Alaska Fish and Wildlife Federation and Outdoor Council, Inc. v. Dunkle

No. J84-013 Civil (D. Alaska June 29, 1988)

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

[19 ELR 20082]

von der Heydt, J.:

Memorandum and Order

THIS MATTER is before the court on remand from the Court of Appeals and on the renewed cross-motions of the parties for dismissal or summary judgment. The motions necessitate an excursion into an area of law once compared to "the Serbonian Bog." Jean v. Nelson, 711 F.2d 1455, 1480 (11th Cir. 1983).

This case arises from the policy of the U.S. Fish and Wildlife Service regarding the spring hunting of migratory geese in their nesting range in the Yukon-Kuskokwim Delta. The four species in question are Cackling Canada Geese, White Fronted Geese, Emperor Geese, and Pacific "Black" Brant. USFWS has assumed, and the Circuit Court has now held, that all harvesting of these species, whether for subsistence or otherwise, is prohibited under the Migratory Bird Treaty Act¹ between March 10 and September 1 of each year. The birds for untold generations have been an important part of the diet of Alaska Natives living in the delta. The March to September closure leaves the Natives practically no legal access to the four species, because their presence in the nesting range is essentially limited to the closed season. Outside the closed season, some sport hunting has been permitted in Alaska and California. This circumstance has been unpopular with delta residents.

For political and geographic reasons, USFWS has concluded that traditional means of enforcing game laws are not effective in the vast and isolated delta. Alarming declines in the populations of protected birds led USFWS to seek innovative solutions to the problem of illicit hunting in the closed season. In January of 1984 it negotiated a cooperative agreement with the Association of Village Council Presidents, as well as with state game authorities and sportsmen's groups in Alaska and California. This agreement, the Hooper Bay Agreement, was superseded a year later by the 1985 Yukon-Kuskokwim Goose Management Plan. Both agreements sought to reduce harvest substantially by enlisting Native cooperation in the enforcement of certain aspects of the March-to-September closure. In return, USFWS would not interfere with hunting during the closed season under certain defined circumstances.

The parties concur that since 1984 "the populations of some of the geese at issue in this case have climbed" and "the percentage increases look impressive." Plaintiffs' Reply to Defendants' and Intervenors' Oppositions to Plaintiffs' Renewal of Motion for Summary Judgment and Opposition to Motion to Dismiss (Docket No. 157), at 12. The parties do not agree regarding how much credit for these successes — if any — should be attributed to the cooperative agreements. The parties also dispute whether other approaches might have led to even greater bird population gains.

In this lawsuit the plaintiffs, supported by the National Rifle Association and the Gun Owners Foundation, have contended that the 1984 and 1985 agreements were adopted in violation of both procedural and substantive statutes. Early in 1986 this court dismissed their claims. The lynchpin of that ruling, a holding that the 1925 Alaska Game Law² superseded the Migratory Bird Treaty Act with respect to the hunting at issue, has been reversed by the Ninth Circuit. Alaska Fish and Wildlife Federation v. Dunkle, 829 F.2d 933 [18 ELR 20156] (9th Cir. 1987). The Supreme Court denied certiorari on April 4, 1988. Alaska Federation of Natives v. Alaska Fish and Wildlife Federation, 108 S. Ct. 1290 (1988).

A. Validity of the 1984 and 1985 Agreements

1. Mootness

The Hooper Bay Agreement and the 1985 GMP have expired. They have been replaced by later annual plans. The 1988 agreement, as will be seen, is substantially different in form and substance from the agreements before the court. The State of Alaska contends that the validity of the prior agreements is now moot. Cf. SEC v. Medical Committee for Human Rights, 404 U.S. 403, 406 (1972). The Circuit Court has expressly held otherwise, 829 F.2d at 938-39, and has ordered this court "to determine whether the Hooper Bay Agreement and the 1985 Goose Management Plan violate the provisions of the MBTA," 829 F.2d at 935. It has also determined that plaintiffs' Administrative Procedure Act (APA) and National Environmental Policy Act (NEPA) claims "must . . . be resolved by the district court." Id. at n.1.

