State of Alaska v. Bernhardt et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STATE OF ALASKA,
Plaintiff,
v.
DAVID L. BERNHARDT, in his official
capacity as Secretary of the U.S.
Department of the Interior, et al.,
Federal Defendants,
and
ALASKA WILDLIFE ALLIANCE, et al.,
Intervenor-Defendants.
Case No. 3:17-cv-00013-SLG
CONSOLIDATED
SAFARI CLUB INTERNATIONAL,
Plaintiff,
v.
DAVID L. BERNHARDT, in his official
capacity as Secretary of the U.S.
Department of the Interior, et al.,
Federal Defendants,
and
ALASKA WILDLIFE ALLIANCE, et al.,
Intervenor-Defendants.
Case No. 3:17-cv-00014-SLG
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
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This is a consolidated action in which the State of Alaska and Safari Club
International seek invalidation of portions of the Fish and Wildlife Service’s Kenai
Rule that prohibit certain hunting activities on the Kenai National Wildlife Refuge.1
The challenged portions of the Kenai Rule codified restrictions on hunting within
the Skilak Wildlife Recreation Area, prohibited certain firearms discharges along
the Kenai and Russian rivers, and clarified that hunting brown bears over bait was
not permitted on the Kenai National Wildlife Refuge.2 Briefing on the merits was
completed on August 20, 2020.3 Oral argument was held on September 25, 2020.4
BACKGROUND
The Kenai National Wildlife Refuge (“Kenai NWR”) is a 1.92 million-acre
refuge located on the Kenai Peninsula in Southcentral Alaska.5 The refuge was
originally called the Kenai National Moose Range and was created in 1941 for the
purpose of “protecting the natural breeding and feeding range of the giant Kenai
moose on the Kenai Peninsula, which in this area presents . . . an unusual
1 81 Fed. Reg. 27030; codified at 50 C.F.R. § 36.39.
2 See 50 C.F.R. § 36.39(i)(5)–(6); 81 Fed. Reg. 27030; 81 Fed. Reg. 27043–48; FWL013575–
80.
3 Docket 202.
4 Docket 215.
5 FWL013562. “FWL” refers to the U.S. Fish and Wildlife Service’s administrative record, which
is filed at Docket 207.
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opportunity for the study in its natural environmental of the practical management
of a big game species that has considerable local economic value.”6
The refuge was expanded and renamed as the Kenai NWR by Congress in
1980 with the passage of the Alaska National Interest Lands Conservation Act
(“ANILCA”).7 ANILCA also expanded the purposes of the Kenai NWR, identifying
them as follows:
(1) To conserve fish and wildlife populations and habitats in
their natural diversity including, but not limited to, moose, bears,
mountain goats, Dall sheep, wolves and other furbearers,
salmonoids and other fish, waterfowl and other migratory and
nonmigratory birds;
(2) To fulfill the international treaty obligations of the United
States with respect to fish and wildlife and their habitats;
(3) To ensure, to the maximum extent practicable and in a
manner consistent with the purposes set forth in (1), above,
water quality and necessary water quantity within the Refuge;
(4) To provide, in a manner consistent with (1) and (2), above,
opportunities for scientific research, interpretation,
environmental education, and land management training; and
(5) To provide, in a manner compatible with these purposes,
opportunities for fish and wildlife-oriented recreation.8
In 1982, the United States Fish and Wildlife Service (“the Service”) and the
State of Alaska (“the State”) entered into a Master Memorandum of Understanding
6 FWL013562 (quoting Exec. Order No. 8979, 6 F.R. 6471 (Dec. 18, 1941)).
7 Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16 U.S.C. § 3101 et. seq.); FWL004688.
8 Pub. L. No. 96-487 § 303(4)(B).
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(“MMU”) which “reflects the general policy guidelines within which the two agencies
agree to operate” with respect to the Kenai NWR.9 The MMU lays out a
cooperative approach under which the Service and the State agree “[t]o consult
with each other when developing policy and legislation which affect the attainment
of wildlife resource management goals and objectives or management plans.”10 In
the MMU, the State agreed “[t]o recognize the Service as the agency with the
responsibility . . . on Service lands in Alaska to conserve fish and wildlife and their
habitats and regulate human use.”11 The MMU also states that “the taking of fish
and wildlife . . . on Service lands in Alaska is authorized in accordance with
applicable State and Federal law unless State regulations are found to be
incompatible with documented Refuge goals, objectives, or management plans.”12
ANILCA instructs the United States Secretary of the Interior (“Secretary”) to
“prepare, and from time to time, revise, a comprehensive conservation plan . . . for
