Alaska Wildlife Alliance et al v. Haaland et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA 	WILDLIFE 	ALLIANCE, 	et
al.,
Plaintiffs,
v.
DEBRA HAALAND, Secretary of the
Interior, et al.,
Defendants,
and
SAFARI CLUB INTERNATIONAL, et
al.,
Intervenor-
Defendants.
Case No. 3:20-cv-00209-SLG
ORDER RE MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 47 is Plaintiffs’1 Motion for Summary Judgment.
Intervenor-Defendants2 responded in opposition at Docket 81, to which Plaintiffs
replied at Docket 83. 	Federal Defendants did not file a response to the motion.
Intervenor-Defendants filed a Notice of Supplemental Authority at Docket 99, to
1 Plaintiffs are Alaska Wildlife Alliance, Alaska Wilderness League, Alaskans for Wildlife, Center
for Biological Diversity, Coalition to Protect America’s National Parks, Copper Country Alliance,
Defenders of Wildlife, Denali Citizens Council, The Humane Society of the United States,
National Parks Conservation Association, Northern Alaska Environmental Center, Sierra Club,
and Wilderness Watch.
2 Intervenor-Defendants are Safari Club International, Alaska Professional Hunters Association,
Sportsmen’s Alliance Foundation, and the State of Alaska.
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which Plaintiffs responded at Docket 100. 	Oral argument was held on August 5,
2022.
BACKGROUND
This case concerns a 2020 National Park Service (NPS) rule (2020 Rule)
that permits certain hunting practices authorized under the State of Alaska’s
hunting regulations to take place on National Preserves in Alaska.3 The 2020 Rule
withdrew a prior rule, promulgated by NPS in 2015 (2015 Rule), that preempted
State law and prohibited the hunting practices on National Preserves.4 The 2020
Rule reverses course and defers to State management, thereby making the State’s
non-subsistence hunting practices applicable to National Preserves.5 Plaintiffs are
a number of environmental organizations contending that the 2020 Rule violated
the National Park Service Organic Act (Organic Act), 54 U.S.C. § 100101 et seq.;
the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3101
et seq.; the Congressional Review Act (CRA), 5 U.S.C. §§ 801–808; and the
Administrative Procedure Act (APA), 5 U.S.C. §§ 551–559.6
3 Docket 1 (Compl.); see also Alaska; Hunting and Trapping in National Preserves, 85 Fed. Reg.
35,181 (June 9, 2020) (codified at 36 C.F.R. pt. 13) (hereinafter “2020 Rule”).
4 See Alaska; Hunting and Trapping in National Preserves, 80 Fed Reg. 64,325 (Oct. 23, 2015)
(previously codified at 36 C.F.R. pt. 13) (hereinafter “2015 Rule”).
5 See 2020 Rule, 85 Fed. Reg. at 35,182.
6 See Docket 1; Docket 47 at 9, 26 (Pls.’ Opening Br.).
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NPS promulgated the 2015 Rule to address what NPS then perceived as a
conflict 	between 	State 	and 	Federal 	law 	regarding 	certain 	predator 	hunting
practices in National Preserves in Alaska. The State-authorized hunting practices
were designed to decrease predator populations with the goal of increasing
opportunities for the human harvest of prey species. 	According to NPS in 2015,
these 	State 	practices 	conflicted 	with 	Federal 	law 	due 	to 	the 	different 	legal
frameworks at the State and Federal level.7 The Alaska Constitution provides that
the State must manage wildlife in accordance with the “sustained yield principle.”8
State law defines this principle as requiring “the achievement and maintenance in
perpetuity of the ability to support a high level of human harvest of game.”9 	To
achieve this goal, the Alaska Board of Game (BOG) “adopt[s] regulations to
provide 	for 	intensive 	management 	programs 	to 	restore 	the 	abundance 	of
productivity of identified big game prey populations as necessary to achieve
human consumptive use goals.”10
Whereas 	State 	law 	permits 	the 	manipulation 	of 	natural 	processes 	to
increase wildlife populations for harvest, Federal law requires the preservation of
7 See 2015 Rule, 80 Fed. Reg. at 64,326.
8 Alaska Const. art. VIII, § 4.
9 Alaska Stat. § 16.05.255(k)(5).
10 Alaska Stat. § 16.05.255(e).
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natural wildlife populations.11 	Congress passed the Organic Act in 1916 “to
conserve the scenery, natural and historic objects, and wild life” of the National
Park System.12 ANILCA extends this mandate to National Preserves in Alaska.13
NPS Management Policies, adopted in 2006, provide that NPS must “protect
natural ecosystems and processes, including the natural abundances, diversities,
distributions, densities, age-class distributions, populations, habitats, genetics,
and behaviors of wildlife.”14 The Management Policies expressly prohibit “activities
to reduce . . . native species for the purpose of increasing numbers of harvested
species (i.e. predator control)” on NPS lands.15
Congress passed ANILCA in 1980 to ensure the preservation of Federal
lands in Alaska “for the benefit, use, education, and inspiration of present and
future generations[.]”16 	ANILCA also provides that the National Preserves of
Alaska “shall be administered and managed . . . in the same manner as a national
park . . . except that the taking of fish and wildlife for sport purposes and
11 See 2015 Rule, 80 Fed. Reg. at 64,326.
12 54 U.S.C. § 100101.
13 See 16 U.S.C. § 3201.
14 2015 Rule, 80 Fed. Reg. at 64,326 (citing Nat’l Park Serv., Management Policies 2006 § 4.1,
4.4.1, 4.4.1.2, 4.4.2 (2006)) (hereinafter “NPS Management Policies”).
15 NPS Management Policies § 4.4.3.
16 16 U.S.C. § 3101(a).
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subsistence uses, and trapping shall be allowed in a national preserve.”17 ANILCA
accordingly requires the management of National Preserves in Alaska to further
two sometimes conflicting undertakings: resource preservation and hunting.
In the 2015 Rule, NPS analyzed the legislative history of both the Organic
Act and ANILCA in an effort to explain its understanding of how Congress intended
to 	strike 	the 	balance 	between 	these 	two 	undertakings.18 	NPS 	noted 	that
Representative Morris Udall said with respect to ANILCA that “[t]he standard to be
met in regulating the taking of fish and wildlife and trapping, is that the preeminent
natural values of the Park System shall be protected in perpetuity, and shall not be
jeopardized by human uses.”19 	The Senate Committee on Energy and Natural
Resources explained that “[i]t is contrary to the National Park Service concept to
manipulate 	habitat or populations 	to 	achieve maximum utilization 	of natural
resources.”20 	NPS accordingly concluded in 2015 that hunting practices that
manipulate wildlife populations or alter natural wildlife behaviors to benefit human
harvest are not consistent with the Organic Act, ANILCA, or the NPS Management
Policies.21
17 16 U.S.C. § 3201.
18 See 2015 Rule, 80 Fed. Reg. at 64,325–26; 64,334.
19 126 Cong. Rec. H10549 (Nov. 12, 1980) (Statement of Rep. Udall).
20 S. Rep. No. 96-413, at 171 (1979).
21 See 2015 Rule, 80 Fed. Reg. at 64,326.
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NPS observed in 2015 that despite these Federal directives, the State of
Alaska had been allowing increasingly liberalized methods of hunting to increase
the harvest of predator species. 	Over the course of ten years, NPS objected to
over 50 State proposals intended to accomplish this objective in several National
Preserves. At one BOG meeting, the BOG Chairman suggested that if NPS sought
to prohibit these hunting practices in National Preserves, NPS would have to
promulgate Federal rules to that effect. 	In response, NPS promulgated the 2015
Rule to prohibit State hunting regulations liberalizing predator hunting practices in
National Preserves.22
The 2015 Rule expressly prohibited “predator reduction efforts,” which the
rule defined as “[a]ctivities or management actions . . . with the intent or potential
to 	alter 	or 	manipulate 	natural 	ecosystems 	or 	processes 	(including 	natural
predator/prey 	dynamics, 	distributions, 	densities, 	age-class 	distributions,
populations, genetics, or behavior of a species).”23 The 2015 Rule also prohibited
the following hunting practices by non-subsistence hunters: taking black bears with
artificial light at den sites, taking brown bears and black bears over bait, taking
22 See 2015 Rule, 80 Fed. Reg. at 64,326.
23 2015 Rule, 80 Fed. Reg. at 64,327.
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wolves and coyotes during the denning season, taking swimming caribou or taking
caribou from motorboats under power, and using dogs to hunt black bears.24
Following the 2016 presidential election, the new administration sought to
prioritize 	the 	States 	as 	the 	primary 	authorities 	to 	manage 	fish 	and 	wildlife.
Secretary of Interior Ryan Zinke directed agencies to “review all regulations,
policies, 	and 	guidance 	pertaining 	to 	fish 	and 	wildlife 	conservation 	and
management, specifically provisions that are more restrictive than otherwise
applicable State provisions.”25 Secretary Zinke also signed two Secretary’s Orders
intended to “improve the management of game species and their habitat.” 26 	On
April 3, 2017, Congress invoked the CRA to repeal a U.S. Fish and Wildlife Service
(FWS) rule for the Alaska National Wildlife Refuges (Refuges Rule) that was nearly
identical to the 2015 Rule as to the hunting practices it prohibited. 	As a result of
the Congressional repeal of the Refuges Rule, State hunting regulations currently
apply in most Alaska National Wildlife Refuges.27 Members of both the House and
Senate criticized NPS’s 2015 Rule for preempting State hunting regulations,
24 See 2015 Rule, 80 Fed. Reg. Id. at 64,327.
25 2020 Rule, 85 Fed. Reg. at 35,182.
26 Sec’y of Interior, Order No. 3347, Conservation Stewardship and Outdoor Recreation (2017);
Sec’y of Interior, Order No. 3356, Hunting, Fishing, Recreational Shooting, and Wildlife
Conservation Opportunities and Coordination with States, Tribes, and Territories (2017).
27 See 2020 Rule, 85 Fed. Reg. at 35,182.
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although repeal of that rule by way of the CRA was time-barred.28 	These
developments spurred NPS to reconsider the 2015 Rule.29
The 2020 Rule amends NPS regulations to permit the State’s authorized
hunting practices in the National Preserves of Alaska. 	NPS explained that the
2020 Rule “complements State regulations by more closely aligning harvest
opportunities in national preserves with harvest opportunities in surrounding
lands.”30 In the 2020 Rule, the agency determined that ANILCA “mandate[s]” that
NPS defer to “State laws, regulations, and management of hunting and trapping,
other than for subsistence uses by rural Alaska residents in national preserves[.]”31
In liberalizing the hunting practices permitted in National Preserves to
conform to State regulations, the agency also relied on harvest data that the State
of Alaska collected from 2012 through 2016. The agency concluded that the data
demonstrated that the State hunting regulations at issue in the 2015 and 2020 Rule
cause low levels of additional take.32 NPS analyzed this data, in addition to other
published studies, to conclude that “allowing the State regulations to apply within
National Preserves is not anticipated to cause population-level effects, and any
28 See 5 U.S.C. § 801(d) (time bar).
29 See 2020 Rule, 85 Fed. Reg. at 35,182.
30 2020 Rule, 85 Fed. Reg. at 35,182.
