The United States of America v. The State of Alaska et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THE UNITED STATES OF AMERICA,
Plaintiff,
and
KUSKOKWIM RIVER INTER-TRIBAL
FISH COMMISSION, et al.,
Intervenor-Plaintiffs
v.
THE STATE OF ALASKA, et al.,
Defendants.
Case No. 1:22-cv-00054-SLG
ORDER RE MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 70 is the United States’ Motion for Summary
Judgment. The State of Alaska1 filed a Combined Motion for Summary Judgment
and Opposition to the United States’ Motion for Summary Judgment at Docket 72
and Docket 73.2 	The United States filed a Reply Memorandum in Support of
Motion for Summary Judgment and in Opposition to Defendants’ Motion for
Summary Judgment at Docket 101. Intervenor-Plaintiffs joined the United States’
1 Defendants are the State of Alaska, the Alaska Department of Fish and Game (“ADF&G”), and
Doug Vincent-Lang, Commissioner of ADF&G (collectively, “the State” or “Defendants”). Docket
1 at ¶¶ 9-11.
2 The documents are identical. For convenience, the Court refers only to Docket 73 in this
order.
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Motion for Summary Judgment.3 Each filed a combined response in opposition to
the State’s motion for summary judgment and reply in support of the United States’
motion for summary judgment.4 	The State filed a Reply in Support of Motion for
Summary Judgment at Docket 122. While the Court previously indicated that oral
argument could be held,5 upon review of the parties’ briefing, oral argument was
not requested by any party and was not necessary to the Court’s determination.6
BACKGROUND
The United States Supreme Court observed that Congress has “repeatedly
recognize[d] that Alaska is different—from its ‘unrivaled scenic and geological
values,’ to the ‘unique’ situation of its ‘rural residents dependent on subsistence
uses,’ to ‘the need for development and use of Arctic resources with appropriate
recognition 	and 	consideration 	given 	to 	the 	unique 	nature 	of 	the 	Arctic
environment.’”7 	The 	unique 	situation 	of 	rural 	Alaskans’ 	dependence 	on
subsistence uses is squarely implicated in this case.
3 Docket 71 at 1-2; Docket 98 at 1. Intervenor-Plaintiffs are Kuskokwim River Inter-Tribal Fish
Commission (“the Commission”), see Docket 29; the Association of Village Council Presidents,
Betty Magnuson, and Ivan Ivan (collectively, “AVCP”), see Docket 37; Ahtna Tene Nené and
Ahtna, Inc. (collectively, “Ahtna”), see Docket 47; and Alaska Federation of Natives (“AFN”), see
Docket 96. The United States and Intervenor-Plaintiffs are collectively referred to as “Plaintiffs.”
4 Docket 109 (the Commission); Docket 110 (AFN); Docket 113 (Ahtna); Docket 115 (AVCP).
5 Docket 68 at 2.
6 Docket 126.
7 Sturgeon v. Frost (Sturgeon I), 577 U.S. 424, 438-39 (2016) (quoting Alaska National Interest
Lands Conservation Act, 16 U.S.C. §§ 3101(b), 3111(2), 3147(b)(5)).
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The Kuskokwim River runs more than 700 miles in southwest Alaska before
it ends in the Bering Sea. 	Approximately 180 miles of the Kuskokwim River runs
within the Yukon Delta National Wildlife Refuge (“the Refuge”) beginning at the
mouth of the river.8 	The Kuskokwim River contains several species of salmon,
including Chinook and chum salmon. “The residents of the local villages along the
Kuskokwim 	River 	and 	its 	tributaries 	are 	almost 	entirely 	federally 	qualified
subsistence users, both native and non-native, who are highly dependent on
salmon as a source of food.”9 	In addition, “subsistence harvest of salmon is
engrained 	within 	the 	culture 	and 	identity 	of 	these 	Kuskokwim 	area 	rural
residents.”10
I. 	Alaska National Interest Lands Conservation Act
In 1980, Congress enacted the Alaska National Interest Lands Conservation
Act (“ANILCA”).11 	One of ANILCA’s primary objectives is to protect and preserve
the opportunity for rural residents to engage in a subsistence way of life.12
Congress expressly found that “the continuation of the opportunity for subsistence
uses by rural residents of Alaska, including both Natives and non-Natives, . . . is
8 Docket 5-1 at ¶ 3 (Decl. of Boyd Blihovde). See Docket 101-1 at ¶ 3 (2d Decl. of Boyd
Blihovde) (referencing first declaration).
9 Docket 5-1 at ¶ 8.
10 Docket 5-1 at ¶ 8.
11 Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16 U.S.C. § 3101 et seq.).
12 16 U.S.C. § 3101. See Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1091 (9th Cir. 2008).
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essential to Native physical, economic, traditional, and cultural existence and to
non-Native 	physical, 	economic, 	traditional, 	and 	social 	existence.”13 	The
“Congressional statement of policy” in § 802 of ANILCA provides that “the purpose
of this subchapter is to provide the opportunity for rural residents engaged in a
subsistence way of life to do so.”14
Section 804 of ANILCA, entitled “Preference for subsistence uses,” provides
that “the taking on public lands of fish and wildlife for nonwasteful subsistence uses
shall be accorded priority over the taking on such lands of fish and wildlife for other
purposes.” 15 	ANILCA 	defines 	“subsistence 	uses” 	to 	mean 	“customary 	and
traditional uses by rural Alaska residents of wild, renewable resources.”16 	Thus,
Title VIII of ANILCA17 requires that “rural Alaska residents be accorded a priority
for subsistence hunting and fishing on public lands.”18 	In enacting Title VIII of
ANILCA, Congress indicated it was “invok[ing] . . . its constitutional authority under
the 	property 	clause 	and 	the 	commerce 	clause 	to 	protect 	and 	provide 	the
13 16 U.S.C. § 3111(1).