Whatever the merits of the State's argument, this court is bound by the Ninth Circuit directive. Nonetheless, court and counsel have expended considerable time and effort reviewing agreements that expired years ago and whose questioned attributes are now relics of the past. The practical value of this exercise escapes the undersigned judge.

2. Violations of Procedural Statutes

a. Facts

The Hooper Bay Agreement included the following language relating to the harvest of White Fronted Geese and Pacific Brant:

1) Traditional subsistence harvest allowed in the spring until nesting begins

2) Traditional subsistence harvest allowed in the fall after birds are on the wing

It is undisputed that there exists a period of significant length that falls after March 10 and after the geese arrive, but before they begin to nest. It follows that the quoted language related, at least to some degree, to hunting that would take place between March 10 and September 1.

The signatories of the Hooper Bay Agreement, including USFWS, published a pamphlet for delta residents purporting to summarize the Hooper Bay Agreement. In a box relating to White Fronted Geese and Pacific Brant it contained the following language:

Hunting OK before nesting

Hunting OK when flying again

Above each of these phrases is a picture of a man firing a gun. This picture contrasts with the drawing in the box for Cackling Canada Geese; there, the same picture of a hunter has an X through it and the caption "No hunting."

The 1985 GMP included the following language relating to Pacific Brant and White Fronted and Emperor Geese:

1. Subsistence hunt in spring until nesting.

2. Subsistence hunt in fall when the birds are on the wing.

The parties agree that, apart from the addition of Emperor Geese, this language represented a continuation of the provisions of the Hooper Bay Agreement quoted above. See responses to minute order of March 4, 1985. So far as the court is aware, no new pamphlet was distributed summarizing the new language.

The two agreements contained numerous other provisions too complex to reproduce here. In a nutshell, however, the give-and-take of the agreements may be summarized as follows. USFWS agreed to language indicating that subsistence hunting for certain species was "OK" during parts of the closed season, and agreed to take measures to reduce other pressures on the geese. In exchange, the Native leaders agreed to assist in the enforcement of hunting prohibitions contained in the agreements.

USFWS did not conduct a notice and comment procedure as defined by 5 U.S.C. § 553 prior to signing the agreements. It prepared no NEPA document of any kind on either agreement.

b. Analysis

As the Service concedes, the APA contains a very broad definition of "rule." 5 U.S.C. § 551(4). There has been no attempt to place the statements at issue outside that definition. USFWS explains its failure to use APA notice and comment procedures by characterizing the language at issue as a "general statement of policy." Congress has excepted such statements from APA procedures. 5 U.S.C. § 553(b)(3)(A). The Service contends that by signing the agreements it simply announces a general, nonbinding policy of nonenforcement under certain circumstances. The centerpiece of the USFWS argument is American Bus Ass'n v. United States, 627 F.2d 525 (D.C. Cir. 1980), a case that fails to support its analysis.

Of course, the Fish and Wildlife Service has broad discretion with respect to enforcement. But even where an agency's discretion is broad, the adoption of a "binding norm" that channels or limits that discretion requires notice and comment. See Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). Indeed, one court has held expressly that a binding norm with respect to enforcement policy, like any other binding norm, must be preceded by notice and comment. Community Nutrition Institute v. Young, 818 F.2d 943, 945-46 & n.4 (D.C. Cir. 1987).

This circuit, among others, has identified two criteria that determine whether a statement is a binding norm. Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1014 (9th Cir. 1987). First, to fall within the exception for general statements of policy a statement "must operate only prospectively." Id. Second, only a statement that "genuinely leaves the agency and its decision-makers free to exercise discretion" qualifies for the exception.³ American Bus, supra, 627 F.2d at 529; Mada-Luna, supra, 813 F.2d at 1014. A statement that runs afoul of either criterion may not be exempted from notice and comment on the basis of the policy statement exception.⁴ Id. In evaluating a statement, the court should "give some, albeit 'not overwhelming,' deference to an agency's characterization of its statement." Community Nutrition Institute, supra, 818 F.2d at 946 (quoting opinion of Scalia, J. in Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537 (D.C. Cir. 1986)). On the other hand, exceptions to the notice or comment requirement are to be drawn narrowly. National Ass'n of Home Health Agencies v. Schweiker, 690 F.2d 932, 949 (D.C. Cir. 1982), cert. denied, 459 U.S. 1205 (1983).