31 2020 Rule, 85 Fed. Reg. at 35,182.
32 See 2020 Rule, 85 Fed. Reg. at 35,183–84.
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reductions in opportunities for take of predator species over the long-term, or
increases in prey species, are expected to be minimal and localized.”33 Because
the agency determined that the 2020 Rule would be unlikely to impact predator
population levels, NPS concluded that the 2020 Rule complied with both the
Organic Act and ANILCA.34
The 2012 to 2016 data was not available when NPS promulgated the 2015
Rule.35 	Indeed, NPS acknowledged in 2015 that “[t]his rule is not based on
particular wildlife population levels, and did not require the preparation of data on
these levels.”36 Rather, the 2015 Rule stated that it was intended to reflect NPS’s
“responsibility to manage national preserves for natural processes, including
predator-prey relationships, and responds to practices that are intended to alter
those processes.”37
In the 2020 Rule, NPS emphasized that despite ceding to State hunting
regulations, the Federal government retained limited emergency management
authority. 	Specifically, NPS stated that it retained a “limited closure authority” to
“designate zones [in the national preserves of Alaska] where and periods when no
33 2020 Rule, 85 Fed. Reg. at 35,183.
34 2020 Rule, 85 Fed. Reg. at 35,183.
35 2020 Rule, 85 Fed. Reg. at 35,183.
36 2015 Rule, 80 Fed. Reg. at 64,334.
37 2015 Rule, 80 Fed. Reg. at 64,334.
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hunting, fishing, trapping, or entry may be permitted for reasons of public safety,
administration, floral and faunal protection, or public use and enjoyment.”38 	And
yet NPS repeatedly explained in the 2020 Rule that this closure authority was
limited to “specific, local closures if, when, and where necessary to prevent
unacceptable impacts.”39
In sum, in the 2020 Rule NPS explained that “having reconsidered its prior
position in light of specific mandates under ANILCA for Alaska preserves, revised
guidance, new information, and the impacts permitting these hunting methods on
national preserves in Alaska would have,” NPS ultimately concluded that the “2015
characterization of the harvest methods as conflicting with NPS laws and policies
was inconsistent with applicable law allowing hunting and trapping in national
preserves.”40
Plaintiffs filed this action seeking vacatur of the 2020 Rule on August 26,
2020.41 	The Court permitted Safari Club International, the Alaska Professional
Hunters Association, the Sportsmen’s Alliance Foundation, and the State of Alaska
to participate as Intervenor-Defendants.42
38 2020 Rule, 85 Fed. Reg. at 35,183 (quoting 16 U.S.C. § 3201).
39 Id. at 35,184.
40 Id. at 35,183–84.
41 See Docket 1; Docket 47 at 9, 26.
42 See Docket 14 (Order re: Mot. to Intervene); Docket 25 (Order re: Mot. to Intervene).
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Approximately 	two 	months 	after 	Plaintiffs 	filed 	their 	opening 	brief 	in
December 2021, the Assistant Secretary for Fish and Wildlife and Parks directed
NPS in a memorandum “to reassess the factual, legal, and policy conclusions that
underlie the 2020 Rule and to transmit, by June 1, 2022, a proposed rule to the
Office of Management and Budget for publication.”43 Federal Defendants sought
a stay of this proceeding until June 15, 2022, but the Court denied the requested
stay because Defendants stated that they simply intended to reassess the 2020
Rule, not necessarily to revise it, and also because of Defendants’ uncertain
timeline for determining whether to revise the 2020 Rule.44
On March 29, 2022, Federal Defendants asked the Court to remand the
challenged rule to NPS without vacatur because NPS “anticipate[d] publishing [a
proposed revisionary rule] in the Federal Register by October, followed by a final
rule in 2023” and that it would “propose at least significantly revising the 2020
rule.”45 The Court denied this motion without prejudice, but indicated that Federal
Defendants could renew their motion after a proposed rule had been published, at
which time the Court and parties could better assess the extent to which a
43 Docket 47 (Pls.’ Opening Br.); Docket 52 at 1 (Mem. from Assistant Sec’y for Fish & Wildlife &
Parks to Dir., Nat’l Park Serv. (Feb. 17, 2022)).
44 See Docket 50 at 2 (Defs.’ Mot. to Stay); Docket 61 at 11–14 (Order re Mot. to Stay).
45 Docket 64 at 2, 8–9 (Defs.’ Mot. to Remand).
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proposed new rule could render Plaintiffs’ claims “prudentially unripe.”46 To date,
no renewed motion to remand has been filed.
The merits briefing is now before the Court for determination.
JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
which confers jurisdiction on Federal courts to review agency action.47
LEGAL STANDARDS
Plaintiffs seek review of the 2020 Rule pursuant to the Administrative
Procedure Act (APA), 5 U.S.C. § 551 et seq.48 	Section 706 of the APA provides
that a “reviewing court shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law . . . [or] in excess of statutory
jurisdiction, authority, or limitations.”49
46 Docket 80 at 8–9 (Order re Mot. to Remand).
47 Califano v. Sanders, 430 U.S. 99, 105 (1977).
48 Plaintiffs filed a Motion for Summary Judgment, which is an appropriate mechanism to seek
review of an agency action. See Occidental Eng’g Co. v. I.N.S., 753 F.3d 766, 769 (9th Cir.
1985); Triumvirate, LLC v. Bernhardt, 367 F. Supp. 3d 1011, 1021 (D. Alaska 2019). But see L.
Civ. R. 16.3.
49 5 U.S.C. § 706(2).
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The Ninth Circuit has detailed the circumstances under which an agency
action is arbitrary and capricious:
[An] agency rule would be 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 explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.50
By contrast, an agency action is proper if “the agency considered the relevant
factors and articulated a rational connection between the facts found and the
choices made.”51 When determining whether an action is arbitrary and capricious,
“a court is not to substitute its judgment for that of the agency,”52 particularly when
“the challenged decision implicates substantial agency expertise.”53
When an agency action is based on factual conclusions drawn from the
administrative 	record, 	a 	reviewing 	court 	must 	determine 	whether 	those
conclusions are supported by “substantial evidence.”54 	“‘Substantial evidence’ is
50 Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1067 (9th Cir. 2018) (quoting Greater
Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011)).
51 Id. (quoting Greater Yellowstone Coal., 665 F.3d at 1023).
52 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(hereinafter “State Farm”).
53 Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000).
54 Ctr. for Biological Diversity, 900 F.3d at 1068; see also Dickinson v. Zurko, 527 U.S. 150,
163–64 (1999).
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‘more than a mere scintilla but less than a preponderance.’”55 	This standard is
“extremely deferential,” requiring the reviewing court to “uphold the [agency’s]
findings unless the evidence presented would compel a reasonable finder of fact
to reach a contrary result.”56
Agency action is “not in accordance with the law” when it “conflict[s] with the
language of the statute.”57 	This entails “a question of statutory interpretation,
rather than an assessment of reasonableness in the instant case.”58
The Supreme Court addressed what the APA requires when an agency
changes its policy in FCC v. Fox Television Stations, Inc.59 	Per Fox, “a policy
change complies with the APA if the agency (1) displays ‘awareness that it is
changing position,’ (2) shows that ‘the new policy is permissible under the statute,’
(3) ‘believes’ the new policy is better, and (4) provides ‘good reasons’ for the new
policy, which, if the ‘new policy rests upon factual findings that contradict those
which underlay its prior policy,’ must include ‘a reasoned explanation . . . for
55 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (quoting Sandgathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997)).
56 Monjaraz-Munoz v. I.N.S., 327 F.3d 892, 895 (9th Cir. 2003) (quoting Singh-Kaur v. I.N.S.,
183 F.3d 1147, 1149–50 (9th Cir. 1999)).
57 Nw. Env’t Advocs. v. U.S. Env’t Prot. Agency, 537 F.3d 1006, 1014 (9th Cir. 2008) (quoting
City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007)).
58 Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw. Env’t Advocs., 537 F.3d at
1014).
59 556 U.S. 502 (2009).
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disregarding facts and circumstances that underlay or were engendered by the
prior policy.’”60
DISCUSSION
Plaintiffs assert that NPS violated the Organic Act, ANILCA, the CRA, and
the APA by revoking the 2015 Rule that had prohibited certain hunting practices in
National Preserves in Alaska, otherwise permitted by the State of Alaska, that are
intended 	to 	reduce 	predator 	populations 	and 	increase 	human 	harvest 	of
ungulates.61
Plaintiffs’ key contention is that Federal law requires NPS to manage
Federal 	lands 	in 	Alaska 	to 	preserve 	natural ecosystems, and 	that predator
reduction efforts conflict with this Federal mandate by altering the natural predator-
prey dynamics that are associated with natural ecological processes.62 The NPS
in 2020, however, relied on new harvest data and other published studies to
conclude that the State’s hunting regulations have resulted in low levels of
additional take of predator species. 	Because the Court finds that substantial
evidence 	in 	the 	record 	supports 	this 	conclusion, 	NPS 	was 	not 	arbitrary 	or
60 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (quoting Fox,
556 U.S. at 515–16 (emphasis omitted)).
61 See Docket 47 at 9. Ungulate, Merriam-Webster,
http://www.merriam-webster.com/dictionary/ungulate (last visited Sept. 12, 2022) (defining
“ungulate” as “a hoofed typically herbivorous quadruped mammal“).
62 See Docket 47 at 26–27.
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capricious in its determination that the State’s hunting practices previously barred
by the 2015 Rule would “not threaten impairment of park resources under the
Organic Act or the maintenance of healthy populations under ANILCA.”63
However, Plaintiffs do identify several errors in the promulgation of the 2020
Rule as discussed herein. 	First, NPS significantly understated its statutory
authority to regulate hunting in National Preserves in Alaska by containing it to a
“limited closure authority.”64 Rather, ANILCA vests the Department of Interior with
plenary authority to protect the national interest in Federal public lands, which
includes the maintenance of sound populations of wildlife.65 	Second, NPS
incorrectly “equated State sustained yield management with ANILCA’s direction to
maintain sound populations of wildlife and the Service’s Management Policy that
requires management ‘for self-sustaining populations’” in a manner that is arbitrary
and capricious.66 	And third, in the 2020 Rule NPS failed to comply with the
requirements set forth in Fox with respect to its change of position from 2015 on
bear baiting.
63 2020 Rule, 85 Fed. Reg. at 35,183.
64 2020 Rule, 85 Fed. Reg. at 35,182; 35,184; 35,187.