14 Id. § 3112(1).
15 Id. § 3114. See also id. § 3102(1)-(3) (defining “land,” “Federal land,” and “public lands”).
16 Id. § 3113 (emphasis added).
17 Title VIII of ANILCA is codified at 16 U.S.C. §§ 3111-3126.
18 Alaska v. Babbitt (Katie John I), 72 F.3d 698, 700 (9th Cir. 1995) (citing 16 U.S.C. §§ 3113-
3114), adhered to sub nom. John v. United States (Katie John II), 247 F.3d 1032 (9th Cir. 2001)
(en banc) (per curiam).
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opportunity for continued subsistence uses on the public lands by Native and non-
Native rural residents.” 19
Pursuant to § 805(d) of ANILCA, “Congress gave the state authority to
implement the rural subsistence preference by enacting laws . . . consistent with
ANILCA’s operative provisions.” 20 If Alaska “enforce[d] a rural subsistence priority
through the exercise of its own sovereignty, Congress [would] return primary
regulatory authority over [subsistence uses] to state stewardship,” but if Alaska
failed to do so, then “the federal government would step in to protect subsistence
[uses] as traditionally practiced by rural Alaskans.”21 	Promptly after ANILCA’s
enactment, the State enacted laws consistent with Title VIII’s rural subsistence
preference, and, in 1982, “the Secretary of the Interior certified the state to manage
subsistence hunting and fishing on public lands” in Alaska. 22
However, in 1989, the Alaska Supreme Court in McDowell v. Alaska “struck
down the state act granting the rural subsistence preference as contrary to the
Alaska state constitution.”23 	The court “stayed its decision to give the [Alaska]
legislature an opportunity to amend the constitution or otherwise bring its program
19 16 U.S.C. § 3111(4).
20 Katie John I, 72 F.3d at 700 (citing 16 U.S.C. § 3115(d)).
21 Katie John II, 247 F.3d at 1037 (Tallman, J., concurring) (citing 16 U.S.C. § 3115(d)). The
terms “rural subsistence priority” and “rural subsistence preference” are used interchangeably in
this order.
22 Katie John I, 72 F.3d at 700-01.
23 Katie John I, 72 F.3d at 701 (citing McDowell v. Alaska, 785 P.2d 1 (Alaska 1989)).
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into compliance with ANILCA,” but the state legislature “failed to act.”24 Therefore,
in 1990, “the federal government withdrew Alaska’s certification and took over
implementation of Title VIII.” 25 	To this day, the relevant provisions of Alaska’s
Constitution remain the same, and so a rural subsistence preference remains
unconstitutional under Alaska law.
In ANILCA, Congress directed the Secretaries of the Interior and Agriculture
to promulgate regulations in furtherance of ANILCA’s directives.26 	Following
McDowell, the Secretaries enacted temporary emergency regulations in 1990
creating the Federal Subsistence Board (“FSB”) to “administer[]” “[s]ubsistence
taking and uses of fish and wildlife on public lands.”27 The regulations were made
permanent in 1992, and they presently provide that the Secretaries of the Interior
and Agriculture “assign [the FSB] responsibility for administering the subsistence
taking and uses of fish and wildlife on public lands.”28 The FSB is composed of:
24 Katie John I, 72 F.3d at 701.
25 Id. See also Temporary Subsistence Management Regulations for Public Lands in Alaska, 55
Fed. Reg. 27114 (June 29, 1990).
26 16 U.S.C. § 3124; id. § 3102(12) (“The term ‘Secretary’ means the Secretary of the Interior,
except that when such term is used with respect to any unit of the National Forest System, such
term means the Secretary of Agriculture.”); Fed. Subsistence Bd., 544 F.3d at 1092. “The
Secretaries promulgated identical regulations, codified at 50 C.F.R., pt. 100, and 36 C.F.R., pt.
242.” Fed. Subsistence Bd., 544 F.3d at 1092 n.1. The Department of the Interior’s regulations
are codified at 50 C.F.R. Part 100, and the Department of Agriculture’s regulations are codified
at 36 C.F.R. Part 242. For the sake of simplicity, the Court cites to the regulations promulgated
by the Secretary of the Interior at 50 C.F.R. Part 100 in this order.
27 Temporary Subsistence Management Regulations for Public Lands in Alaska, 55 Fed. Reg. at
27123; 50 C.F.R. § 100.10(a).
28 50 C.F.R. § 100.10(a); Subsistence Management Regulations for Public Lands in Alaska,
Subparts A, B, and C, 57 Fed. Reg. 22940, 22953 (May 29, 1992) (to be codified at 36 C.F.R.
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A Chair to be appointed by the Secretary of the Interior with the
concurrence of the Secretary of Agriculture; two public members
who possess personal knowledge of and direct experience with
subsistence uses in rural Alaska to be appointed by the Secretary
of the Interior with the concurrence of the Secretary of Agriculture;
the Alaska Regional Director, U.S. Fish and Wildlife Service; Alaska
Regional Director, National Park Service; Alaska Regional Forester,
U.S. Forest Service; the Alaska State Director, Bureau of Land
Management; and the Alaska Regional Director, Bureau of Indian
Affairs.29
The FSB is “empowered . . . to implement Title VIII of ANILCA,” and it is
authorized to “[i]ssue regulations for the management of subsistence taking and
uses of fish and wildlife on public lands”; “[a]llocate subsistence uses of fish and
wildlife populations on public lands”; and “[r]estrict the taking of fish and wildlife on
public lands for nonsubsistence uses or close public lands to the take of fish and
wildlife for nonsubsistence uses when necessary for the conservation of healthy
populations of fish and wildlife, to continue subsistence uses of fish and wildlife, or
for reasons of public safety or administration.”30 	The FSB can also entirely
“[r]estrict or eliminate taking of fish and wildlife on public lands.”31 In addition, the
FSB has the authority to adopt “special actions” to “open or close public lands for
pt. 242 and 50 C.F.R. pt. 100).
29 50 C.F.R. § 100.10(b)(1). Initially, in 1990, FSB membership was narrower; it included the
same members listed in the current regulation, but without “two public members who possess
personal knowledge of and direct experience with subsistence uses in rural Alaska.” See
Temporary Subsistence Management Regulations for Public Lands in Alaska, 55 Fed. Reg. at
27123.