each refuge.”13 Between 1980 and 1985, the Service worked with the public and
the State to develop the first Comprehensive Conservation Plan (“CCP”) for the
9 FWL001551.
10 FWL001553.
11 FWL001552.
12 FWL001553–54.
13 Pub. L. No. 96-487 § 304(g)(1).
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Kenai NWR.14 The first CCP was completed in 1985.15 It offered broad
management guidance and provided that “[t]he entire refuge would remain open
to hunting and trapping, except for areas where public safety is a concern” as well
as “the Skilak Loop Special Management Area, where special restrictions on
hunting and trapping will apply.”16 The CCP provided that the Skilak Loop Special
Management Area “would be managed to provide enhanced opportunities for
wildlife viewing.”17 In 1988, this area was renamed the Skilak Wildlife Recreation
Area (“Skilak WRA”).18
Pursuant to the CCP, the Service created a species management plan for
the Skilak area to provide “wildlife viewing and interpretation opportunities.”19 In
1987, the Alaska Board of Game (“BOG”) adopted regulations that had been
jointly proposed by the Service and the Alaska Department of Fish and Game; the
regulations prohibited trapping, allowed taking of small game by archery, and
14 FWL000980–82.
15 FWL014229; FWL000982.
16 FWL014224.
17 FWL000982.
18 FWL013571.
19 FWL000982.
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provided for a moose hunt by special permit within the Skilak area.20 The Service
developed public use facilities for the Skilak WRA over the following years.21
In 1993, the Service issued nationwide refuge-specific hunting and fishing
regulations.22 A section titled “General provisions regarding hunting on wildlife
refuges” stated that the “unauthorized distribution of bait and the hunting over bait
is prohibited on wildlife refuge areas. (Baiting is authorized in accordance with
State regulations on national wildlife refuges in Alaska).”23 The regulations further
provided that “Alaska refuges are opened to hunting, fishing and trapping pursuant
to the Alaska National Interest Lands Conservation Act.”24
In 1997, Congress passed the National Wildlife Refuge System
Improvement Act (“Improvement Act”).25 The Improvement Act consolidated all
the various wildlife refuges, wildlife ranges, game ranges, and other areas for the
protection of fish and wildlife into the National Wildlife Refuge System.26 The
system is administered by the Director of the Fish and Wildlife Service. A provision
20 FWL000982.
21 FWL000982, FWL013571.
22 58 Fed. Reg. 5064–5100.
23 58 Fed. Reg. 5065 (codified at 50 C.F.R. § 32.2(h)).
24 58 Fed. Reg. 5069 (codified at 50 C.F.R. § 32.21).
25 Codified at 16 U.S.C. §§ 668dd–668ee.
26 16 U.S.C. § 668dd(a)(1).
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in the Improvement Act states that in the event of a conflict between provisions in
the Improvement Act and ANILCA, “the provision in [ANILCA] shall prevail.”27
The Improvement Act strives for consistency between state and federal
hunting regulations, stating that federal regulations “shall be, to the extent
practicable, consistent with State fish and wildlife laws, regulations, and
management plans.”28 The Act also provides that “compatible wildlife-dependent
recreational uses are the priority general public uses of the [National Wildlife
Refuge] System and shall receive priority consideration in refuge planning and
management.”29 A “compatible use” is defined as “a wildlife-dependent
recreational use or any other use of a refuge that, in the sound professional
judgment of the Director [of the Fish and Wildlife Service], will not materially
interfere with or detract from the fulfillment of the mission of the [National Wildlife
Refuge] System or the purposes of the refuge.”30 The Improvement Act
additionally provides that “when the Secretary [of the Interior] determines that a
proposed wildlife-dependent recreational use is a compatible use within a refuge,
that activity should be facilitated, subject to such restrictions or regulations as may
27 Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory construction note regarding 16
U.S.C. § 668dd with respect to Alaska).
28 16 U.S.C. § 668dd(m).
29 16 U.S.C. § 668dd(a)(3)(C).
30 16 U.S.C. § 668ee(1).