65 See 16 U.S.C. § 3101(b).
66 Docket 47 at 36.
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I. 	Predator Reduction Efforts in National Preserves
a. NPS Statutory Mandates
Plaintiffs assert that the Organic Act and ANILCA preclude NPS from
allowing any predator reduction efforts in National Preserves in Alaska.
“[T]he 	first step 	in interpreting 	a statute 	‘is 	to determine 	whether the
language at issue has a plain and unambiguous meaning with regard to the
particular dispute in the case.’”67 	Absent a statutory definition, “a statutory term
receives its ‘ordinary, contemporary, common meaning.’”68 	Often, interpreting a
statutory term “requires ‘examin[ing] not only the specific provision at issue, but
also the structure of the statute as a whole, including its object and policy.’”69 	If
the plain text of the statute is unambiguous, “that meaning controls.”70 If, however,
the statutory text is ambiguous, legislative history may be consulted in determining
the text’s meaning.71
67 United States v. Kollman, 774, F.3d 592, 596 (9th Cir. 2014) (quoting Texaco Inc. v. United
States, 528 F.3d 703, 707 (9th Cir. 2008)).
68 United States v. Lopez, 998 F.3d 431, 435 (9th Cir. 2021) (quoting Perrin v. United States,
444 U.S. 37, 42 (1979)).
69 Wilson v. C.I.R., 705 F.3d 980, 988 (9th Cir. 2013) (alteration in original) (quoting Children’s
Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999)).
70 Id.
71 See id. (citing United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999)).
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As a preliminary matter, Plaintiffs do not follow these principles of statutory
interpretation to advance their argument that the 2020 Rule’s elimination of the
prohibition on predator reduction efforts violates the Organic Act and ANILCA.
Plaintiffs acknowledge that neither law expressly precludes predator reduction
efforts.72 	Plaintiffs instead take a holistic approach to statutory interpretation,
pointing to numerous provisions of the Organic Act and ANILCA to contend that
the 2020 Rule violates the entire statutory scheme. Plaintiffs also rely extensively
on the legislative history of ANILCA without identifying any ambiguous statutory
text that would warrant the use of the legislative history.73 With this backdrop, the
Court begins its inquiry with the statutory text of the Organic Act and ANILCA.
The Organic Act provides that NPS “shall promote and regulate the use of
the National Park System . . . to conserve the scenery, natural and historic objects,
and wild life . . . by such means as will leave them unimpaired for the enjoyment
of future generations.”74 	Indeed, the Ninth Circuit has explained that Congress
intended for “resource protection [to be] the overarching concern” of the Organic
72 Docket 101 at 8:14–8:24 (Tr. of Oral Arg.) (Court: “[I]f you could point me to the precise language
in ANILCA and/or the Organic Act that you are maintaining this rule violates?; Plaintiffs: “[T]here’s
not a single statutory phrase . . . . [t]he Service relied on the entire scheme and language from
throughout ANILCA.”).
73 See Docket 47 at 27–30. See Wilson, 705 F.3d at 988 (“If the statutory language is
ambiguous, then we consult legislative history.”).
74 54 U.S.C. § 100101(a).
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Act.75 ANILCA provides that the National Preserves in Alaska are also subject to
the Organic Act.76 	Hunting is permitted on NPS-managed lands only if it is
“specifically mandated by Federal statutory law.”77 ANILCA is such a Federal law
that expressly permits hunting on National Preserves in Alaska, but ANILCA also
requires “the maintenance of sound populations of, and habitat for, wildlife species
of inestimable value.”78 	At first blush, these broad statements of purpose lend
support to Plaintiffs’ contention that NPS must protect natural predator-prey
dynamics 	to 	conserve 	wildlife,79 	protect 	resources,80 	and 	maintain 	wildlife
populations.81
ANILCA also provides, however, that in the National Preserves of Alaska,
“the taking of fish and wildlife for sport purposes and subsistence uses, and
trapping shall be allowed under applicable State and Federal law and regulation.”82
Sport and subsistence hunting, by their very nature, have the potential to alter
75 Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1453 (9th Cir. 1996).
76 16 U.S.C. § 3201.
77 36 C.F.R. § 2.2(b) (2022).
78 16 U.S.C. § 3101(b); 16 U.S.C. § 3201 (permitting hunting).
79 See 54 U.S.C. § 100101(a).
80 See Bicycle Trails Council of Marin, 82 F.3d at 1453.
81 See 16 U.S.C. § 3101(b).
82 16 U.S.C. § 3201.
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natural predator-prey populations levels. And the Organic Act recognizes that the
manipulation of natural wildlife populations may sometimes be necessary, as it
authorizes “the destruction of such animals and plant life as may be detrimental to
the use of any System unit.”83
Accordingly, 	NPS 	is 	subject 	to 	two 	sometimes 	conflicting 	statutory
mandates, 	requiring 	NPS 	to 	manage 	National 	Preserves 	in 	Alaska 	both 	to
conserve and 	protect wildlife and 	to 	permit hunting. 	The 	Court must give
considerable weight to how NPS construes this statutory scheme to strike the
appropriate balance between these mandates.84
Plaintiffs 	contend 	that 	predator 	reduction 	efforts 	are 	prohibited 	in 	the
National Preserves of Alaska by the statutory scheme created by the Organic Act
and ANILCA because these statutes require NPS to regulate hunting in a manner
that protects the natural systems of wildlife populations. 	According to Plaintiffs,
predator reduction efforts defy nature by artificially reducing population levels of
predators and inflating the number of prey to benefit hunters.85
Defendant-Intervenors respond that “[t]he statutory provisions that Plaintiffs
cite from ANILCA and the Organic Act are general in nature; the provisions require
83 54 U.S.C. § 100752.
84 See Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844 (1984).
85 See Docket 47 at 26–30.
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the conservation of species and habitat, but not in the specific way Plaintiffs
advocate.”86 	Defendant-Intervenors point out that these laws require NPS to
protect habitat and populations, but do not compel NPS to preempt State hunting
rules.87
To support their argument that predator reduction efforts are prohibited in
the National Preserves of Alaska, Plaintiffs point to the Organic Act’s requirement
“to 	regulate 	uses 	of 	the 	National 	Park 	System—such 	as 	sport 	hunting 	in
Preserves—to 	conserve 	and 	provide 	wildlife 	‘for 	the 	enjoyment 	of 	future
generations.’”88 	Plaintiffs further rely on ANILCA’s requirement that NPS must
“protect sound populations of wildlife.”89
However, these general statements of policy do not expressly prohibit
predator reduction efforts in the National Preserves of Alaska. 	Rather, the two
statutes direct NPS to allow hunting in a manner that maintains sound populations
of wildlife. To decide whether predator reduction efforts are permissible, NPS must
determine whether these hunting practices will prevent the maintenance of sound
populations of wildlife. As discussed below, NPS considered this precise question
in the 2020 rulemaking and concluded that the State’s hunting practices would not
86 Docket 81 at 17–21.
87 See Docket 81 at 17–21.
88 Docket 47 at 27.
89 Docket 47 at 28.
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prevent 	the 	maintenance 	of 	sound 	populations 	of 	wildlife 	in 	the 	National
Preserves.90
Plaintiffs further maintain that ANILCA expressly requires the preservation
of 	“undisturbed 	ecosystems,” 	which 	is 	inconsistent 	with 	predator 	reduction
efforts.91 	But Plaintiffs cite this provision out of context. 	The full statutory clause
provides that ANILCA is intended “to maintain opportunities for scientific research
and 	undisturbed 	ecosystems.”92 	ANILCA 	does 	not 	require 	that 	the 	entire
ecosystem of the National Preserves in Alaska remain undisturbed.
Plaintiffs 	also 	cite 	to 	provisions 	in 	Section 	410hh 	of 	ANILCA, 	where
Congress established the various units of the National Park System in Alaska.93
For example, Congress provided that the Bering Land Bridge National Preserve
should be managed “to protect habitat for, and populations of, fish and wildlife
including, but not limited to, marine mammals, brown/grizzly bears, moose, and
wolves.”94 Congress also directed NPS “to protect natural processes and maintain
90 See discussion infra Part I.b; 2020 Rule, 85 Fed. Reg. at 35,183 (NPS concluded that “under
[the 2020 Rule], for the foreseeable future, healthy populations of wildlife will continue to exist in
a manner consistent with the range of natural variability” such that “the potential effect of the
harvest practices does not threaten impairment of park resources under the Organic Act or the
maintenance of healthy populations under ANILCA.”).
91 Docket 47 at 10; Docket 83 at 12 n.20 (citing 16 U.S.C. § 3101(b)).
92 16 U.S.C. § 3101(b) (emphasis added).
93 See Docket 47 at 11, 28 (citing 16 U.S.C. § 410hh).
94 16 U.S.C. § 410hh(2).
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environmental integrity” in three units of the National Park System in Alaska.95
Plaintiffs maintain that these provisions require NPS to preserve natural processes
and to protect wolf and bear populations and habitats throughout the National
Preserves of Alaska.96
Only in Kenai Fjords National Park, however, does Congress require the
protection of natural systems of certain wildlife populations, providing that NPS
“protect seals, sea lions, other marine mammals, and marine and other birds and
to maintain their hauling and breeding areas in their natural state, free of human
activity which is disruptive to their natural processes.”97 By contrast, Congress did
not require that predator species be protected from disruptive human activity
throughout the National Preserves.98 Rather, Congress emphasized that hunting
“shall be permitted” in the National Preserves established in Section 410hh of
ANILCA.99 	Accordingly, Section 410hh of ANILCA does not support Plaintiffs’
95 Docket 47 at 27 (citing 16 U.S.C. § 401hh(1), (8)(a), (10)).
96 See Docket 47 at 27 (citing 16 U.S.C. § 410hh(1), (2), (4)(a), (6), (7)(a), (8)(a), (9), (10) & hh-
1(2), hh-1(3)(a)).
97 16 U.S.C. § 410hh(5).
98 See e.g., 16 U.S.C. § 410hh(6) (“to protect habitat for, and populations of, fish and wildlife
including but not limited to caribou, moose, black and grizzly bears, wolves, and waterfowl”).
99 16 U.S.C. § 410hh-2.
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argument 	that 	ANILCA 	prohibits 	predator 	reduction 	efforts 	in 	National
Preserves.100
The Court concludes that the plain text of the Organic Act and ANILCA
demonstrates that predator reduction efforts are permissible in the National
Preserves of Alaska, provided that these efforts do not impair the wildlife resources
under the Organic Act or the maintenance of healthy populations under ANILCA.101
Congress expressly permits hunting in the National Preserves of Alaska.102 	And
Congress 	envisioned 	that 	the 	“destruction 	of 	animals” 	would 	sometimes 	be
necessary to manage the park systems in the event that “such animals . . . [are]
detrimental to the use of any System unit.”103 	Moreover, Congress only requires
that there are “opportunities” for “undisturbed ecosystems” in the Federal lands in
Alaska.104 	These statutory mandates taken together show that NPS can permit
predator reduction efforts in the National Preserves of Alaska provided that the
agency 	strikes 	the 	proper 	balance 	between 	hunting 	and 	wildlife 	population
protection.