30 50 C.F.R. § 100.10(d)(4)(i), (iv), (vi).
31 Id. § 100.10(d)(4)(ix).
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the taking of fish” “if necessary to ensure the continued viability of a fish . . .
population” or “to continue subsistence uses of fish.” 32
II. 	Federal and State Closures of the Kuskokwim River
In 2021 and 2022, the FSB and federal field officials determined that closing
the 180-mile section of the Kuskokwim River within the Refuge to non-subsistence
uses was “necessary to conserve the fish population for continued subsistence
uses of the Chinook salmon upon which rural residents of the area depend.”33
Accordingly, “the FSB and agency field officials exercised their authority under
ANILCA to issue emergency special actions to close the 180-mile-long section of
the Kuskokwim River within the Yukon Delta National Wildlife Refuge . . . to non-
subsistence uses, while allowing limited subsistence uses by local rural residents
under narrowly prescribed terms and means of harvest.”34 In both 2021 and 2022,
the Alaska Department of Fish and Game (“ADF&G”) subsequently issued its own
emergency orders that overlapped with, and to some degree were inconsistent
with, the FSB’s emergency actions.35
32 50 C.F.R. § 100.19(a). See Subsistence Management Regulations for Public Lands in
Alaska, Subparts A, B, and C, 57 Fed. Reg. at 22957.
33 Docket 1 at ¶ 4; accord Docket 1-1 at 4 (“The closure of Federal public waters to the harvest
of salmon with gillnets beginning June 1 is based on conservation concerns and provisions of
opportunity for subsistence uses.”); Docket 5-1 at ¶ 11 (“[I]n 2021 and 2022, the underlying
basis for my decisions relating to harvest of salmon has been to reach an escapement of at
least 110,000 Chinook while allowing at least some opportunity for federally qualified local
residents to address their subsistence needs.”) (Decl. of Boyd Blihovde).
34 Docket 1 at ¶ 4.
35 See Docket 1 at ¶ 5.
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a. 	2021 Closures
In May 2021, federal authorities, in an emergency special action, closed the
Kuskokwim River located within the Refuge to all gillnet fishing of salmon,
beginning on June 1, 2021. However, the closure action provided five dates during
which federally qualified subsistence users could use gillnets to fish.36 	Federal
authorities 	later 	added 	additional 	days 	and 	locations 	during 	which 	federally
qualified subsistence users could use gillnets within the Refuge.37 	At no time
during the federal closure were non-federally qualified users allowed by federal
emergency special actions to gillnet fish on the Kuskokwim River within the
Refuge.
Several days after the first federal closure order was issued in May 2021,
ADF&G issued an emergency order closing parts of the Kuskokwim River to gillnet
fishing, which was consistent with the federal closure action.38 	At the same time,
however, ADF&G issued a second emergency order that allowed subsistence
gillnet fishing along the Kuskokwim River for all Alaskans—that was not limited to
federally qualified subsistence users—on each of the same dates that the federal
36 Docket 1-1 at 2-3 (Federal Emergency Special Action (“ESA”) #3-KS-01-21). The emergency
actions set different dates for federally qualified users to harvest salmon using set gillnets and
using drift gillnets. For the purposes of this order, the Court groups the set gillnet dates and the
drift gillnet dates together.
37 Docket 1-1 at 5 (Federal ESA #3-KS-02-21); Docket 1-1 at 7-8 (Federal ESA #3-KS-03-21).
38 Docket 1-2 at 2-4 (State Emergency Order (“EO”) #3-S-WR-01-21).
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emergency actions had reserved for federally qualified subsistence users.39 When
two federal emergency actions opened additional dates for federally qualified
subsistence 	gillnet 	fishing, 	the 	State 	followed 	suit 	for 	the 	same 	dates, 	but
authorized subsistence gillnet fishing for all Alaskans.40 	In one state emergency
order in 2021, the State authorized subsistence gillnet fishing for all Alaskans on
a date when federal subsistence gillnet fishing was not allowed.41
b. 	2022 Closures
On May 2, 2022, federal authorities issued an emergency special action
closing the main stem of the Kuskokwim River within the Refuge to gillnet fishing
for all salmon and closing river tributaries to all gillnet fishing and to the harvest of
Chinook and chum salmon, effective June 1, 2022.42 	However, the emergency
action allowed federally qualified subsistence users to use gillnets to harvest
salmon on June 1, 4, 8, 12, and 16, 2022. 43
On May 13, 2022, ADF&G issued an emergency order closing parts of the
Kuskokwim 	River 	to 	gillnet 	fishing, 	which 	was 	consistent 	with 	the 	federal
39 Docket 1-2 at 5-6 (State EO #3-S-WR-02-21), 7 (State EO #3-S-WR-04-21). See also Docket
73 at 29 (“Unlike [the federal] orders, the State’s orders authorized subsistence fishing for all
Alaskans that qualified for subsistence fishing, not just rural Alaskans, as required by the Alaska
Constitution.”).
40 Compare Docket 1-1 at 5 (Federal ESA #3-KS-02-21), 7-8 (Federal ESA #3-KS-03-21), with
Docket 1-2 at 9 (State EO #3-S-WR-06-21), 15 (State EO #3-S-WR-08-21).
41 Compare Docket 1-2 at 12-13 (State EO #3-S-WR-07-21), with Docket 1-1 at 2-9 (2021
Federal ESAs).