The first criterion may represent no more than a circular definition: a statement is a binding norm if it has any present binding effect. See Community Nutrition Institute, supra, 818 F.2d at 946 n.4. If, however, the first criterion is applied as it was in American Bus (the case emphasized by USFWS), the statements at issue here clearly fell outside the policy statement exception. American Bus held that a statement has present, rather than prospective, effect if no further action is necessary or contemplated to carry it out. 627 F.2d at 531. Once USFWS had announced that hunting was "allowed" during part of the closed season, no further action or decision regarding enforcement against such hunting would be needed or could reasonably have been contemplated for the remainder of the season.

It is even more plain that the USFWS statements failed to meet the second criterion. In evaluating whether a statement leaves an agency "genuinely . . . free," courts give strong weight to the language actually used by the agency, emphasizing, for example, the difference between "will" and "may." Community Nutrition Institute, 818 F.2d at 946; see also American Bus, 627 F.2d at 531. There simply is nothing tentative or precatory about the language chosen by USFWS: hunting was "allowed" and was "OK." Courts evaluate whether a statement "puts a stamp of approval or disapproval on a given type of behavior." American Hospital Ass'n v. Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1987). Again, the 1984 and 1985 agreements could not have been more definite in placing a stamp of approval on conduct that previously had not been approved.

Perhaps most telling of all, the Service did not issue these pronouncements gratuitously. It extracted concessions from the Natives in exchange for doing so. By engaging in a quid pro quo with private parties, the Service ensured that to reverse or violate the nonenforcement policy would be costly, both in terms of the agency's conservation goals and in terms of its credibility. To be sure, as USFWS points out, the statements were not legally binding; the council presidents could not sue the agency if it began making arrests.⁵ But the issue is not the technical legal effect of the statements, but rather their "calculable effect." American Bus, 627 F.2d at 530; Community Nutrition Institute, supra, 818 F.2d at 948 (whether legally binding "is not determinative"). Here, the calculable and practical effect was to "circumscribe" the enforcement options open to the Service. Id. That is all that is required to activate the notice and comment requirement.

In addition to § 553 of the APA, the USFWS procedures violated NEPA. Adoption of a substantive rule allowing hunting during a closed season was a federal action not within any categorical exclusion established under 40 C.F.R. § 1501.4(a). Accordingly, 40 C.F.R. § 1501.4(b) required the preparation of, at the least, an environmental assessment. None was prepared.

Remarkably, USFWS points to studies completed in 1986 and 1987 in contending that it complied with NEPA. NEPA documents areplanning documents. 40 C.F.R. § 1501.2. Studies completed after the subject action has been taken cannot serve in this planning function and do not represent compliance with the statute or its implementing regulations. See Sierra Club v. Morton, 514 F.2d 856, 879 (D.C. Cir. 1975), rev'd on other grounds sub nom Kleppe v. Sierra Club, 427 U.S. 390 (1976).

The Service also relies on a 1980 Environmental Assessment prepared in connection with an unratified international agreement. The court has been provided only with the odd-numbered pages of this document. In any event, it apparently contains no discussion of the Hooper Bay Agreement or its innovative approach to the enforcement problem, nor any treatment of the status of the geese between 1980 and 1984. The 1980 EA could have been incorporated by reference into a 1984 NEPA document for the Hooper Bay Agreement, and as such could have provided part of the analysis required under NEPA. It cannot stand alone as a NEPA analysis of the 1984 and 1985 agreements, however.

3. Violations of Substantive Laws

This court has been ordered to determine whether the 1984 and 1985 agreements violated the MBTA. The Court of Appeals has held that "[t]he MBTA permits the Secretary to adopt regulations permitting subsistence hunting only to the extent that the hunting is permissible under the treaties with Canada, Mexico, Japan, and the Soviet Union." AFWF v. Dunkle, 829 F.2d at 945. Since Article II of the Canadian treaty (supra note 1) imposes a March 10 to September 1 closure on all types of hunting of Western migratory game birds, the adoption of a substantive rule authorizing such hunting would be an act beyond the scope of the Secretary's authority as defined by the Ninth Circuit. See id. at 941-42.