100 See 16 U.S.C. § 410hh(1), (2), (4)(a), (6), (7)(a), (8)(a), (9), (10) & hh-1(2), hh-1(3)(a).
101 See 54 U.S.C. § 100101(a); 16 U.S.C. § 3101(b).
102 See 16 U.S.C. § 3201.
103 54 U.S.C. § 100752.
104 16 U.S.C. § 3101.
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Although Plaintiffs do not identify any ambiguity in these statutes, this Court
will assume that the statutes are ambiguous on whether predator reduction efforts
are permitted so as to permit the Court’s consideration of legislative history.105
Plaintiffs rely extensively on the legislative history of ANILCA, including a report to
accompany the statute that was prepared by the Senate Committee on Energy
and Natural Resources (Committee) in 1979.106 A committee report is considered
an “authoritative source for finding the Legislature’s intent” and “more authoritative”
than statements from the floor debates.107 And yet, committee reports have been
criticized as “frail substitutes for bicameral votes upon the text of a law and its
presentment to the President.”108
The Committee’s report states that “[i]t is contrary to the National Park
System 	concept 	to 	manipulate 	habitat 	or 	populations 	to 	achieve 	maximum
utilization of natural resources.”109 The Committee further advised that NPS must
“maintain the natural abundance, behavior, diversity, and ecological integrity of
native animals as part of their ecosystem” and “insure that consumptive uses of
105 See Wilson, 705 F.3d at 988 (citing United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.
1999).
106 See S. Rep. No. 96-413.
107 Garcia v. United States, 469 U.S. 70, 76 (1984).
108 Thompson v. Thompson, 484 U.S. 174, 191–92 (Scalia, J., concurring).
109 S. Rep. No. 96-413, at 171.
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fish and wildlife populations within national park service units not be allowed to
adversely disrupt the natural balance.”110 	The Committee report further provides
that “[i]n the face of uncertainty, Congress intended the Service to err on the side
of wildlife protection.”111
Plaintiffs do not acknowledge, however, that these statements were made
in the context of the decision to permit subsistence hunting in National Parks,
Monuments, Preserves, and National Recreational Areas in Alaska, whereas the
2020 Rule addresses non-subsistence hunting in National Preserves in Alaska.112
The Committee explained that when ANILCA was drafted, “subsistence uses by
local rural residents have been, and are now, a natural part of the ecosystem
serving as a primary consumer in the natural food chain.”113 	It appears the
Committee sought to preclude an expansion of subsistence hunting across all of
these Federal lands in Alaska beyond what the Committee considered to be
“natural” in 1980.114 	That the Committee sought to impose certain standards on
110 S. Rep. No. 96-413, at 171.
111 Docket 47 at 29 (quoting S. Rep. No. 96-413, at 233 (“The greater the ignorance of the
resource parameters, particularly of the ability and capacity of a population or species to
respond to change in its ecosystem, the greater the safety factor must be.”)).
112 See S. Rep. No. 96-413, at 171 (“In authorizing subsistence uses within National Parks,
Monuments, Preserves, and National Recreational Areas, it is the intent of the Committee that
certain traditional National Park Service management values be maintained.”).
113 S. Rep. No. 96-413, at 171.
114 See S. Rep. No. 96-413, at 168–71.
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subsistence hunting on a broad range of Federal lands in Alaska does not directly
inform on Congress’ intent with respect to the regulation of non-subsistence
hunting in the more limited context of National Preserves.
Plaintiffs also do not address that the Committee anticipated that NPS would
need 	to 	engage 	in 	some 	degree 	of 	manipulation 	of 	natural 	ecosystems 	to
effectively regulate subsistence hunting on Federal lands. 	For example, the
Committee’s report provides that “the policies and legal authorities of the managing
agencies will determine the nature and degree of management programs affecting
ecological 	relationships, 	population 	dynamics, 	and 	manipulation 	of 	the
components of the ecosystem.”115 	This statement indicates that the Committee
did not intend to completely protect animal populations from human manipulation.
In sum, the legislative history does not support interpreting either the
Organic Act or ANILCA to prohibit predator reduction efforts in the National
Preserves of Alaska.
b. Findings of Fact
Plaintiffs’ arguments with respect to the invalidity of the 2020 Rule are all
premised on the following factual assertion: that the State hunting regulations
permitted by the 2020 Rule are intended to and have the potential to manipulate
115 S. Rep. No. 96-413 at 233.
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wildlife populations in a manner that disrupts the natural abundance of that wildlife
in the National Preserves.116 	But the Court finds that substantial evidence in the
record as a whole supports NPS’s finding that the contested State hunting
regulations have not and do not have the potential of disrupting the natural
abundance of the predator and prey populations in the National Preserves.
In the 2020 Rule, NPS relies on new evidence in the record showing that
regardless of the State’s intent, the hunting practices at issue would not alter the
predator and prey populations in the National Preserves. NPS stated that:
Similar 	to 	its 	findings 	in 	2015, 	the 	[Environmental 	Assessment]
concludes that under this rule, for the foreseeable future, healthy
populations of wildlife will continue to exist in a manner consistent with
the range of natural variability. This conclusion is based upon the low
levels of additional take that are anticipated to occur under this rule.
The NPS’s findings regarding low levels of additional take are based
upon harvest data from 2012–2016 that were not available to the NPS
when it promulgated the 2015 Rule.117
By contrast, when NPS decided to prohibit predator reduction efforts in 2015, the
agency did not rely on any wildlife population data that would show the impact that
application 	of 	the 	State 	hunting 	regulations 	would 	have 	on 	predator-prey
populations. 	In 2015, NPS instead relied on its policy expertise and legal
analysis.118 It is well established that an agency need not rely on empirical data to
116 See Docket 47 at 27–30.
117 2020 Rule, 85 Fed. Reg. at 35,183.
118 See 2015 Rule, 80 Fed. Reg. at 64,334.
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promulgate a rule.119 	However, it makes sense that NPS might draw different
conclusions in the face of the new data it had received.
From 2012 through 2016, the State documented the number of animals
harvested in parts of Alaska controlled by State hunting regulations.120 	For
example, the State calculated that the extended hunting season for wolves
resulted in an increase of approximately 11 wolves reported taken per year from
2012 to 2016 in geographic units that overlap with National Preserves. 	Similarly,
the State data showed that the State’s black bear hunting regulations caused low
levels of additional take. 	Of the 2,300 black bears reported harvested from 2012
through 2016, approximately 34 bears per year were reported taken over bait in
the geographic units overlapping National Preserves. And from 2012 to 2016, the
State issued nine permits per year for the use of dogs to hunt black bears in
geographic units overlapping with National Preserves.121
In 2020, NPS also had access to more data with respect to the impact of
bear baiting practices on brown bears. 	Approximately 57 brown bears per year
119 See Safari Club Int’l v. Haaland, 31 F.4th 1157, 1173 (9th Cir. 2022) (citing Sacora v.
Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010)).
120 See discussion infra pp. 36–38 (NPS does not have any population data to which to compare
the harvest data, but the agency nonetheless routinely relies on harvest data to anticipate the
impact of State hunting regulations on populations because of the difficulty and cost associated
with collecting population data).
121 See Docket 85-2 at 152-53, 155.
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were reported harvested from 2012 to 2016 in geographic areas where bear baiting
was then allowed that overlap with National Preserves. The State also conducted
a preliminary analysis of the impact of liberalized brown bear hunting practices and
found no effect on moose populations.122 NPS considered some contrary evidence
as well. 	For example, a study of brown bear baiting on the Kenai Peninsula
showed substantial increases in the take of brown bears. 	In 2014, the reported
percentage of brown bears that were taken over bait was 77%; in 2015, it was
89%; and in 2016, it was 83%. NPS explained that this study is not representative
of the impact of bear baiting in National Preserves because, with the exception of
portions of Wrangell-St. Elias, the National Preserves are more remote and difficult
to access than the Kenai Peninsula.123 	It is reasonable for NPS to draw this
distinction because, as the Ninth Circuit recently recognized, the Kenai Refuge “is
close to major population centers and highly accessible.”124 	NPS concluded that
“[b]ecause 	baiting 	on 	most 	national 	preserves 	would 	be 	more 	difficult, 	the
percentage of brown bears taken over bait under the proposed action is expected
to be lower than the percentage reported . . . on the Kenai.”125
122 Docket 85-2 at 152 (“The department has looked at cow:calf ratios in numerous areas where
brown bear seasons have been liberalized and concluded that increased bear harvest had no
effect on survival of moose neonates.”).
123 See Docket 85-2 at 152–53.
124 Safari Club Int’l, 31 F.4th at 1175 (citing 81 Fed. Reg. 27,038–39).
125 Docket 85-2 at 153.
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In addition to the State harvest data, NPS also explained that its conclusion
that the State hunting regulations at issue in the 2020 Rule together result in a low
level 	of 	additional 	take 	of predator 	species 	is 	consistent with 	the 	agency’s
determination in 2015. 126 It points to the NPS’s “Finding of No Significant Impact”
for the 2015 Rule, “which noted that neither of its alternatives was ‘likely to have a
significant 	effect 	on 	park 	resources.’”127 	NPS 	has 	therefore 	consistently
determined that the State hunting regulations at issue in both the 2015 and 2020
Rules do not have a significant impact on wildlife populations in the National
Preserves of Alaska.
In reliance on this evidence, NPS ultimately decided that “population-level
effects that would alter the natural processes listed are unlikely.”128 That decision
is based on substantial evidence in the record. Without the underlying conclusion
of fact that the State hunting regulations adversely impact natural population levels
in the National Preserves, Plaintiffs’ arguments that the 2020 Rule violates Federal
126 See 2020 Rule, 85 Fed. Reg. at 35,189.
127 2020 Rule, 85 Fed. Reg. at 35,189; Nat’l Park Serv., Finding of No Significant Impact Wildlife
Harvest on National Park System Preserves in Alaska 10 (2015) (“The [Environmental
Assessment] evaluation shows that neither the proposed action nor the no-action alternative is
likely to have a significant effect on park resources.”); Nat’l Park Serv., Wildlife Harvest On
National Park System Preserves In Alaska Environmental Assessment 5 (2014) (Alternatives
considered in the Environmental Assessment for the 2015 Rule were (A) No Action (Adopt All
State of Alaska Wildlife Harvest Regulations) and (B) Promulgate NPS Wildlife Harvest
Regulations in Alaska).
128 2020 Rule, 85 Fed. Reg. at 35,189.