42 Docket 1-1 at 10 (Federal ESA #3-KS-01-22).
43 Docket 1-1 at 11-12 (Federal ESA #3-KS-01-22).
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emergency action taken earlier that month. 44 However, at the same time, ADF&G
issued a second emergency order that authorized subsistence gillnet fishing by all
Alaskans—not just federally qualified subsistence users—on three of the dates
that the federal emergency action had reserved for federally qualified subsistence
users: June 1, 4, and 8, 2022.45 	The State explained that it intended this
opportunity to “allow those individuals who have been displaced to the urban areas
of Alaska for educational, social, health or other reasons to practice their traditional
and cultural subsistence way of life that is closely tied to the Kuskokwim River.”46
Plaintiffs sought—and the Court granted—a preliminary injunction enjoining
ADF&G from implementing its order authorizing subsistence gillnet fishing on three
dates in June 2022 by all Alaskans for the duration of this case.47 	ADF&G was
further prohibited “from taking similar actions that authorize gillnet fishing by all
Alaskans on the Kuskokwim River within the Yukon Delta National Wildlife Refuge
when such action(s) would be contrary to federal orders issued pursuant to Title
VIII of the ANILCA.”48
Now before the Court are the parties’ motions for summary judgment on
whether the FSB’s orders pursuant to Title VIII of ANILCA preempt ADF&G’s
44 Docket 1-2 at 17-18 (State EO #3-S-WR-01-22).
45 Docket 1-2 at 19-20 (State EO #3-S-WR-02-22).
46 Docket 1-2 at 19 (State EO #3-S-WR-02-22).
47 United States v. Alaska (Kuskokwim I), 608 F. Supp. 3d 802, 813 (D. Alaska 2022).
48 Id.
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emergency orders authorizing subsistence gillnet fishing on the Kuskokwim River
for all Alaskans.49 	The State maintains that its actions are not preempted by
federal law because ANILCA does not apply to the Kuskokwim River and the FSB
violates the Appointments Clause of the United States Constitution.50
JURISDICTION
The Court has jurisdiction pursuant to 28 U.S.C. § 1345 because the United
States commenced this civil action, and pursuant to 28 U.S.C. § 1331 because this
is a civil action with claims arising under federal law, namely ANILCA, 16 U.S.C. §
3101 et seq., and the Appointments Clause of the United States Constitution.
Whether a federal law preempts a state law is a question of federal law.51
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” 	The burden of
showing the absence of a genuine dispute of material fact lies with the movant. 52
In 	reviewing 	cross-motions 	for 	summary 	judgment, 	a 	court 	“review[s] 	each
49 See Docket 70 at 2; Docket 73 at 8-9.
50 Docket 73 at 8-9.
51 See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214 (1985).
52 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
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separately, giving the non-movant for each motion the benefit of all reasonable
inferences.” 53
DISCUSSION
I. 	Waiver
The United States contends that the State has “waived any argument on
preemption.” 54 The State counters that the State “briefed the issue extensively” in
its motion for summary judgment by asserting that “[t]he State’s orders are not
preempted because the Kuskokwim River is not ‘public land’ under ANILCA,” and
“because the FSB members were not properly appointed.”55 In essence, the State
claims that federal preemption does not apply to the State’s conduct here because
the portion of the Kuskokwim River at issue is outside ANILCA’s purview, and any
potentially 	preemptive 	federal 	action 	by 	the 	FSB 	was 	conducted 	by
unconstitutionally selected federal officers. The Court therefore finds that the State
has not waived its argument against federal preemption and proceeds to address
the State’s challenges to preemption below.
II. 	ANILCA and the Kuskokwim River Within the Refuge
As a threshold issue, Plaintiffs maintain that the State is “precluded from
relitigating” its “defenses” because they were, or could have been, decided in prior
53 Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016) (citing Ctr. for Bio-Ethical
Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).
54 Docket 101 at 20.
55 Docket 122 at 22 (quoting Docket 73 at 34-50).
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litigation.56 	The United States contends that issue preclusion bars the State from
“relitigating whether ANILCA Title VIII applies to subsistence fishing in navigable
waters that include the Kuskokwim River.”57 	The United States maintains that
“[t]his issue was squarely decided by the Ninth Circuit in the Katie John litigation
in which Alaska was a plaintiff.” 58 	The State counters that issue preclusion does
not apply because, among other reasons, Sturgeon v. Frost constitutes a “change
in the applicable legal context.”59
Issue 	preclusion, 	or 	collateral 	estoppel, 	applies 	“where 	(1) 	the 	issue
necessarily decided at the previous proceeding is identical to the one which is
sought to be relitigated; (2) the first proceeding ended with a final judgment on the
merits; and (3) the party against whom collateral estoppel is asserted was a party
or in privity with a party at the first proceeding.”60 	“Offensive collateral estoppel
refers to the situation where the plaintiff seeks to foreclose a defendant from
relitigating an issue the defendant has previously litigated unsuccessfully in
56 Docket 101 at 21. See Docket 109 at 21-26. In its response brief, the Commission also
contends that 28 U.S.C. § 2401(a), which contains a six-year statute of limitations on claims
against the federal government, bars the State’s defenses. Docket 109 at 27-31. However, as
the State notes, that limitation applies to “civil action[s] commenced against the United States”
and the State did not commence this action but rather is the defendant. Docket 122 at 45.
57 Docket 101 at 22-31.
58 Docket 101 at 22 (first citing Katie John I, 72 F.3d 698; then citing Katie John II, 247 F.3d
1032; and then citing John v. United States (Katie John III), 720 F.3d 1214 (9th Cir. 2013), cert.
denied sub nom. Alaska v. Jewell, 572 U.S. 1042 (2014)).
59 Docket 122 at 27-29 (citing Sturgeon v. Frost (Sturgeon II), 587 U.S. 28 (2019)).
60 Af-Cap Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1086 (9th Cir. 2007) (quoting
Kourtis v. Cameron, 419 F.3d 989, 994 (9th Cir. 2005)).