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be necessary, reasonable, and appropriate.”31 However, the Improvement Act
also instructs the Director of the Fish and Wildlife Service not to “initiate or permit
a new use of a refuge or expand, renew, or extend an existing use of a refuge,
unless the Secretary has determined that the use is a compatible use and that the
use is not inconsistent with public safety.”32
In 2007, the Service issued a Compatibility Determination (“CD”) pursuant
to the Improvement Act that found black bear baiting for the purposes of hunting
was a compatible use of the Kenai NWR.33 Black bear baiting was permitted by
federal regulation in accordance with state regulations.34 The CD was limited only
to baiting black bears;35 brown bear baiting in the Game Management Unit that
contains the Kenai NWR was not allowed under state law at that time.
In 2007, the Service also published a Revised Final Management Plan for
the Skilak WRA.36 The Service did so after completing a draft plan and
accompanying draft environmental assessment (“EA”) in 2006 pursuant to the
National Environmental Protection Act (“NEPA”) that resulted in a Finding of No
31 16 U.S.C. § 668dd(a)(3)(D).
32 16 U.S.C. § 668dd(d)(3)(A)(i).
33 FWL000071–72.
34 FWL000066 (“baiting is authorized in accordance with State regulations on national wildlife
refuges in Alaska”) (citing 50 C.F.R. § 32.2(h)).
35 FWL000069.
36 FWL000976.
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Significant Impact.37 Although the Service considered opening the Skilak WRA to
the hunting of small game as well as lynx, coyote, red fox, and squirrel, that
proposal was ultimately rejected.38 Instead, the final plan maintained the Skilak
WRA as “a special area . . . that would be managed to increase opportunities for
wildlife viewing, and environmental education and interpretation.”39 However, the
Service did approve a limited “youth-only” small game firearms hunt.40 That same
year, the BOG adopted State regulations that were consistent with the Revised
Final Management Plan.41
In 2010, the Service issued an updated CCP for the Kenai NWR.42 The
Service completed an Environmental Impact Statement (“EIS”) regarding the CCP
pursuant to NEPA.43 The EIS considered five different alternatives; in each
alternative, the Skilak WRA would be “managed to provide enhanced opportunities
for wildlife viewing, environmental education, interpretation, and photography.”44
37 FWL001042–59.
38 FWL001043.
39 81 Fed. Reg. 27038; FWL013570.
40 81 Fed. Reg. 27038; FWL001044–55, 013570.
41 81 Fed. Reg. 27038; FWL013570.
42 FWL001068; Section 304(g) of ANILCA provides that CCPs should be revised “from time to
time.”
43 81 Fed. Reg. 27033; FWL013565.
44 FWL000303.
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In 2013, the BOG proposed new regulations that would allow hunting brown
bears over registered black bear baiting stations in the Kenai NWR and open the
Skilak WRA to the hunting of wolves, coyote, and lynx in late fall and winter.45 In
response, the Service sent a letter to the BOG advocating against these proposed
changes, explaining that it considered “reducing predator populations in support of
intensive management program objectives” to be “the underlying reason for the
Board’s actions” and that such objectives “fundamentally differ” from the Service’s
mandates.46 The letter also listed regulatory measures the Service intended to
take if the BOG adopted the proposals. These measures would include restricting
“the legal take of animals over bait to black bears under terms and conditions of a
Special Use Permit” and promulgating “regulations maintaining existing restrictions
on hunting and trapping in the [Skilak] WRA.”47
The BOG adopted the regulations, which became effective on July 1, 2013.48
The Service responded by closing the Skilak WRA to hunting and trapping on
November 10, 2013, just before the State-authorized late fall and winter hunting
season began.49 The Service also blocked the BOG’s authorization of brown bear
45 81 Fed. Reg. 27038–40; FWL013570–72.
46 FWL002113.
47 FWL002115.
48 81 Fed. Reg. 27038; FWL013570.
49 78 Fed. Reg. 66061–62.