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law ring hollow. 	Plaintiffs nonetheless challenge NPS’s conclusion of fact in the
2020 Rule that the State hunting regulations will cause low additional take of
predatory species in four different ways.129
First, Plaintiffs contend that NPS “arbitrarily assumed that if populations
remain 	static, 	impacts 	to 	natural 	processes, 	including 	behaviors, 	will 	be
minimal.”130 	Plaintiffs point to a study in the administrative record that looks
beyond the population effects of hunting by documenting the impact that the
human harvest of wolves has on the social dynamics on wolf packs.131 But Federal
law does not require NPS to manage Federal lands so as to protect wildlife from
these changes to their natural behaviors. 	Instead, the Organic Act and ANILCA
require NPS to conserve wildlife and maintain wildlife populations.132 	Moreover,
Plaintiffs’ arguments are directly contradicted by ANILCA because Congress
expressly allows hunting on National Preserves.133 In doing so, Congress clearly
did not intend to protect wildlife from unnatural human influence as hunting is
129 See Docket 47 at 45–51.
130 Id. at 46.
131 See Docket 85-3 at 18 (citing Linda Y. Rutledge et al., Protection from Harvesting Restores
the Natural Social Structure of Eastern Wolf Packs, 143 Biological Conservation 332 (2010)).
132 See 54 U.S.C. § 100101(a); 16 U.S.C. § 3101(b).
133 See 16 U.S.C. § 3202(c)(1).
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intended to end an animal’s natural life and, as this study shows, can impact their
social dynamics.
Second, Plaintiffs assert that “the Service found, but failed to acknowledge,
that the specific practices allowed by the 2020 Rule have the potential to alter
predator-prey dynamics on the Preserves.”134 Indeed, NPS acknowledged in the
Environmental Assessment (EA) that “[i]ncreased take of predator species could
reduce abundance of bears and wolves or increase abundance of prey in localized
areas.”135 	But the inquiry did not end there. 	NPS explains that after reviewing
relevant studies and data, including the State’s new population data, “meaningful
population-level effects on predator or prey species are not expected.”136 ANILCA
directs NPS to maintain wildlife populations, but does not prohibit any localized
impacts of hunting, so NPS did not err by according more weight to the population
data.137
134 Docket 47 at 46.
135 Docket 85-2 at 152 (Nat’l Park Serv., Sport Hunting and Trapping in National Preserves in
Alaska Revised Environmental Assessment (2019) (Environmental Assessment for the 2020
Rule concludes that “Increased take of predator species could reduce abundance of bears and
wolves or increase abundance of prey in localized areas. However, based on a review of
relevant studies, data, and other information including input from the Alaska Department of Fish
and Game (ADFG), meaningful population-level effects on predator or prey species are not
expected.”)).
136 Docket 85-2 at 152.
137 See 16 U.S.C. §§ 3101(b), 3202(c)(1).
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Third, Plaintiffs maintain that NPS “failed to support its conclusion that even
low levels of additional take would ensure its continued compliance with statutory
mandates,” especially because, according to Plaintiffs, NPS defines “low levels” of
harvest 	to 	be 	“less 	than 	40%” 	of 	the 	total 	population.138 	But 	Plaintiffs
mischaracterize the record when they claim that NPS defined low levels of take to
mean less than a 40% reduction in predator populations.139 	Instead, NPS
acknowledged a study of the effects of hunting on wolf populations suggesting that
wolf numbers decline when hunting take exceeds 40% of the wolf population.140
NPS observed that “[s]ince preserves are generally remote and access is limited,
the level of take on preserves under the proposed action is expected to be much
less than 40% of predator populations.”141 Indeed, the State harvest data showed
that the extended hunting season for wolves resulted in an increase of only
approximately 11 wolves reported taken per year.142 NPS’s discussion of the wolf
study did not establish a 40% threshold below which impacts were considered to
be low.
138 Docket 47 at 39–41.
139 See Docket 47 at 40; Docket 101 at 13:16–14:13; 27:9–27:25.
140 See Docket 85-2 at 152 (“[E]stimates of the effects of [hunting] harvest on the wolf population
were that wolf numbers were reduced following two years when the harvest exceeded 40% but
that wolf numbers increased the following year when the harvest was less than 35%.”).
141 Docket 85-2 at 152.
142 See Docket 85-2 at 152.
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Fourth, Plaintiffs challenge the reliability of the data upon which NPS relied.
Plaintiffs point out that the State’s harvest data does not have any context because
NPS lacks population data to which to compare that data.143 Plaintiffs also contend
that NPS erred by relying on data that is not specific to the National Preserves
because the preserves are “world-renowned destinations” and it is unreasonable
to assume that they will attract the same number of hunters as the lesser-known
areas studied.144 	Plaintiffs further maintain that the State’s data is inadequate
because the State has “largely abandoned” its monitoring efforts.145
NPS explained that the data necessary to evaluate the impacts of hunting
regulations on predator-prey populations is difficult and costly to obtain. NPS also
acknowledged the limits of the data it relied on, including the fact that the data is
inconsistently collected and that the National Preserves comprise less than 11%
of the land areas studied. 	Although this data may be less than ideal, NPS
explained that the agency routinely evaluates historical harvest data, like the
agency 	did 	in 	the 	2020 	rulemaking, 	to 	assess 	the 	likely 	impacts 	of 	State
regulations.146
143 See Docket 47 at 50.
144 Docket 47 at 47.
145 Docket 47 at 50, n.193.
146 See 2020 Rule 85 Fed. Reg. at 35,189.
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The Ninth Circuit has held that “[i]n such a situation, where the record is
devoid of pre-existing studies to clarify the impact of policies on threatened animal
species, the default rule is to rely on a specialized Federal agency’s presumptive
expertise in the subject.”147 	The Court must be especially deferential when the
agency “is making predictions, within its area of special expertise, at the frontiers
of science.”148 In light of this deference due, NPS’s conclusion from the available
data that the 2020 Rule will result in low levels of additional take such that NPS
will continue to fulfill its statutory duty to “conserve . . . wild life”149 and “maintain[]
. . . sound populations of . . . wildlife species of inestimable value”150 is not “so
implausible that it could not be ascribed to a difference in view or the product of
agency expertise.”151
In sum, substantial evidence in the record supports the agency’s finding in
the 2020 Rule that the State’s hunting regulations, including predator reduction
efforts, will not adversely impact wildlife populations in the National Preserves.
147 Safari Club Int’l, 31 F.4th at 1174.
148 Balt. Gas and Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 103 (1983).
149 54 U.S.C. § 100101(a).
150 16 U.S.C. § 3101(b).
151 State Farm, 463 U.S. at 43.
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c. Good Reasons
Plaintiffs also maintain that in the 2020 Rule, NPS changed its position on
predator reduction efforts without providing the “good reasons” for this new policy
that are required by the Supreme Court in the seminal case of FCC v. Fox
Television Stations.152 Specifically, Plaintiffs contend that NPS’s explanations are
inadequate 	because 	NPS 	impermissibly 	“elevated 	hunter 	opportunity 	and
consistency with State regulations above its obligation to regulate the System to
conserve wildlife and protect bears and wolves within almost all the Preserves.”153
The problem with Plaintiffs’ argument is that the new population data
provided by the State of Alaska shows that these State hunting regulations do not
have 	the 	effect 	of 	reducing 	predator 	populations 	and 	increasing 	prey
populations.154 	Because the 2020 Rule does not reduce predatory populations,
NPS is not prioritizing hunter opportunity or consistency with State law in a manner
that would violate NPS’ Federal mandates.
NPS 	provided 	many 	reasons 	for 	its 	decision 	to 	remove 	the 	predator
reduction efforts prohibition. 	For example, NPS explained that the 2020 Rule is
intended to “expand harvest opportunities.”155 	The State of Alaska submitted
152 Fox, 556 U.S. at 515-16.
153 Docket 47 at 40.
154 See 2020 Rule, 85 Fed. Reg. at 35,183; Docket 85-2 at 152–55.
155 2020 Rule, 85 Fed. Reg. at 35,189.
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comments in 2014 and 2018 stating that the intent of the State hunting regulations
is to increase hunter opportunity and not to decrease predator populations. 	The
State’s comments said that the State hunting regulations at issue in the 2020 Rule
“simply reflect the existence of an abundant population of wildlife and a small
segment of the public’s desire to hunt them that fit within the sustained yield
concept of scientific management Alaska follows.”156 	Moreover, the 2020 Rule
noted its consistency with hunting regulations at several national parks located in
the lower 48 states, where 25 national park units allow year-round coyote hunting,
six national park units permit the use of artificial light for hunting, seven national
park units allow hunting of black bears with dogs, and four national park units
permit bear baiting to harvest black bears.157 NPS further justified its decision by
explaining that the 2020 Rule “defer[red] to the State in regard to fish and wildlife
management.”158 	This decision is consistent with Secretary Zinke’s orders.159
NPS’ final justification was that the 2020 Rule “provid[es] regulatory certainty to
156 2020 Rule, 85 Fed. Reg. at 35,186. But see discussion infra at 40-41, finding that NPS erred
insofar as it determined that it was mandated to apply State hunting regulations in National
Preserves.
157 See 2020 Rule, 85 Fed. Reg. at 35,185.
158 2020 Rule, 85 Fed. Reg. at 35,189.
159 See Sec’y of Interior, Order No. 3347, Conservation Stewardship and Outdoor Recreation
(2017); Sec’y of Interior, Order No. 3356, Hunting, Fishing, Recreational Shooting, and Wildlife
Conservation Opportunities and Coordination with States, Tribes, and Territories (2017).
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park users about what hunting practices are or are not allowed in national
preserves.”160 Comments submitted during the 2020 rulemaking show that Alaska
residents were confused by the different hunting regulations in different land
categories 	and 	that 	their 	confusion 	would 	be 	alleviated 	if 	State 	and 	NPS
regulations were more consistent.161
To 	survive 	judicial 	review, 	NPS 	“need 	not 	demonstrate 	to 	a 	court’s
satisfaction that the reasons for the new policy are better than the reasons for the
old one.”162 Instead, “it suffices that the new policy is permissible under the statute,
that there are good reasons for it, and that the agency believes it to be better,
which the conscious change of course adequately indicates.”163 	Here, NPS
provided good reasons based on substantial evidence for its determination that the
State’s hunting regulations would not disrupt the abundance of predator wildlife in
the National Preserves in Alaska.164
II. 	Conflicts with Federal Law
160 2020 Rule, 85 Fed. Reg. at 35,189.