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another action against the same or a different party.”61 Issue preclusion does not
“foreclose[] . . . relitigation of [an] issue in [a] second action between the parties” if
“[t]he issue is one of law and . . . a new determination is warranted in order to take
account of an intervening change in the applicable legal context.” 62
Here, all three prerequisites for issue preclusion are present. Nonetheless,
the Court finds that Sturgeon constitutes a “change in the legal context,” as it
addressed the definition of public lands in ANILCA—albeit in the application of Title
I and not Title VIII—such that issue preclusion should not apply.63
Further, Plaintiffs maintain that judicial estoppel prevents the State from
arguing that Sturgeon undermines the Katie John trilogy because the State
asserted, in an amicus brief before the Supreme Court in Sturgeon, that Katie John
was not at issue in that case.64 	The State maintains that judicial estoppel is
inapposite because the State was not a party in Sturgeon; rather, it participated
only as an amicus curiae.65
Judicial estoppel applies when (1) a party takes a position that is clearly
inconsistent with its earlier position; (2) the earlier position was judicially accepted;
61 Coeur D'Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 689 (9th Cir. 2004) (internal
quotation marks omitted) (quoting Nat’l Med. Enters., Inc. v. Sullivan, 916 F.2d 542, 545 n.2 (9th
Cir. 1990)).
62 Segal v. Am. Tel. & Tel. Co., 606 F.2d 842, 845 (9th Cir. 1979) (citation omitted).
63 Sturgeon II, 587 U.S. at 38-53.
64 Docket 101 at 27-31; Docket 109 at 13-21.
65 Docket 122 at 39-40.
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and (3) the party asserting the inconsistent position would derive an unfair
advantage if not estopped.66 The Court finds that judicial estoppel does not apply
because the State was not a party in Sturgeon and, while judicial estoppel might
apply to non-parties in privity with a party, the State is not in privity with either party
involved in Sturgeon.67
The Court now turns to the State’s contention that “Sturgeon ‘undercut[s] the
theory [and] reasoning underlying’ Katie John, the two decisions are ‘clearly
irreconcilable’ and so this Court should not follow Katie John.”68 Instead, the State
maintains, “the Court should follow Sturgeon and hold that the Kuskokwim River is
not ‘public land’ under ANILCA and so the United States cannot impose a
subsistence priority on the river under ANILCA.”69
The Court declines to do so. To disregard the binding nature of Katie John,
the 	Court 	would 	have 	to 	find 	that 	Katie 	John 	and 	Sturgeon 	are 	“clearly
66 New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001) (citations omitted).
67 The United States maintains that participation as an “amicus . . . does not foreclose
application of judicial estoppel” and “judicial estoppel can apply in suitable circumstances to
representations by a non-party participant in prior litigation.” Docket 101 at 30 n.12 (citing
Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 995-96 (9th Cir. 2012)).
However, in Milton H. Greene Archives, Inc., the Ninth Circuit held that an executor and the
beneficiary of an estate were in privity and applied judicial estoppel to prevent a beneficiary from
asserting that the decedent was domiciled in California when the executors had previously and
consistently represented that the decedent was domiciled in New York. As noted, there is no
privity between the State and the parties in Sturgeon. Plaintiffs have not otherwise persuaded
the Court that judicial estoppel is appropriate in this case.
68 Docket 73 at 39 (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)).
69 Docket 73 at 39.
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irreconcilable.”70 	This “high standard”71 is only met when the prior precedent has
been “effectively overruled” by the intervening higher authority, although “the
issues 	decided 	by 	the 	higher 	court 	need 	not 	be 	identical 	in 	order 	to 	be
controlling.”72 	“For [a court] to hold that an intervening Supreme Court decision
has ‘effectively overruled’ circuit precedent, the intervening decision must do more
than simply ‘cast doubt’ on our precedent. Rather, it must ‘undercut the theory or
reasoning underlying the prior circuit precedent in such a way that the cases are
clearly irreconcilable.’” 73
As the Commission and other Plaintiffs observe, in Sturgeon, the Supreme
Court expressly acknowledged that in Katie John, the Ninth Circuit defined “‘public
lands,’ when used in ANILCA’s subsistence-fishing provisions, [to] encompass[]
navigable waters,” and the Supreme Court noted that “[t]hose provisions are not
at issue” in Sturgeon.74 	The Supreme Court expressly stated that its ruling in
Sturgeon does “not disturb the Ninth Circuit’s holdings that the Park Service may
regulate subsistence fishing on navigable waters.”75 	As such, Sturgeon did not
70 Miller, 335 F.3d at 900.
71 Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (citation omitted).
72 Miller, 335 F.3d at 893, 900.
73 United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (quoting Miller, 335
F.3d at 900).
74 See Sturgeon II, 587 U.S. at 45 n.2; Docket 109 at 31-32; Docket 101 at 34; Docket 110 at
32-33; Docket 113 at 32-35; Docket 115 at 37-43.
75 Sturgeon II, 587 U.S. at 45 n.2.
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effectively overrule the Ninth Circuit’s holding in Katie John, and the two cases are
not clearly irreconcilable.
The Court therefore is bound by the Katie John trilogy of cases to find that
Title VIII’s rural subsistence priority applies to “navigable waters in which the
United States has reserved water rights,” 76 and that the Secretaries lawfully
designated the Kuskokwim River in the Refuge as a navigable water subject to
Title VIII of ANILCA.77 	Therefore, the State is not entitled to summary judgment
on that basis.78
III. 	Appointments Clause
Plaintiffs contend that claim preclusion bars the State from challenging the
creation of the FSB and the appointment of its members because it could have
raised such a challenge in Katie John or other litigation involving the FSB, including
Alaska v. Federal Subsistence Board.79 The State maintains that claim preclusion
does not bar its Appointments Clause challenge to the FSB because there is an
exception to claim preclusion “where between the time of the first judgment and
the second there has been an intervening decision or a change in the law creating
76 Katie John III, 720 F.3d at 1239 (quoting Katie John I, 72 F.3d at 700).
77 Id. at 1245; 50 C.F.R. § 100.3(b)(4).
78 Because the Court is bound by Katie John, the Court does not reach AFN’s argument that,
irrespective of Katie John, pursuant to the Commerce and Property Clauses of the Constitution
“the federal government’s authority to regulate pursuant to ANILCA’s subsistence priority
extends to fish in navigable waters in Alaska.” Docket 110 at 44.