The Fish and Wildlife Service contends that it did not authorize closed-season hunting, but instead merely exercised its discretion to engage in selected enforcement. As seen in the preceding section, however, the Service replaced its discretion with a "binding norm." Indeed, the Hooper Bay Agreement used the word "allowed," and the published handbook or informational pamphlet for delta hunters used the word "OK." Both of these are terms of authorization; they depart from the language of nonenforcement. The acceptance of a quid pro quo for the use of this language added to its authoritative effect. USFWS crossed the line from the realm of enforcement discretion into the realm of legislating an unauthorized exception to a Congressional statute.

It may be useful to draw an analogy to a well-known area of nonenforcement, the 55-mile-per-hour speed limit. There can be no doubt that the highway patrol has discretion to ignore violations of the limit, or even to announce that it will not allocate resources to enforcement against motorists travelling less than, for example, 65 miles per hour. But suppose the patrol were to arrange a meeting with a local motorcycle club, and at the meeting the club agreed that its members would report traffic violators. In exchange, the [19 ELR 20084] patrol would announce that the cyclists were henceforth "allowed" to ride at 80 miles per hour. This would strike most people as an unauthorized exception to the speed limit mandated by the legislature. In the case at bar, a particular group of hunters — delta subsistence hunters — obtained an unauthorized exception to the closed season mandated by Congress.

As the Circuit Court has noted, this court need not reach plaintiffs' claim under 16 U.S.C. § 668dd, 829 F.2d at 935 n.1, nor its arguments pursuant to migratory bird treaties between the United States and Japan, Mexico, and the Soviet Union, 829 F.2d at 941-42. The court's January 24, 1986 dismissal of plaintiffs' state law claims was not raised on appeal and remains in effect. The same is true of the court's dismissal of plaintiffs' claims insofar as they challenged the 1975 Watson Nonenforcement Policy.⁶

B. Remedy

Plaintiffs seek an order that:

1) declares that the terms of HBA and [1985] YKDGMP violate MBTA;

2) enjoins USFWS and [Alaska Department of Fish & Game] from formally or informally acting pursuant to the goose hunting provisions of those agreements;

3) declares that HBA and YKDGMP were procedurally defective for failure to comply with the APA's notice and comment provisions;

4) declares that HBA and YKDGMP were procedurally defective for failure to comply with NEPA;

5) enjoins USFWS from acting pursuant to HBA, YKDGMP, and similar plans or agreements until it performs a comprehensive EIS analyzing management of migratory geese that nest in the Y-K delta or, alternatively, requiring immediate preparation by USFWS of such an EIS; and

6) grants attorney's fees to the Conservation Fund under the Equal Access to Justice Act.

Plaintiffs' Supplemental Memorandum for Oral argument (Docket No. 160a), at 32. Plaintiffs clearly are entitled to the declaratory judgments requested in items (1), (3), and (4). They may be entitled to a fee award as requested in item (6), but such a request should await entry of judgment and should be supported by itemized documentation of the fees incurred. See Skip Kirchdorfer, Inc. v. United States, 803 F.2d 711, 712 (Fed. Cir. 1986). Item (2) plainly is unavailable at this stage; it is undisputed that neither the Hooper Bay Agreement nor the 1985 GMP remains in force. This leaves item (5), which seeks an injunction against "similar" agreements or a mandatory injunction requiring preparation of an EIS.

These remedies are also inappropriate. The latter approach is fraught with problems of enforceability. The standard NEPA remedy is a negative injunction. E.g., Sierra Club v. Penfold, 664 F. Supp. 1299, 1312-16 [17 ELR 21254] (D. Alaska 1987). The court is aware of no case imposing a mandatory decree. Turning to the former approach, it likely would be impossible to frame an injunction against "similar" acts that would satisfy the specificity requirement of F.R. Civ. P. 65(d). E.g., American Greetings Corp. v. DanDee Imports, Inc., 807 F.2d 1136, 1146-47 (3d Cir. 1986). Any new plan presenting, in plaintiffs' view, the same problems as the 1984 and 1985 agreements should be challenged individually. If plaintiffs were correct about the similarity, the existence of a prior declaratory judgment would make preliminary and permanent relief, if otherwise appropriate,⁷ very simple to obtain. At the same time, the likelihood of a fee award and the possibility of a disruptive injunction would probably motivate defendants to avoid similar conduct, if possible.