161 See 2020 Rule, 85 Fed. Reg. at 35,185–86.
162 Fox, 556 U.S. at 515.
163 Id.
164 But see infra Part III.
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Plaintiffs contend certain aspects of the 2020 Rule conflict with the Organic
Act, ANILCA, NPS Management Policies, and the CRA.
a. The Organic Act & ANILCA
Plaintiffs contend that NPS ignored its directives under the Organic Act and
ANILCA by reading the latter “as mandating deference to ‘State laws, regulations,
and management of hunting and trapping’ in the Preserves” and reserving for NPS
only a “limited closure authority.”165 	Plaintiffs maintain that NPS has effectively
absolved itself of its duty to regulate hunting in violation of the Organic Act’s and
ANILCA’s statutory mandates.166
The Circuit recently clarified the relationship between State and Federal
hunting regulations on Federal lands in Alaska, “hold[ing] that ANILCA preserves
the federal government’s plenary power over public lands in Alaska.”167 	This is
because Congress maintains authority by way of the Property Clause of the
Constitution to regulate and protect wildlife on Federal land.168 	The Supremacy
165 Docket 47 at 25–26.
166 See Docket 47 at 25–26.
167 Safari Club Int’l, 31 F.4th at 1165.
168 See id. at 1168 (citing Ctr. for Biological Div. v. Bernhardt, 946 F.3d 553, 558 (9th Cir. 2019)
and Kleppe v. N.M., 426 U.S. 529, 541 (1976)).
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Clause requires that Federal hunting regulations override conflicting State laws in
accordance with the principle of conflict preemption.169
NPS’s explanation of its authority under ANILCA in the 2020 Rule suffers
from two errors. 	First, NPS stated that ANILCA mandates deference to the
State.170 	But 	the 	Circuit 	reached 	the 	opposite 	conclusion, 	holding 	that 	“the
Department of Interior need not defer to the State’s hunting regulations.”171 More
specifically, NPS found that it had to defer to the State to define harvest methods
and means.172 	But the Circuit has since explicitly rejected the argument that the
Federal government “cannot limit the means, method, or scope of hunting on
federal lands in Alaska.”173 	Relatedly, NPS incorrectly cabined its authority to a
“limited closure authority.”174 	But the Circuit explained that “ANILCA vests the
Secretary of the Interior with plenary authority ‘to protect—if need be, through
169 See id. (citing Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 854 (9th Cir. 2002) and
Bernhardt, 946 F.3d at 558 (9th Cir. 2019).
170 See 2020 Rule, 85 Fed. Reg. at 35,182 (“As mandated by the Alaska National Interest
Conservation Act of 1980 . . . the NPS has consistently deferred to State laws, regulations, and
management of hunting and trapping . . . in national preserves since their establishment in
1980.”).
171 Safari Club Int’l, 31 F.4th at 1168.
172 See 2020 Rule, 85 Fed. Reg. at 35,184 (“ANILCA does not address specific harvest
methods; rather it defers to State fish and game management to establish methods and means
. . . .”).
173 Safari Club Int’l, 31 F.4th at 1167.
174 2020 Rule, 85 Fed. Reg. at 35,182.
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expansive regulation—‘the national interest in the . . . environmental values on the
public lands’” which, in Alaska, includes “maintaining ‘sound populations of []
wildlife species of inestimable value.’”175 	In sum, NPS incorrectly described its
authority to regulate hunting on Federal lands in Alaska as limited and deferential
to the State, but the Circuit has since held that the Federal government maintains
plenary power over these lands and the authority to preempt conflicting State
law.176
b. NPS Management Policies
Plaintiffs 	maintain 	that 	the 	2020 	Rule 	violates 	the 	NPS 	Management
Policies. 	These Management Policies expressly provide that NPS “does not
engage in activities to reduce the numbers of native species for the purpose of
increasing the numbers of harvested species (i.e., predator control), nor does the
Service permit others to do so on lands managed by the National Park Service.”177
However, 	the 	2020 	Rule 	does 	not 	conflict 	with 	the 	Management 	Policies’
prohibition of predator reduction efforts because substantial evidence supports
NPS’s finding that the State hunting regulations at issue in this rule do not have
175 Safari Club Int’l, 31 F.4th at 1169 (second alteration in original).
176 See id. at 1165, 1168.
177 NPS Management Policies § 4.4.3.
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the effect of reducing the natural abundance of predator species in the National
Preserves.178
Plaintiffs correctly point out, however, that NPS improperly equated State
sustained yield management with the Management Policies’ requirement that NPS
manage for self-sustaining wildlife populations.179 For example, in the 2020 Rule
NPS stated: “[t]he State’s constitutional mandate for sustained yield is consistent
with NPS Management Policies, which state that the NPS ‘manages [wildlife]
harvest to allow for self-sustaining populations of harvested species.’”180 Although
both State and Federal law use the term “sustain,” the similarities end there. The
term “sustained yield” in State law describes the human harvest of wildlife,
whereas the term “self-sustaining” in the NPS Management Policies describes
wildlife population levels.
The Alaska Constitution provides that “wildlife . . . belonging to the State
shall be utilized, developed, and maintained on the sustained yield principle,
subject to preferences among beneficial uses.”181 	Sustained yield is defined by
Alaska law as requiring “the achievement and maintenance in perpetuity of the
178 See discussion supra Section I.b.
179 Docket 47 at 36.
180 2020 Rule, 85 Fed. Reg. at 35,184 (alteration in original).
181 Alaska Const. art. VIII, § 4.
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ability to support a high level of human harvest of game.”182 State law accordingly
focuses on wildlife management to benefit hunters.183 	By contrast, Federal law
prioritizes the conservation of wildlife on Federal lands in Alaska. ANILCA requires
“the maintenance of sound populations of, and habitat for, wildlife species of
inestimable 	value.”184 	And NPS 	Management Polices 	direct the 	agency 	to
“manage[] harvest to allow for self-sustaining populations of harvested species,”
expressly prohibiting “activities to reduce the numbers of native species for the
purpose of increasing the numbers of harvested species (i.e., predator control),”
and the “stocking of plants or animals to increase harvest.”185 	Accordingly, State
law permits, and indeed directs, the promulgation of regulations intended to
increase human harvest of species, while the NPS Management Policies expressly
prohibit these same practices.
Intervenor-Defendants respond that the NPS Management Policies are
unenforceable.186 Indeed, the Management Policies themselves provide that they
are “not intended to” and do “not create any right or benefit . . . enforceable at law
182 Alaska Stat. § 16.05.255(k)(5).
183 See Alaska Const. art. VIII, § 4; Alaska Stat. § 16.05.255(k)(5).
184 16 U.S.C. § 3101(b).
185 NPS Management Policies § 4.4.3.
186 See Docket 81 at 26–27 (citing River Runners for Wilderness v. Martin, 593 F.3d 1064,
1072–74 (9th Cir. 2010)).
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or equity by a party against the United States, [or] its . . . agencies.”187 However,
the Management Policies are indirectly enforceable 	because NPS’s conclusion
that the 2020 Rule complies with the Management Policies is subject to judicial
review.
The Ninth Circuit holds that an agency action that claims to comply with a
non-binding standard, but does not in fact comply with that standard, is arbitrary
and capricious. 	In the context of a National Environmental Policy Act (NEPA)
analysis, the Circuit held: “Even assuming, arguendo, that the Standard does not
have the independent force and effect of law . . . it would nonetheless be arbitrary
and capricious for the [agency] to ignore it because . . . [the agency] claim[ed] that
the Service developed the Project in compliance with its provisions.”188 The Circuit
explained further that “we would then be compelled to find that the [agency action
is] misleading in violation of NEPA.”189 The Ninth Circuit applied this holding in the
context of an APA challenge to an agency action purporting to comply with a non-
binding agency policy.190 Accordingly, NPS’s conclusion in the 2020 Rule that the
187 NPS Management Policies, Introduction, at 4.
188 Ecology Center, Inc. v. Austin, 430 F.3d 1057, 1069 (9th Cir. 2005), overruled on other
grounds by The Lands Council v. McNair, 537 F.3d 981, 990–94 (9th Cir. 2008).
189 Id.
190 See River Runners for Wilderness, 593 F.3d at 1074–76 (acknowledging that such agency
action would be arbitrary and capricious, but holding that the agency action in that case did in
fact comply with the agency’s non-binding policies).
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State’s sustained yield requirements are equivalent to the NPS Management
Policies is arbitrary and capricious.
Plaintiffs contend further that NPS “improperly delegated its responsibility to
assure compliance with federal mandates to the State.”191 	Plaintiffs note that in
the text of the 2020 Rule, NPS justified its decision to delete the predator reduction
efforts prohibition by invoking the State’s commitment to closing hunting seasons
by emergency order, or to recommend more conservative hunting regulations to
the Alaska Board of Game.192 	However, given that the State’s definition of
“sustainable 	levels” 	is 	not 	equivalent 	to 	Federal 	requirements 	for 	wildlife
management on Federal lands, NPS cannot exclusively rely on the State to ensure
compliance with Federal law.193
However, Plaintiffs overlook NPS’s commitment to exercise its closure
authority to ensure compliance with Federal law.194 NPS explained that it retains
191 Docket 47 at 37.
192 See 2020 Rule, 85 Fed. Reg. at 35,183 (“[T]he State has assured the NPS that, in the event
harvest were to increase beyond sustainable levels, the ADFG would close seasons by
emergency order, if immediate action was necessary, and/or recommend more conservative
seasons, bag limits, and/or methods to the Alaska Board of Game for future hunting seasons.”).
193 Compare Alaska Stat. § 16.05.255(k)(5) with 16 U.S.C. § 3101(b) and NPS Management
Policies § 4.4.3.
194 See 2020 Rule, 85 Fed. Reg. at 35,184 (“The rule also does not diminish the limited closure
authority of the NPS to designate areas and periods of time where sport hunting and trapping
would not be allowed in national preserves . . . . [and] implement specific, local closures if,
when, and where necessary to prevent unacceptable impacts.”).
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“closure authority . . . for enumerated purposes.”195 	NPS then analyzed its
statutory duties under the Organic Act and ANILCA, concluding that the former
requires that “harvest practices [do] not threaten impairment of park resources”
and that the latter requires “the maintenance of healthy populations.”196 	Rather
than disclaiming its authority to enforce these statutory mandates, as Plaintiffs
allege, NPS committed to exercising its closure authority to close areas to hunting
if necessary “to prevent unacceptable impacts.”197 	Although NPS committed to
exercising its closure authority if necessary, the 2020 Rule nonetheless does not
accord with the Organic Act and ANILCA because NPS improperly described its
authority as limited to closure only.198
c. Congressional Review Act
Plaintiffs contend that NPS violated Section 801(g) of the Congressional
Review Act (CRA) when promulgating the 2020 Rule because it considered the
joint resolution of disapproval of the Refuges Rule.199 	Defendant-Intervenors
respond that as a preliminary matter, the Court does not have jurisdiction to reach
195 2020 Rule, 85 Fed. Reg. at 35,182.
196 2020 Rule, 85 Fed. Reg. at 35,183.
197 2020 Rule, 85 Fed. Reg. at 35,183–84.