79 Docket 101 at 31-32 (citing Fed. Subsistence Bd., 544 F.3d 1089); Docket 109 at 26-27.
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an altered situation.”80 	The State asserts that there “have been intervening
decisions on the Appointments Clause” since the prior litigation involving the
FSB.81
“[C]laim preclusion prevents parties from raising issues that could have been
raised and decided in a prior action—even if they were not actually litigated.”82 In
other words, “[i]f a later suit advances the same claim as an earlier suit between
the same parties, the earlier suit’s judgment ‘prevents litigation of all grounds for,
or defenses to, recovery that were previously available to the parties, regardless
of whether they were asserted or determined in the prior proceeding.’” 83 	“Suits
involve the same claim (or ‘cause of action’) when they ‘aris[e] from the same
transaction,’ or involve a ‘common nucleus of operative facts.’”84
Plaintiffs present a compelling case that claim preclusion applies to the
State’s Appointment Clause defense, as the federal regulations establishing the
FSB were the very same regulations at issue in Katie John III, and the State could
80 Docket 122 at 38-39 (quoting State Farm Mut. Auto. Ins. Co. v. Duel, 324 U.S. 154, 162
(1945)).
81 Docket 122 at 38 (first citing Lucia v. SEC, 585 U.S. 237 (2018); then citing Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020); and then citing United States v. Arthrex,
Inc., 594 U.S. 1 (2021)).
82 Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 1594 (2020).
83 Id. (quoting Brown v. Felsen, 442 U.S. 127, 131 (1979)).
84 Id. at 1595 (first quoting United States v. Tohono O’odham Nation, 563 U.S. 307, 316 (2011);
and then quoting Restatement (Second) of Judgments § 24 cmt. b (1982)).
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have 	invoked 	the 	Appointments 	Clause 	in 	that 	litigation 	to 	challenge 	the
constitutionality of the FSB.
However, even if claim preclusion does not apply, the Court finds that the
State’s challenges pursuant to the Appointments Clause fail. 	“The Appointments
Clause specifies the exclusive ways of appointing ‘Officers of the United States.’”85
The Clause provides that the President “shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint . . . Officers of the United States, whose
Appointments 	are 	not 	herein 	otherwise 	provided 	for, 	and 	which 	shall 	be
established by Law.”86 	The Clause further provides that “Congress may by Law
vest the Appointment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.”87 	As such, “[t]he
Appointments Clause applies only to ‘Officers of the United States’—not simple
employees. 	Unlike employees, officers, whether principal or inferior, exercise
‘significant authority pursuant to the laws of the United States,’ and their duties are
‘continuing and permanent,’ rather than ‘occasional or temporary.’”88 For example,
Administrative Law Judges at the Securities and Exchange Commission89 and
Immigration 	Judges 	and 	Board 	of 	Immigration 	Appeals 	(“BIA”) 	Officers 	are
85 Cody v. Kijakazi, 48 F.4th 956, 960 (9th Cir. 2022) (quoting U.S. Const. art. II, § 2, cl. 2).
86 U.S. Const. art. II, § 2, cl. 2.
87 Id.
88 Duenas v. Garland, 78 F.4th 1069, 1072 (9th Cir. 2023) (quoting Lucia, 585 U.S. at 241, 245).
89 Lucia, 585 U.S. at 244-48.
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constitutional 	officers 	because 	their 	“responsibilities 	are 	legally 	defined 	and
continuous” and they “wield substantial authority.” 90
The State advances two challenges to the FSB: (1) that it is unconstitutional
because the Appointments Clause provides that “Officers of the United States . . .
shall be established by Law” and the FSB was created by regulation and not by
statute;91 and (2) that the FSB’s members are principal officers and therefore they
must be appointed by the President with the consent of the United States Senate.92
As to the State’s first contention, Plaintiffs counter that the FSB was created by
law through regulation, and “Congress directed in Title VIII that ‘[t]he Secretary
shall prescribe such regulations as are necessary and appropriate to carry out [the
Secretary’s] responsibilities under this subchapter.’” 93 	Regarding the State’s
second challenge, Plaintiffs maintain that the FSB’s members are employees, not
officers at all, but, at most, FSB members are inferior officers and do not require
appointment by the President and confirmation by the Senate.94
First, 	the 	Court 	finds 	that 	the 	FSB 	was 	established 	by 	law. 	The
Appointments Clause provides that “Congress may by Law vest the Appointment
90 Duenas, 78 F.4th at 1073.
91 Docket 73 at 44-46; U.S. Const. art. II, § 2, cl. 2.
92 Docket 73 at 46-50.
93 Docket 101 at 40-41 (quoting 16 U.S.C. § 3124); Docket 109 at 46-47; Docket 110 at 58.
94 Docket 101 at 42-48.
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of such inferior Officers, as they think proper, in the . . . Heads of Departments.”95
ANILCA accords to the Secretaries the authority to “prescribe such regulations as
are necessary and appropriate to carry out his responsibilities under” ANILCA.96
And so, in ANILCA, Congress, by law, vested the appointment of inferior officers
necessary to carry out ANILCA in the Secretaries of the Interior and Agriculture.
And 	there 	is 	nothing 	improper 	about 	the 	Secretaries 	creating 	the 	FSB 	by
promulgating federal regulations, as it is a “black-letter principle that properly
enacted regulations have the force of law.”97
The State relies on Office of Personnel Management v. Richmond for the
proposition that because the Appointments Clause provides that “Congress may
by Law” vest the appointment of inferior officers in the Secretaries, inferior office
positions must be created by law, meaning only by statute.98 	However, that case
concerned Congress’s sole authority to appropriate funds from the Treasury under
a different constitutional clause—the Appropriations Clause.99 And while language
in the Appointments Clause suggests that principal officers “shall be established
by Law,” with respect to inferior officers, the Appointments Clause requires only
95 U.S. Const. art. II, § 2, cl. 2.
96 16 U.S.C. § 3124. See id. at § 3102(12) (defining “Secretary” as the Secretary of the Interior,
but when the National Forest System is implicated, as the Secretary of Agriculture).
