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Alaska Fish & Wildlife Fed'n & Outdoor Council, Inc. v. Dunkle

Citation: 19 ELR 20081
No. No. J84-013 Civil, (D. Alaska, 06/29/1988) On remand

The court holds that agreements between the U.S. Fish and Wildlife Service (FWS) and native Alaskans authorizing subsistence hunting of migratory geese during closed season in exchange for assistance in enforcing other hunting prohibitions violated the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the Migratory Bird Treaty Act (MBTA). The court first holds that although the agreements have expired, a circuit court directive requires it to determine whether they violated the law. The court next holds that the agreements were "binding norms" that limited agency discretion and therefore required notice and comment under APA § 553. The court holds that the agreements were not exempted from this requirement as "general statements of policy" under APA § 553(b)(3)(A) because they did not meet the criteria of operating only prospectively and leaving the agency's discretion unfettered. They had present effects because no further action was necessary or contemplated to implement them. They limited the agency's discretion because they specifically authorized certain hunting activities in exchange for reciprocal concessions. Thus, although the agreements were not legally binding, they circumscribed the agency's enforcement options.

The court also holds that the agreements violated NEPA. The court holds that adoption of a substantive rule allowing hunting during a closed season is a federal action requiring preparation of an environmental assessment (EA) under 40 C.F.R. § 1501.4(b). The FWS prepared no EA. Studies conducted after the agreements were concluded did not qualify as EAs, which must be prepared in advance, and a prior EA for another action did not cover the agreements because it did not discuss them.

The court also holds that the MBTA prohibits the FWS from authorizing subsistence hunting that is not permissible under applicable treaties. The Convention for the Protection of Migratory Birds does not permit hunting during the closed season. The court holds that the FWS went beyond exercising its discretion to conduct selective enforcement. It authorized closed-season hunting, thus legislating an impermissible exception to the MBTA. The court grants declaratory relief but refuses injunctive relief, holding that the plaintiffs should bring a separate challenge in the unlikely event that any new plan presents similar problems. Finally, the court holds that its order is a final judgment.

[A related opinion is published at 18 ELR 20156.]

Counsel for Plaintiffs
Gregory F. Cook
P.O. Box 618, Douglas AK 99824
(907) 586-9719

Counsel for Defendants
Bruce Landon, Ass't U.S. Attorney
701 C St., Box 69, Anchorage AK 99513
(907) 271-5071

Larri Irene Spengler, Ass't Attorney General
Pouch K, State Capitol, Juneau AK 99811
(907) 465-3600

Counsel for Intervenors
Donald C. Mitchell
411 W. 4th St., Ste. 301, Anchorage AK 99501
(907) 274-3611, (907) 276-1681