198 See discussion supra pp. 41–43.
199 See Docket 47 at 30 n.106.
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this question because of the Jurisdiction Stripping Provision of the CRA.200 Section
805 of the CRA provides that “[n]o determination, finding, action, or omission under
this chapter shall be subject to judicial review.”201
Defendant-Intervenors rely on Center for Biological Diversity v. Bernhardt202
to support their theory that the jurisdictional bar is applicable to agency action
taken as part of the rulemaking process and alleged to violate Section 801.203 In
Center for Biological Diversity, the Ninth Circuit held that it did not have jurisdiction
to consider whether Congress followed the proper procedure, as set forth in the
CRA, when it disapproved the Refuges Rule.204 	The DOI had submitted the
Refuges Rule to Congress and the Comptroller General, consistent with the CRA,
on October 5, 2016.205 At the time, there were less than 60 days remaining in the
114th Congress, and when the presidential administration changed and the
subsequent congressional session began, Congress passed, and the President
signed into law, a joint resolution disapproving the Refuges Rule.206 	The Center
200 See Docket 99 at 2.
201 5 U.S.C. § 805.
202 946 F.3d 553 (9th Cir. 2019).
203 See Docket 99 at 2.
204 See Center for Biological Diversity, 946 F.3d at 562–64.
205 See id. at 558.
206 See id. at 562–64.
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for Biological Diversity sued, contending in relevant part that Congress had
violated Section 801(a)(1)(A) of the CRA because the reporting to Congress and
the Comptroller General was untimely. 	The Circuit considered the text of the
CRA’s Jurisdiction-Stripping Provision and concluded that the statute provided
clear and convincing evidence that Congress intended to preclude judicial review
of this statutory claim.t Center for Biological Diversity involved Congressional
action taken pursuant to the CRA, which falls squarely within the Jurisdiction-
Stripping Provision of the statute.207 	The current case involves review of an
entirely separate agency action distinct from the disapproval of the Refuges Rule.
Defendant-Intervenors also cite to a Tenth Circuit case, Kansas Natural
Resources Coalition v. U.S. Department of Interior.208 	The plaintiffs in Kansas
Natural 	Resources 	Coalition 	alleged 	that 	the 	agency 	had 	violated 	Section
801(a)(1)(A) of the CRA by failing to submit a rule to Congress.209 	The Tenth
Circuit held that it did not have subject matter jurisdiction to reach this question.210
However, 	like 	Center 	for 	Biological 	Diversity, 	in 	Kansas 	Natural 	Resources
Coalition a party sought review of agency action subject to the CRA. In contrast,
207 See id. at 562–63.
208 Docket 99 at 2 (citing 971 F.3d 1222 (10th Cir. 2020)).
209 See Kansas Nat. Res., 971 F.3d at 1228–29.
210 See id. at 1235.
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this case is about agency action taken subject to the APA, the Organic Act, and
ANILCA in promulgating the 2020 Rule.
The 	Ninth 	Circuit 	has 	not 	addressed 	whether 	the 	CRA’s 	Jurisdiction-
Stripping Provision prohibits judicial review of agency action, as opposed to
Congressional action, as was the case in Center for Biological Diversity. 	The
courts that have reached this question have not agreed.211 	Regardless, the
Jurisdiction-Stripping Provision only applies to actions taken “under this chapter,”
referring to Chapter 8, entitled Congressional Review of Agency Rulemaking.212
The Senate Report provides several examples of actions taken under the CRA
that are not subject to judicial review, such as “major rule determinations made by
the Administrator of the Office of Information and Regulatory Affairs of the Office
of 	Management 	and 	Budget” 	and 	“whether 	Congress 	complied 	with 	the
congressional review procedures.”213 	These are actions taken pursuant to the
procedures enumerated in the CRA. In this case, however, NPS acted under the
211 Compare Kansas Nat. Res. Coalition, 971 F.3d at 1235 (holding that § 805 precludes judicial
review of agency action taken pursuant to the CRA); Montanans for Multiple Use v. Barbouletos,
568 F.3d 225, 229 (D.C. Cir. 2009) (same); United States v. Carlson, Case No. CRIM. 12-305
DSD/LIB, 2013 WL 5125434, at *14 (D. Minn. Sept. 12, 2013), aff’d, 810 F.3d 544 (8th Cir.
2016) (same); and Texas Sav. & Cmty. Bankers Ass’n v. Fed. House. Fin. Bd., Case No. A 97
CA 421 SS, 1998 WL 842181, at *7 (W.D. Tex. June 25, 1998), aff’d, 201 F.3d 551 (5th Cir.
2000) (same); with Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 201–02 (2d Cir. 2004)
(reviewing a rule’s effective date under the CRA); Liesegang v. Sec’y of Veterans Affairs, 312
F.3d 1368, 1373–76 (Fed. Cir. 2002) (same).
212 5 U.S.C. § 805.
213 142 Cong. Rec. S3687, S3686 (1996).
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APA, and not the CRA, when it promulgated the 2020 Rule pursuant to the
rulemaking procedure outlined in Section 553 of the APA.214 	Hence, even if the
Jurisdiction-Stripping Provision reaches agency action, it does not encompass
action taken pursuant to the APA and not the CRA.
Courts routinely consider final rules published in the Federal Register and
the rationale supporting their promulgation.215 	It would be out of step with this
standard procedure to prohibit courts from considering the reasons supporting an
agency rulemaking. 	Absent “clear and convincing evidence” of congressional
intent to deny access to judicial review of the rulemaking process, Defendant-
Intervenors 	fail 	to 	overcome 	the 	presumption 	favoring 	judicial 	review.216
Accordingly, the Court has jurisdiction to determine whether, in promulgating the
2020 Rule, NPS erred when it relied on Congress’ disapproval of the Refuges
Rule.
In the 2020 Rule, NPS explained its decision to reconsider portions of the
2015 Rule was based in part on the passage of a joint resolution of disapproval by
Congress on April 3, 2017, that repealed the Refuges Rule.217 The Refuges Rule
was similar in substance to the 2015 Rule insofar as it prohibited certain State
214 See 5 U.S.C. § 553.
215 See Chevron, 467 U.S. 837; State Farm, 463 U.S. 29.
216 See Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991).
217 See 2020 Rule, 85 Fed. Reg. at 35,182.
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hunting practices on Federal land. 	The House and Senate sponsors of the joint
resolution for the Refuges Rule criticized the 2015 Rule.218 NPS in 2020 said with
respect to the joint resolution that
[w]hile refuges operate under different frameworks than national
preserves, this action by Congress was taken into account when
interpreting consistency with the authorities and principles that were
common to both rulemakings, including statutory requirements for
wildlife management activities to be carried out under State law, as
well as in considering how to complement regulations on surrounding
lands and waters to the extent legally practicable.219
Relying on the legislative history regarding the Refuges Rule, NPS inferred in the
2020 Rule that Congress did not approve of the policies underpinning the 2015
Rule.220
Plaintiffs assert that “[t]he CRA itself bars federal agencies from inferring
congressional intent from actions under the CRA except regarding the specific,
invalidated rule.”221 	Plaintiffs rely on Section 801(g), which provides “[i]f the
218 See Cong. Rec. S1864, S1868 (daily ed. Mar. 21, 2017) (See, e.g., statement of Sen.
Murkowski: “[T]he National Park Service in 2015 and the Fish and Wildlife Service in 2016 took
it upon themselves to propose regulations to take control [of wildlife] away from Alaska, despite
what was contained in our Statehood agreement, in ANILCA, and in the National Wildlife
Refuge Administration Act. The National Park Service’s rule is outside the reach of the
Congressional Review Act. So while, in my view, that also deserves repeal, it is not the focus of
our debate today.”).
219 2020 Rule, 85 Fed. Reg. at 35,182.
220 See 2020 Rule, 85 Fed. Reg. at 35,182 (“In light of the aforementioned actions and resulting
analysis, the NPS has revisited its approach regarding the authorizations that are the subject of
this rule[.]”).
221 Docket 47 at 30 n.106.
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Congress does not enact a joint resolution of disapproval under section 802
respecting a rule, no court or agency may infer any intent of the Congress from
any action or inaction of the Congress with regard to such rule . . . or joint resolution
of disapproval.”222
Intervenor-Defendants respond that Section 801(g) means “that because
Congress did not enact a joint resolution of disapproval for the 2015 NPS Rule, we
can’t infer any intent of Congress from that.”223 	Intervenor-Defendants point out
that there was a joint resolution of disapproval passed for the 2016 Refuges Rule,
“[s]o Section 801(g) is inoperative” and “while we can’t infer anything with regard
to the 2015 Rule, we can infer with regard to the 2016 [Refuges] Rule,” because
Congress did enact a joint resolution of disapproval with respect to that rule such
that 801(g) is inapplicable.224
At oral argument, Plaintiffs relied on the Ninth Circuit’s recent opinion in
Safari Club International v. Haaland225 for the proposition that a joint resolution
disapproving one rule does not indicate any congressional intent concerning
another rule.226 	But the issue in Safari Club was whether a congressional joint
222 5 U.S.C. § 801(g).
223 Docket 101 at 19:18–20:14.
224 Docket 101 at 21:10–21:17.
225 31 F.4th at 1169-70.
226 See Docket 101 at 7:11–7:17.
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resolution cancelling one rule can substantively amend Federal law such that
another rule would be repealed by implication. The Circuit held that the scope of a
joint resolution is narrow: it only cancels the rule at issue in the resolution.227 	In
this case, however, NPS did not determine that the 2015 Rule was implicitly
repealed by the joint resolution cancelling the Refuges Rule. Instead, NPS simply
considered the congressional intent regarding hunting restrictions on Federal
lands in Alaska as reflected in Congress’ decision to cancel the Refuges Rule.228
Agencies routinely look to acts of Congress to infer congressional intent
when 	conducting 	a 	rulemaking. 	Indeed, 	the 	legislative 	history 	of 	the 	CRA
specifically directs agencies to do so, providing that “a court or agency must give
effect to the intent of the Congress when such a resolution is enacted and becomes
the 	law 	of 	the 	land.”229 	The 	Congressional 	Record 	further 	explains 	that
“Subsection 801(g) prohibits a court or agency from inferring any intent of the
Congress only when ‘Congress does not enact a joint resolution of disapproval.’”230
In sum, because Congress passed a joint resolution cancelling the Refuges Rule,
NPS is required to give effect to the intent of Congress when it did so, and therefore
227 See Safari Club Int’l, 31 F.4th at 1169–70.
228 See 2020 Rule, 85 Fed. Reg. at 35,182.
229 142 Cong. Rec. at S3686.
230 142 Cong. Rec. at S3686 (emphasis added).
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properly considered the joint resolution of disapproval of the Refuges Rule in the
2020 rulemaking.
III. 	Bear Baiting
Plaintiffs criticize NPS’s decision to allow bear baiting despite the agency’s
acknowledgment that these practices may result in human injury or death.231
Plaintiffs note that in 2015, NPS prohibited bear baiting to avoid public safety
issues associated with this practice. In that rule, NPS explained that bear baiting
could food-condition bears and that these food-conditioned bears are “believed
more likely to cause human injury.”232 However, the 2015 analysis did not engage
with any data about the impacts of bear baiting on human safety. 	Rather, NPS
simply stated then that its decision was “based on the legal and policy framework
that governs national preserves and calls for maintaining natural ecosystems and
processes 	and 	minimizing 	safety 	concerns 	presented 	by 	food-conditioned
bears.”233
In 2020, NPS performed a more robust analysis on bear baiting, relying on
studies and the State’s comments to conclude that the public safety issues
231 See Docket 47 at 51–53.
232 2015 Rule, 80 Fed. Reg at 64,329.
