Ninilchik Traditional Council v. United States

No. 99-35017 (227 F.3d 1186) (9th Cir. September 14, 2000)

ELR Digest

The court affirms in part and reverses in part the Federal Subsistence Board's decision to impose an antler restriction on subsistence uses of moose in game management unit (GMU) 15 on the Kenai Peninsula, Alaska. The court first holds that the board's reading of the term priority within the meaning of the Alaska National Interest Lands Conservation Act (ANILCA) § 3114 as allowing it to balance the competing aims of subsistence use, conservation, and recreation, while at the same time providing subsistence hunters with a meaningful use preference, is reasonable. ANILCA provides for a number of important purposes, all of which must be balanced by the Secretary of the Interior. Subsistence living, although at the heart of ANILCA, is not a per se preemptive statutory priority. The court next holds that a reviewing court must apply the deferential Administrative Procedure Act (APA) standard in the absence of a stated exception when reviewing federal agency decisions. Thus, because ANILCA's provision authorizing judicial enforcement of subsistence priority is silent, the court reviews the board's decision to apply the antler restriction to subsistence uses of moose under the APA's arbitrary and capricious standard. The court then holds that the board considered the relevant factors in concluding that the restrictions are necessary to protect the continued viability of the bull moose population in GMU 15. The court also holds that the board was not arbitrary or capricious in concluding that the advance harvest season reserved for subsistence hunters in two sections of GMU 15 qualifies as a meaningful preference under ANILCA. The court, however, further holds that the board's determination that the two days reserved for subsistence hunters in the third section of GMU 15 qualify as a priority is arbitrary and capricious. The board failed to provide any support for its conclusion.

The full text of this decision is available from ELR (16 pp., ELR Order No. L-270).

Counsel for Plaintiffs
William E. Caldwell
Alaska Legal Services Corporation
1648 S. Cushman St., Ste. 300, Fairbanks AK 99701
(907) 452-5181

Counsel for Defendants
Todd Kim
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[31 ELR 20094]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]