Notably, the likelihood that an arrangement very similar to those of 1984-85 will reappear seems to be remote. Cf. Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (no injunction unless injury is "of such imminence that there is a 'clear and present' need for equitable relief") (quoting prior authority; emphasis in original); Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) ("danger must be more than a mere possibility"). The court has before it a copy of the 1988 Yukon-Kuskokwim Delta Goose Management Plan, provided after briefing was complete. No party has challenged that plan. Notably, the plan's language regarding enforcement of the closed season (PA.4) differs radically from the language analyzed in this order. The express authorization of closed season hunting has been eliminated in favor of a discussion of enforcement priorities. Cf. Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th Cir. 1983) (no binding norm if agency free to consider individual facts of cases that arise), cert. denied, 466 U.S. 927 (1984). Other new elements are an environmental assessment evaluating various alternatives and a notice and comment process regarding the announcement of enforcement priorities.

C. Final Judgment

The present order, together with prior dismissals, addresses all of the causes of action of plaintiffs' complaint with respect to all plans and policies challenged before this court. Likewise, all matters subject to the Ninth Circuit remand have been addressed. The court is therefore in a position to enter final judgment.

Some parties may have assumed the court would maintain this case in an open status on the chance that further disputes would arise between the parties. There is no basis in federal procedure for doing so. Moreover, such an approach could delay entry of the declaration desired by plaintiffs, see Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir. 1985), and would delay or complicate treatment of attorneys' fees issues. Kirchdorfer, supra, 803 F.2d at 712.

Accordingly, IT IS ORDERED:

(1) THAT defendant Collinsworth's "Motion Requesting Dismissal and Retention of Jurisdiction" (Docket No. 150) is denied;

(2) THAT intervenors' "Motion to Dismiss" (Docket No. 151) is denied;

(3) THAT defendant Collinsworth's "Renewed Motion for Summary Judgment" (Docket No. 149) is denied;

(4) THAT federal defendants' renewed motion for summary judgment (Docket No. 153) is denied;

(5) THAT plaintiffs' renewed motion for partial summary judgment (Docket No. 141) is granted according to the terms set forth above.

1. 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. §§ 703-711). The MBTA incorporates the closed season defined by the Convention for the Protection of Migratory Birds, August 16, 1916, United States-Great Britain (on behalf of Canada), 39 Stat. 1702, T.S. No. 628.

2. 43 Stat. 739.

3. An alternative way of describing this criterion is to ask whether the statement has a substantial impact on agency decision-making. See Mada-Luna, supra, 813 F.2d at 1014. Plaintiffs should note that the Ninth Circuit has rejected the older practice of evaluating the impact on the public, rather than on the decision-maker, which had been called the "substantial impact test." Id.; see Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir.), cert. denied, 423 U.S. 824 (1975).

4. USFWS does not contend that the statements fall within either of the other two exceptions set forth in 5 U.S.C. § 553(b)(3)(A), and clearly they do not. See generally Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984) (defining interpretive rules); National Ass'n of Home Health Agencies v. Schweiker, 690 F.2d 932, 949-50 (D.C. Cir. 1982) (discussing rules of agency organization, procedure, or practice), cert. denied, 459 U.S. 1205 (1983).

5. The statements might prove legally binding in the sense that a court might dismiss charges brought in violation of the agreement as reprinted in the parties' pamphlet for delta residents. See Community Nutrition Institute, supra, 818 F2d at 948 ("it would be daunting indeed to try to convince a court that the agency could appropriately prosecute a producer").

6. Procedural challenges to that policy would be barred in any case by 28 U.S.C. § 2401(a). Sierra Club v. Penfold, 1987 U.S. Dist. LEXIS 12807 [18 ELR 20463] (D. Alaska, Memorandum and Order filed November 6, 1987), slip op. at Part III(B)(2)(B)(ii).

7. It would always be necessary to evaluate whether an injunction leaving the delta with no agreement or plan would risk more harm to the environment than continuation of the illegal agreement or plan. Were there no independent reasons, discussed above, for denying an injunction in the present case, plaintiffs would now be faced with this very hurdle. A hearing might be required to resolve factual disputes.