
to find that the Chistochina community had a C & T use of
moose anywhere in order to extend Chistochina's C & T
determination to all of GMU 12, no deliberative process
would have been necessary. Chistochina already had a C & T
determination for moose in GMU 12 area A and GMUs 11
and 13 . The record shows that the entire purpose of the C &
T determination process was to determine whether Chis-
tochina residents demonstrated C & T use of moose within
areas B and C of GMU 12. If the FSB had not so found, we
doubt that it would have granted Chistochina residents a C &
T determination for moose in those areas.
1141 Federal Defendants further contend that the FSB's
line-drawing decision was not arbitrary and capricious
because it was rationally based on administrative conve-
nience. Although a representative from the Alaska Depart-
ment of Fish and Game proposed a narrower C & T
determination, the FSB declined to create a new C & T deter-
mination area within GMU 12 for Chistochina because a new
area would provide "no additional benefit to management."
The Staff Committee recommendation explained the use of
both whole units and subdivisions by explaining that differ-
ences in classification "reflect differences in the intensity of
management required for either biological conservation or
allocation purposes." Further , in response to Alaska 's request
for reconsideration, the FSB pointed out that Alaska had pre-
viously "discouraged the Board from subdividing units so as
to avoid creating a patchwork of customary and traditional
use determinations," and argued that using established units
would be clearer to the public than providing individual maps
for individual C & T determinations.
1151 While the FSB did not explicitly state what it consid-
ered the benefit to management , we can reasonably discern
the benefit from the record . If the FSB had to restrict every
C & T determination to the precise area in which a rural com-
munity had demonstrated C & T use of a wildlife population,
STATE OF ALAsKA v. FEDERAL SUBSISTENCE BOARD 13453
the C & T determinations would quickly become unmanage-
able. For example, if the three C & T determination areas for
moose within GMU 12 were replaced by a separate C & T
determination area for each rural community within GMU 12,
GMU 13, GMU II north of the sixty-second parallel, Dot
Lake, Healy Lake, and Chickaloon16 there could easily be a
dozen or more unique C & T determinations for GMU 12
alone. Multiply the effect of those C & T determinations by
the number of GMUs in Alaska - twenty-six - and it is
readily apparent that such a system would soon be very diffi-
cult, if not impossible, to manage. Thus, we conclude that the
FSB's determination that there exists a benefit to management
to limiting the number of C & T determination areas within
GMU 12 provided an additional rational basis for the FSB's
decision.17
D. The C & T determination does not violate ANILCA's
limitations and savings clause.
ANILCA contains a limitations and savings clause that pro-
vides, in relevant part:
Nothing in this subchapter shall be construed as -
"These are the communities that currently enjoy a C & T determination
for moose within some portion of GMU 12. 50 C.F.R. 100.24(a)(1)
(2007).
"'Alaska further contends that administrative convenience cannot pro-
vide a basis for the broader C & T determination because the determina-
tion infringes on state sovereignty. Alaska avers that it had to further
restrict moose hunting on state lands in GMU 12 due to the added pressure
on the resource from Chistochina subsistence hunters. Alaska's argument
fails because the federal C & T determinations only affect wildlife
resources on federal lands, not state lands . While moose do not adhere to
federal and state boundaries, federal regulation of wildlife on federal land
does not encroach on Alaska's sovereignty.
13454 STATE of AIAsKA v. FEDERAL SUBSISTENCE Bonin
(3) authorizing a restriction on the taking of fish and
wildlife for nonsubsistence uses on the public lands
(other than national parks and park monuments)
unless necessary for the conservation of healthy pop-
ulations of fish and wildlife . . . , to continue subsis-
tence uses of such populations, or pursuant to other
applicable law[.]
16 U.S.C. 3125. Alaska contends that the instant C & T
determination places restrictions on nonsubsistence taking
because granting Chistochina residents a federal subsistence
priority to take moose throughout GMU 12 increases moose
taking and thus necessitates greater conservation efforts by
the state.
[161 State hunting regulations for GMU 12 promulgated
after the C & T determination for Chistochina in areas A and
B contained more restrictions than the regulations in place
prior to the C & T determination." This fact, however, does
not demonstrate that the C & T determination authorizes a
restriction on the nonsubsistence use of moose in GMU 12. A
C & T determination does not limit nonsubsistence use; it
simply allows for subsistence use. ANILCA's limitation pro-
vision does not prevent the FSB from regulating subsistence
use simply because a collateral effect of the regulation might
cause a separate regulatory body to place restrictions on non-
subsistence use. It only prohibits the agency itself from limit-
ing nonsubsistence use.
"For example, state regulations for the 2005-2006 hunting season
restricted the moose take from August 24-28 to "one bull with spike-fork
antlers or 50-inch antlers or antlers with 4 or more brow tines on one side"
in -[t]hat portion drained by the Little Tok River upstream from and
including the first eastern tributary from the headwaters of Tuck Creek."
Alaska Admin. Code tit. 5, 85.045 (2005). Regulations for the 2006-
2007 hunting season tripled the area subject to this restriction . Alaska
Admin. Code tit. 5, 85.045 (2006) (applying the restriction on the same
dates to "[t]hat portion in the Tok River drainage upstream from the Tok
cutoff bridge').