233 See 2015 Rule, 80 Fed. Reg at 64,336.
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associated with bear baiting are “expected to be rare.”234 NPS acknowledged, as
it must, that bear baiting has the potential to adversely impact public safety,
especially if bears are attracted to bait stations and not harvested, due to the risk
of food-conditioned bears.235 	In the EA accompanying the 2020 Rule, however,
NPS referenced a study explaining that bear baiting is unlikely to food-condition
bears. 	This is because bear baiting does not teach bears to associate bait with
humans. Although this study was premised on the theory of bear baiting, and not
the practice of bear baiting, existing population data supports its conclusions.
Specifically, two studies found that bears exposed to bait were unlikely to become
nuisance animals in both Manitoba and on the National Preserves of Alaska. The
latter study of black bear baiting in Alaska from 1992 to 2010 reported “[l]ittle to no
population-level effects” and concluded that “bear baiting is centered on the
management goals of minimizing food-conditioning of bears, fostering public
safety . . . and maintaining processes and behaviors.”236
NPS acknowledged one study to the contrary, which found that bear feeding
to promote tourism in Quebec had population-level effects because it “may
decrease the annual and seasonal ranges of bears and lead to a local increase in
234 2020 Rule, 85 Fed. Reg. at 35,188.
235 See 2020 Rule, 85 Fed. Reg. at 35,188.
236 Docket 85-2 at 154–55.
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bear density that may exceed the social carrying capacity.”237 NPS nonetheless
concluded that the study of bear baiting in Alaska that found no public safety
concerns was more directly applicable to the 2020 rulemaking than the study of
bear baiting in Quebec for tourism purposes.238 	This conclusion survives judicial
review because NPS rationally explained why it considered the Alaska study to be
more persuasive than the Quebec study.239 Moreover, three of the four scientific
analyses 	discussed 	in 	the 	2020 	rulemaking 	support 	NPS’s 	bear 	baiting
conclusion.240 	And in the face of conflicting scientific studies, the Ninth Circuit
requires a court to accord deference to an agency’s scientific determinations,
explaining that the courts are not “a panel of scientists empowered to instruct
agencies on how to choose among scientific studies.”241
NPS goes one step further, justifying its decision by explaining that “Alaska
Department of Fish and Game regulations for bear bait stations will serve to
mitigate risk to public safety.”242 But this additional step is one step too far because
237 Docket 85-2 at 154.
238 See Docket 85-2 at 154–55.
239 See In re Big Thorne Project, 857 F.3d 968, 976 (9th Cir. 2017) (“[T]he agency must
rationally explain why it did what it did.”).
240 See Docket 85–2 at 154–55.
241 Safari Club Int’l, 31 F.4th at 1173 (citing Bair v. Cal. Dep’t of Transp., 982 F.3d 569, 578 (9th
Cir. 2020)).
242 2020 Rule, 85 Fed. Reg. at 35,188.
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NPS overlooked, without explanation, its finding in 2015 that the State’s bear
baiting regulations were insufficient to protect public safety.243 	In 2015, NPS
explained that “[a]lthough there are State regulations that prohibit bait stations
within a certain distance of structures (cabins/residences), roads, and trails, these
distances lack biological significance relative to bears, whose home ranges can
include 	tens 	to 	hundreds 	of square 	miles.”244 	As 	a 	result, 	the 	2015 	Rule
determined that “[b]ecause of the accessibility of these areas, they are typically
used by multiple user groups, which contributes to the public safety concerns
associated with baiting.”245
In 2020, NPS concluded that these same “Alaska Department of Fish and
Game regulations for bear bait stations will serve to mitigate risk to public
safety.”246 But the 2020 Rule fails to mention, let alone engage with the agency’s
finding to the contrary in 2015. 	In this respect, the 2020 Rule fails Fox’s first
and fourth requirements because NPS changed its position without displaying any
awareness that its new position contradicted the position it took in 2015 and
243 See Docket 47 at 52.
244 2015 Rule, 80 Fed. Reg. at 64,336.
245 2015 Rule, 80 Fed. Reg. at 64,336.
246 2020 Rule, 85 Fed. Reg. at 35,188.
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without providing any reason, let alone a good reason, for reaching the opposite
result.247
Plaintiffs maintain that this error is especially egregious because evidence
in the record “demonstrates abysmal compliance with baiting regulations on the
Preserve where baiting had been most common: Wrangell-St. Elias.”248 Beginning
in 1996, 73% of the bait stations existing along the McCarthy Road were found to
violate State or Federal law.249 NPS in the 2020 Rule did not reference any data
that would support the agency’s conclusion that State’s bear baiting regulations
help ensure public safety. In short, the agency did not explain its change in position
with regard to the mitigating effect that State regulation of bear baiting may have
on public safety.
IV. 	Remedy
NPS committed three errors in promulgating the 2020 Rule. First, the 2020
Rule is not in accordance with law because NPS incorrectly restricted its statutory
authority to regulate hunting on National Preserves in Alaska to only a “closure
authority,” even though the agency has plenary authority to protect the national
247 See Fox, 556 U.S. at 515–16.
248 Docket 47 at 52.
249 See Docket 85-4 at 17.
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interest in Federal public lands.250 	Second, the 2020 Rule is arbitrary and
capricious because NPS incorrectly equated its Management Policies requiring the
agency to manage wildlife “for self-sustaining populations” with the State of
Alaska’s “sustained yield” principle.251 	Third, the 2020 Rule is arbitrary and
capricious because NPS disregarded without explanation its conclusion in 2015
that State regulations fail to adequately address public safety concerns associated
with bear baiting.252 The agency action must be remanded.253
The remaining question is whether to vacate the 2020 Rule at this time or
remand while leaving the 2020 Rule in place. Ordinarily, when an agency fails to
comply with the APA, a court will vacate the agency action and remand to the
agency; but in rare instances when equity demands it, a regulation can be left in
place.254 “[C]ourts are not mechanically obligated to vacate agency decisions that
250 Compare 2020 Rule, 85 Fed. Reg. at 35,182, 35,184, & 35,187 with Safari Club Int’l, 31
F.4th at 1165.
251 2020 Rule, 85 Fed. Reg. at 35,184.
252 Compare 2015 Rule, 80 Fed. Reg. at 64,336 (“Although there are State regulations that
prohibit bait stations within a certain distance of structures (cabins/residences), roads, and trails,
these distances lack biological significance relative to bears, whose home ranges can include
tens to hundreds of square miles.”) with 2020 Rule, 85 Fed. Reg. at 35,188 (“Alaska
Department of Fish and Game regulations for bear bait stations will serve to mitigate risk to
public safety.”).
253 See 5 U.S.C. § 706(2).
254 See Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995).
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they find invalid.”255 “Whether agency action should be vacated depends on how
serious the agency’s errors are ‘and the disruptive consequences of an interim
change that may itself be changed.’”256
Defendant-Intervenors maintain that if a remand is warranted, it should be
without vacatur. Defendant-Intervenors contend that “[i]t would be incongruous to
grant a remedy that judicially reinstates the 2015 NPS Rule that bears such
remarkable similarities to a rule subsequently abrogated by Congress under the
CRA.”257 	Defendant-Intervenors also point out that NPS stated its intention to
reconsider these issues in a new rulemaking and that NPS requested remand
without vacatur.258 Plaintiffs respond that NPS made “serious and harmful errors”
and that “vacatur would re-establish the Service’s long-held position.”259
With regard to the seriousness of the agency’s errors, one important
consideration is whether the agency’s errors risk environmental harm.260 	For
255 Pac. Rivers Council v. U.S. Forest Serv., 942 F. Supp. 2d 1014, 1017 (E.D. Cal. 2013); see
also Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995) (“Although the district court
has power to do so, it is not required to set aside every unlawful agency action.”); Idaho Farm
Bureau Fed’n, 58 F.3d at 1405 (“[W]hen equity demands, the regulation can be left in place
while the agency follows the necessary procedures.”).
256 Cal. Cmtys. Against Toxics v. U.S. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (quoting Allied-
Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 142, 150–51 (D.C. Cir. 1993)).
257 Docket 81 at 51.
258 See Docket 81 at 51.
259 Docket 47 at 53.
260 See Pollinator Stewardship Council, 806 F.3d at 532.
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example, the Ninth Circuit upheld a decision to remand without vacatur the listing
of a snail species as endangered so as to avoid the potential extinction of the
species.261 The Ninth Circuit remanded with vacatur a rule to avoid harm to certain
“precarious” bee populations while the matter was again before the agency.262 In
this case, despite NPS’s errors, substantial evidence supports the agency’s
conclusion that the 2020 Rule will cause only a low level of additional take of
predators and will not alter the abundance of both predator and prey populations
in the National Preserves.263 	This factor accordingly weighs against vacatur.
With regard to the disruptive consequences, NPS has informed the Court on
several occasions that it has already begun the process of reassessing the 2020
Rule.264 	It would therefore be disruptive to vacate the 2020 Rule with a new rule
apparently 	on 	the 	near 	horizon. 	This 	factor 	also 	weighs 	against 	vacatur.
Therefore, the agency action is remanded without vacatur.
261 See Idaho Farm Bureau Fed’n, 58 F.3d at 1405-06.
262 Pollinator Stewardship Council, 806 F.3d at 532.
263 See 2020 Rule, 85 Fed. Reg. at 35,188.
264 See Docket 50; Docket 52 at 1 (Memorandum from Assistant Sec’y for Fish & Wildlife &
Parks to Dir., Nat’l Park Serv. (Feb. 17, 2022)); Docket 64.
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CONCLUSION
For the reasons expressed herein, Plaintiffs’ Motion for Summary Judgment
at Docket 47 is GRANTED IN PART and DENIED IN PART because the 2020 Rule
violated the Administrative Procedure Act in three respects:
• 	NPS acted contrary to law insofar as it determined that its statutory
authority to regulate hunting on the National Preserves of Alaska is
restricted to a “limited closure authority” and that ANILCA mandates that
NPS defer to State hunting regulations.
• 	NPS’s finding that State of Alaska’s and Federal wildlife management
requirements are equivalent is arbitrary and capricious.
• 	NPS’s disregard without explanation of its conclusion in 2015 that State
regulations fail to address public safety concerns associated with bear
baiting is arbitrary and capricious.
IT IS ORDERED that this action is REMANDED WITHOUT VACATUR to
NPS for further proceedings consistent with this order. 	The Clerk of Court shall
enter a final judgment accordingly.
DATED this 30th day of September, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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