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baiting in the Kenai NWR, although the BOG regulation became effective
elsewhere on the Kenai Peninsula.50
On May 21, 2015, the Service published a proposed rule, referred to here
as the Kenai Rule.51 Among other provisions, the proposed rule would:
(2) Codify restrictions on hunting and trapping within the Skilak
Wildlife Recreation Area recently established in accordance
with the procedures set forth at 50 CFR 36.42 (public
participation and closure procedures);
(3) Expand a prohibition on the discharge of firearms to include
areas of intensive public use along the Kenai and Russian
rivers; [and]
(4) Clarify the intent of an existing regulation addressing hunting
over bait.52
Regarding the Skilak WRA, the “proposed rule would codify the Service’s
November 2013 permanent closure . . . to hunting and trapping,” with exceptions
for the “historical State regulations . . . of hunting of small game with bow and arrow
and falconry, moose hunting by permit, and youth-only firearm hunting of small
game.”53 The closure was “in response to action taken by the Alaska Board of
Game . . . which opened the Skilak Wildlife Recreation Area to taking of lynx,
50 81 Fed. Reg. 27036–37; FWL013568–69.
51 80 Fed. Reg. 29277–86; FWL008725–34.
52 80 Fed. Reg. 29278; FWL008726.
53 80 Fed. Reg. 29279; FWL008727.
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coyote, and wolf within the area under State hunting regulations.”54 The Service
proposed the regulation because it “determined that this hunting of lynx, coyote,
and wolf negatively impacts meeting objectives in approved Refuge management
plans to provide enhanced wildlife viewing, environmental education, and
interpretation opportunities in the area.”55
The proposed rule would also “establish a prohibition on the discharge of
firearms within ¼ mile of the Kenai and Russian rivers (with the exception of
firearms used for dispatching legally trapped animals and use of shotguns for
waterfowl hunting) . . . .”56 This proposed change was intended “to help ensure
protection of public safety” on “river corridors [that] receive intensive recreational
use for sport fishing from shorelines and boats during open seasons for salmon
and resident fish . . . and, on the upper Kenai River for river floating, from late
spring to freeze-up.”57
With respect to bear baiting, the proposed rule would “clarify an existing
regulation which allows hunting over bait for the harvest of black bears under the
terms and conditions of a special use permit.”58 The proposal explained that “[a]ll
54 80 Fed. Reg. 29280; FWL008728.
55 80 Fed. Reg. 29280; FWL008728.
56 80 Fed. Reg. 29279; FWL008727.
57 80 Fed. Reg. 29280; FWL008728.
58 80 Fed. Reg. 29280; FWL008728.
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other hunting over bait is in effect prohibited on the Refuge,” and that “[t]his
clarification is necessary in light of recent action by the Alaska Board of Game to
allow for the take of brown bears at registered black bear baiting stations.”59
The Service concluded that it considered the proposed Kenai Rule to
constitute a categorical exclusion under NEPA pursuant to the “Department of the
Interior policy in part 516 of the Departmental Manual,” which categorically
excludes “[t]he issuance of special regulations for public use of Service-managed
land, which maintain essentially the permitted level of use and do not continue a
level of use that has resulted in adverse environmental effects.”60 The Service
stated that the rulemaking supported “the management direction identified through
approved Refuge management plans, including the 2010 Kenai NWR Revised
CCP and the 2007 Kenai NWR Skilak Recreation Area Revised Final Management
Plan.”61 The Service referenced the EIS it had prepared for the 2010 CCP and the
EA it had prepared for the Skilak WRA management plan it had completed in
October 2006; both documents were prepared after notice and public comment.62
During the comment period for the proposed Kenai Rule, the Service
received 28 comments from individuals, organizations including Safari Club
59 80 Fed. Reg. 29280; FWL008728.
60 80 Fed. Reg. 29281; FWL008729 (citing 516 Dept. Man. 8.5(C)(3)).
61 80 Fed. Reg. 29281; FWL008729.
62 80 Fed. Reg. 29281–82; FWL008729–30.
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International and the Humane Society the United States (“Humane Society”), and
the State of Alaska.63 The State explained that its “overarching concern with the
proposed regulation package is the limited, or in many cases, absence of
justification provided in the Notice.”64 The State opposed the Skilak WRA
restrictions on hunting and trapping, maintaining that “the Service is favoring one
wildlife dependent recreational use (wildlife viewing) over another (hunting) when
both are compatible uses that can be effectively managed to avoid user conflicts”
and that “no data has been provided to support this continued closure.”65 The
State also opposed the “expansion of the prohibition [on discharging firearms] for
the entire length of the Kenai River adjacent to refuge lands and from the Russian
River to the Russian River Falls.”66 The State explained that “the Notice does not
explain why discharging firearms for waterfowl and small game hunting does not
pose a safety hazard when the use of firearms to take big game apparently does.”67
The State also protested the bear baiting proposal. It maintained that the
proposal was not a mere clarification of existing bear baiting rules because “[t]he
Notice neglects to inform the public that baiting is allowed on all refuges in Alaska