STATE of ALASKA v. FEDERAL SUBSISTENCE BOARD 13455
V. Conclusion
[17] While we do not agree with several of the arguments
advanced by Federal Defendants, we ultimately conclude that
the FSB's decision to grant Chistochina residents a C & T
determination for moose in GMU areas B and C was not "ar-
bitrary and capricious, an abuse of discretion, or otherwise not
in accordance with law" under the APA. 5 U.S.C.
706(2)(A). Deferring to the agency's decision, we affirm the
district court's order granting summary judgment to all Defen-
dants.l9
The judgment of the district court is AFFIRMED.
"intervenors, request for attorney's fees under ANILCA, 16 U.S.C.
3117(a), is denied because Alaska 's claim arises under the APA and not
ANILCA. See footnote 7, supra, and accompanying text.
Page I of I
Byers, Gail Y (LAW)
From: Colberg, Talis J (LAW) j/O=SOA/OU=FIRST ADMINISTRATIVE
GROUP/CN=RECIPIENTS/CN=TJCOLBERGI
Sent: Thursday, September 25, 2008 9:55 AM
To: '
Subject: FW: NOAA press release attached for Cook Inlet Beluga Count
From: Nizich, Michael A)
Sent: Thursday, September 25, 2008 9:50 AM
To: Colberg, Tails 3 (LAW)
Subject: Re: NOAA press release attached for Cook Inlet Beluga Count
's account is
From: Colberg, Tails J (LAW)
To:
Cc: Nizich, Michael A)
Sent: Thu Sep 25 09:39:12 2008
Subject: FW: NOAA press release attached for Cook Irdet Beluga Count
FYI. The beluga count is the same as last year. Talis
From: Meyen, Bradley E (LAW)
Sent: Thursday, September 25, 2008 9:31 AM
To: Colberg, Tails J (LAW); Gordon, Nancy R (LAW); Tillery, Craig 3 (LAW); Barry, Elizabeth J (LAW)
Cc: Daugherty, Steven A (LAW)
Subject: RE: NOAA press release attached for Cook Inlet Beluga Count
Sorry, forgot the attachment.
Brad Meyen
Assistant Attorney General
Natural Resources Section
From: Meyen, Bradley E (LAW)
Sent: Thursday, September 25, 2008 9:30 AM
To: Colberg, Tails I (LAW); Gordon, Nancy R (LAW); Tillery, Craig J (LAW); Barry, Elizabeth J (LAW)
Cc: Daugherty, Steven A (LAW)
Subject: NOAH press release attached for Cook Inlet Beluga Count
FYI-copy of the Beluga count press release is attached . The litigation filed by various groups in U.S. District Court
over NOAA's 6 month extension to make the decision on listing is effectively on hold now pending release of that
listing decision on or before October 20, 2008.
Brad Meyen
Assistant Attorney General
Natural Resources Section
6/9/2009
i IATl 1+ AL OCEANIC AND
M
ATMOSPHERIC DMINIS ATION
U.NI . Tan STAT. E3 L)EPARTKENT O ; F CDYNHRtCE
Contact: Sheela McLean FOR IMMEDIATE RELEASE
Sept. 25, 2008
NOAA : Cook Inlet Beluga Population . Holds Steady from 2007
The Cook Inlet beluga whale population has held steady from last year's count of 375
animals, based on NOAA's Fisheries Service latest annual survey.
NOAA's Fisheries Service scientists conducted aerial surveys in early June during fish
migrations, when belugas concentrate near river mouths , including the Susitna and Little
Susitna rivers , Knik Arm , and Chickaloon Bay.
NOAA's Fisheries Service scientists flew over upper Cook Inlet on seven days between
June 3 and 12, manually counting the belugas while taking photographs and video of the
whales.
Scientists later carefully examined the images to provide a more complete estimate of
the total number of beluga whales in the inlet.
When scientists reanalyzed the 2008 survey observations , the population estimate
remained the same as last year-375.
In 2007, NOAA's Fisheries Service accepted a petition to list the Cook Inlet beluga
population as endangered under the Endangered Species Act. A final determination following
pletion of the population status review is due in October.
NOAA's Fisheries Service declared the Cook Inlet beluga population depleted in 2000
under the Marine Mammal Protection Act. The population , however, has not recovered as
hoped. Alaska native groups have been allowed to hunt the whales under co-management
agreements with NOAA's Fisheries Service, with restrictions on how many whales could be
taken in a given year. Between 1999 and 2007, hunters took five beluga whales for subsistence
in Cook Inlet, down from 308 between 1995 and 1998 . There was no subsistence hunt for
beluga whales in 2008.
Cook Inlet belugas are one of five beluga populations recognized within U.S. waters.
The others are Bristol Bay, eastern Bering Sea, eastern Chukchi Sea and Beaufort Sea.
The Cook Inlet beluga population estimates since 1994 are:
1994: 653
1995 491
1996: 594
1997: 440
1998: 347
1999: 367
2000: 435
2001: 386
2002: 313
2003:357
2004:366
2005.278
2006: 302
200T 375
2008:375
NOAA understands and predicts changes in the Earth's environment , from the depths of the
ocean to the surface of the sun , and conserves and manages our coastal and marine resources.
Visit http://www.noaa.gov.
On the Web:
NOAA Fisheries in Alaska : http://www.alaskafisheries.noaa.gov
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