97 Flores v. Bowen, 790 F.2d 740, 742 (9th Cir. 1986).
98 Docket 122 at 71 (citing OPM v. Richmond, 496 U.S. 414, 424 (1990)); Docket 73 at 45.
99 Richmond, 496 U.S. at 424 (quoting U.S. Const. art. I, § 9, cl. 7 (“No Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by Law.”)).
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that Congress, by law, vest the appointment of inferior officers in the head of a
department.100 Because Congress did so here in ANILCA, the Court finds that the
FSB was lawfully created.
Next, the Court finds that members of the FSB are constitutional officers, not
employees. 	The responsibilities of the FSB’s members are “legally defined” by
federal regulations, the FSB’s responsibilities are “continuous” in that they have a
continuing 	obligation 	to 	ensure 	a 	rural 	subsistence 	priority 	in 	Alaska 	under
ANILCA, and federal regulations do not provide for a term limit for members of the
FSB.101 Further, FSB members exercise “significant authority pursuant to the laws
of the United States,”102 in that they are empowered to issue regulations pursuant
to subparts C and D of the regulations implementing ANILCA, allocate subsistence
uses of fish and wildlife, and restrict or eliminate the taking of fish and wildlife on
public lands in Alaska.103
The question is therefore whether the FSB’s members are principal or
inferior officers. 	“When distinguishing between these types of officers, [courts]
mainly look at whether the officer’s work is ‘directed and supervised at some level’
by other officers appointed by the President with the Senate’s consent.” 104 	In
100 U.S. Const. art. II, § 2, cl. 2.
101 See 50 C.F.R. § 100.10; Duenas, 78 F.4th at 1073.
102 Lucia, 585 U.S. at 245 (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).
103 50 C.F.R. § 100.10(d)(4)(i), (iv), (vi), (ix).
104 Duenas, 78 F.4th at 1073 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561
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Duenas v. Garland, the Ninth Circuit held that immigration judges and BIA
members are inferior officers because “[t]he Attorney General—who is appointed
by the President with the consent of the Senate—ultimately directs and supervises
the work of both officials.”105
Here, the Court finds that the members of the FSB are inferior officers, as
their work is directed by the Secretaries, they are ultimately supervised by either
the Secretary of the Interior or the Secretary of Agriculture, and Presidentially-
appointed and Senate-approved officers also supervise the five ex officio members
of the FSB.106 The federal regulations promulgated by the Secretaries direct FSB
members as to the FSB’s responsibilities, the scope of its authority, and the
objectives of the FSB’s actions. For example, the FSB is tasked with determining
which communities in the State qualify as rural and which rural communities have
customary and traditional uses of specific fish or wildlife, and establishing priorities
for the subsistence taking of fish and wildlife on public lands;107 the Secretaries
have 	provided 	the 	FSB 	with 	factors 	and 	criteria 	to 	consider 	when 	making
U.S. 477, 510 (2010)). See Arthrex, Inc., 594 U.S. at 13.
105 Duenas, 78 F.4th at 1073 (citing 8 C.F.R. § 1003.1(a)(1) (“[Members of the BIA] shall . . . act
as the Attorney General’s delegates in the cases that come before them.”)) (additional citations
omitted).
106 See Docket 101 at 44-45.
107 50 C.F.R. § 100.10(d)(4)(ii), (iii), (viii).
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customary and traditional use determinations and when prioritizing subsistence
uses among rural Alaskans.108
Additionally, members of the FSB are “supervised at some level” by the
Secretaries. In the final rule establishing the FSB, the Secretaries responded to a
comment regarding what is now 50 C.F.R. § 100.13, noting that
[t]o 	simplify 	and 	localize 	the 	process 	for 	promulgating 	rural
determinations, 	customary 	and 	traditional 	use 	determinations,
seasons and bag limits, and methods and means provisions, the
Secretaries have delegated administrative and signature authority for
subparts 	C 	and 	D 	to 	the 	Board. 	As 	with 	any 	such 	internal
departmental 	delegation, 	the 	Secretaries 	remain 	responsible, 	as
statutorily charged, for the proper administration of the program.109
More 	explicitly, 	the 	Secretaries 	also 	acknowledged 	that 	the 	rule 	“delegated
promulgation and signature authority for regulations of Subparts C and D to the
Board,” 	but 	that 	“[t]his 	delegation 	does 	not 	constitute 	a 	delegation 	of 	the
Secretaries’ final authority over these, or other subparts, of this rule.” 110
The Court agrees with the United States that “the absence of a specified (or
mandatory) path for higher level review does not render FSB members principal
officers,”111 and that while “[t]he Board is the final administrative authority on the
promulgation of subparts C and D regulations relating to the subsistence taking of
108 Id. §§ 100.16, 100.17.
109 Subsistence Management Regulations for Public Lands in Alaska, Subparts A, B, and C, 57
Fed. Reg. at 22947.
110 Id. at 22946.
111 Docket 101 at 46 (citing Fleming v. U.S. Dep’t of Agric., 987 F.3d 1093, 1103 (D.C. Cir.
2021)).
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fish and wildlife on public lands,” the Secretaries are not precluded from reviewing
the FSB’s actions or supervising the FSB’s conduct. 112
Additionally, five of the FSB’s members are the Alaska Regional Director,
U.S. Fish and Wildlife Service; Alaska Regional Director, National Park Service;
Alaska Regional Forester, U.S. Forest Service; the Alaska State Director, Bureau
of 	Land 	Management; 	and 	the 	Alaska 	Regional 	Director, 	Bureau 	of 	Indian
Affairs.113 	Each of these positions is supervised “at some level” by other officers
appointed by the President with the Senate’s consent.114 The remaining members
112 50 C.F.R. § 100.13(a)(2). The State maintains that “Arthrex makes clear that any behind-the-
scenes oversight is irrelevant.” Docket 122 at 77 (citing 594 U.S. 1). However, the record
indicates that the Department of the Interior routinely reviews—and, in fact, approves—
proposed regulatory changes approved by the FSB, demonstrating that the Secretary of the
Interior in fact provides final review of the FSB’s regulatory actions pursuant to subparts C and
D. See Docket 53-1 at 17 (email from Assistant Regional Director, Subsistence, U.S. Fish and
Wildlife Service, Alaska Region, to Senior Advisor for Alaskan Affairs, Department of the Interior,
noting that “the final rule for 2020-2022 wildlife regulations is still waiting for Dept approval
before it can be published in the FR. In the interim, to enact these regulatory changes in time
for the upcoming hunts (many of which begin Sept 1), the Board can act under its authority for
temporary special actions to enact these while waiting for the Dept. to sign the final rule.”). The
Court finds such supervision by the Secretary of the Interior highly relevant to the inquiry as to
whether FSB members are principal or inferior officers.
113 50 C.F.R. § 100.10(b)(1).
114 See 16 U.S.C. § 742b(b) (establishing office of Director of U.S. Fish and Wildlife Service and
providing for the appointment of the Director by the President with the advice and consent of the
Senate); 54 U.S.C. § 100302(a)(1) (providing for the appointment of the Director of the National
Park Service by the President with the advice and consent of the Senate); 36 C.F.R. § 200.1(b)
(noting that “[t]he Chief of the Forest Service, under the direction of the Secretary of Agriculture,
administers the formulation, direction, and execution of Forest Service policies, programs, and
activities); 43 U.S.C. § 1731(a) (establishing office of Director of the Bureau of Land
Management and providing for the appointment of the Director by the President with the advice
and consent of the Senate); 43 U.S.C. § 1453 (creating two Assistant Secretaries of the Interior
and providing for their appointment by the President with the advice and consent of the Senate).
One of the Assistant Secretaries of the Interior is the Assistant Secretary for Indian Affairs. See
U.S. Department of the Interior, Indian Affairs, Office of the Assistant Secretary for Indian Affairs,
https://www.bia.gov/as-ia (last visited Mar. 29, 2024).
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are appointed by the Secretary of the Interior, with the consent of the Secretary of
Agriculture, and as such they are directly accountable to the Secretary.115
In sum, the Court finds that the FSB was created by law and the members
of the FSB are properly appointed inferior officers.116 	As such, no violation of the
Appointments Clause has occurred.
* * *
As the State’s arguments against federal preemption of ADF&G’s orders
pursuant to Sturgeon and the Appointments Clause fail, the State is not entitled to
summary judgment. And because the State has failed to create a genuine dispute
of material fact as to federal preemption, the Court grants summary judgment to
the United States. The United States can impose a rural subsistence priority on
the Kuskokwim River under ANILCA.
IV. 	Permanent Injunction
Plaintiffs seek a permanent injunction preventing the State “from reinstating
Defendants’ 2021 orders, from proceeding under Defendants’ 2022 orders, or from
115 See Docket 101 at 47 (citing Docket 52-4 at 5 (Secretary’s letter noting dismissal of FSB
Chairman as “perhaps marking a new direction by this Administration”)); Docket 52-4 at 7 (terms
and conditions of appointment of public FSB member noting that “[s]upervision and guidance on
terms of employment for the position shall be assigned to the Alaska Affairs Office of the
Secretary’s Office”).
116 The State did not assert that, if the FSB members are inferior officers, that their appointment
is unconstitutional.
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taking 	similar 	actions 	interfering 	with 	or 	in 	contravention 	of 	federal 	orders
addressing ANILCA Title VIII and applicable regulations.”117
An injunction is an “extraordinary remedy never awarded as of right.” 118 “To
be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual
success on the merits; (2) that it has suffered an irreparable injury; (3) that
remedies available at law are inadequate; (4) that the balance of hardships justify
a remedy in equity; and (5) that the public interest would not be disserved by a
permanent injunction.” 119
As explained above, Plaintiffs have succeeded on the merits in this case.
And, for the reasons outlined in the Court’s prior order granting a preliminary
injunction, Plaintiffs have satisfied the remaining factors and are therefore entitled
to a permanent injunction.120 	They have shown irreparable harm to the United
States’ ability to enforce ANILCA's rural subsistence priority and to federally
qualified 	subsistence 	users 	caused 	by 	the 	State’s 	issuance 	of 	conflicting
emergency orders. And they have shown that the balance of the equities and the
public interest support a permanent injunction, as allowing a state to enforce a
117 Docket 1 at 24. See Docket 12-1 at 7; Docket 38-1 at 7; Docket 41 at 5; Docket 97 at 7.
118 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
119 Edmo v. Corizon, Inc., 935 F.3d 757, 784 (9th Cir. 2019) (quoting Indep. Training &
Apprenticeship Program v. Cal. Dep’t of Indus. Rels., 730 F.3d 1024, 1032 (9th Cir. 2013)).
120 See Kuskokwim I, 608 F. Supp. 3d at 809-13. The only argument offered by the State as to a
permanent injunction is one sentence, that “because the United States and the Intervenors
cannot succeed on the merits, their requests for a permanent injunction should likewise be
denied.” Docket 73 at 34.
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regulation that is preempted by federal law in violation of the Supremacy Clause
is neither equitable nor in the public interest.121
CONCLUSION
In light of the foregoing, the Court DENIES the State’s Cross-Motion for
Summary Judgment at Docket 73 and GRANTS the United States’ Motion for
Summary Judgment at Docket 70.
The State is ENJOINED from reinstating ADF&G’s 2021 or 2022 orders and
from taking similar actions interfering with or in contravention of federal orders
addressing Title VIII of ANILCA and applicable regulations on the Kuskokwim River
within the Yukon Delta National Wildlife Refuge.
The Clerk of Court shall enter a final judgment accordingly.
DATED this 29th day of March, 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
121 Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (“[I]t is clear that it would
not be equitable or in the public’s interest to allow the state . . . to violate the requirements of
federal law, especially when there are no adequate remedies available.” (citation omitted)).
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