63 FWL008912—009165.
64 FWL008984.
65 FWL008986.
66 FWL008988.
67 FWL008988.
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in accordance with state regulations,” and that “at the time the existing Kenai
Refuge regulation was promulgated, state regulations only authorized black bear
baiting.”68 Hence, the State asserted that “[r]elying on the existing regulation as
justification to prohibit this newly authorized use is inconsistent with Refuge law,
regulation, and policy.”69 The State’s nine pages of comments did not reference
NEPA.
Safari Club International submitted comments which opposed expanding the
prohibition of firearms discharges along the Kenai and Russian rivers, agreeing
with the State that “[t]here are no data provided that document a public safety
issue, and there is no resource basis for the refuge to enact this prohibition.”70
Safari Club International also opposed the hunting and trapping restrictions in the
Skilak WRA, asserting the Service “provided no data to demonstrate an impact to
wildlife viewing in this area” and that the “preemptive closures of hunting and
trapping opportunities in favor of wildlife viewing are unnecessary and inconsistent
with refuge management mandates” in the Improvement Act.71 Safari Club
International also opposed the proposal to continue the ban on brown bear baiting
because “[t]he biological information the [Service] used to justify prohibiting this
68 FWL008989 (citing 50 C.F.R. § 32.2(h)).
69 FWL008989.
70 FW00L8928.
71 FWL008928–29.
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take of brown bear was inaccurate in terms of comparison to population density in
other areas and relationship of conservative harvests to long-term sustainability.”72
Safari Club International’s comments did not reference NEPA.
The Humane Society submitted comments requesting a supplemental EA or
an EIS pursuant to NEPA that would consider “all the direct, indirect and
cumulative impacts to wildlife from the proposed changes to the hunting and
trapping regulations.”73
On May 5, 2016, the Service published the final Kenai Rule.74 The Kenai
Rule includes all of the relevant portions of the proposed rule: a prohibition on
hunting within the Skilak WRA with exceptions for moose hunts by special permit,
hunting small game by archery and falconry, and limited youth-only small game
firearms hunt;75 a prohibition on hunting animals by bait in the Kenai NWR other
than black bears by special permit;76 and a prohibition on discharging firearms
within ¼ mile of the Kenai and Russian rivers with exceptions for dispatching
72 FWL008929–30.
73 FWL010054.
74 81 Fed. Reg. 27030; 50 C.F.R. § 36.39; FWL013562.
75 81 Fed. Reg. 27045; 50 C.F.R. § 36.39(i)(6); FWL013577.
76 81 Fed. Reg. 27045; 50 C.F.R. § 36.39(i)(5)(ii); FWL013577.
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lawfully trapped game, using shotguns to hunt waterfowl and small game, and
taking game in defense of life and property.77
As it had done with the proposed rule, the Service determined that the Kenai
Rule constituted a categorical exclusion under NEPA, because it was considered
“[t]he issuance of special regulations for public use of Service-managed land,
which maintain essentially the permitted level of use and do not continue a level of
use that has resulted in adverse environmental effects” under the Department of
the Interior departmental manual.78 The Service additionally determined that the
Kenai Rule constituted a categorical exclusion because the rule is “technical and
procedural in nature, and the environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis.”79 The Service again
explained that the Kenai Rule “supports the Service’s management direction
identified through . . . the 2010 Kenai NWR revised CCP and the 2007 Kenai NWR
Skilak WRA revised final management plan.”80
In its response to the Humane Society’s comment, the Service explained its
categorical exclusion determination: “This rulemaking will result in small
77 81 Fed. Reg. 27045; 50 C.F.R. § 36.39(i)(5)(i); FWL013577.
78 81 Fed. Reg. 27043 (citing 516 Dept. Man. 8.5(C)(3)
(www.doi.gov/sites/doi.gov/files/elips/documents/516-dm-8-chapter-final-7-29-20.pdf));
FWL013575.
79 81 Fed. Reg. 27043 (citing 43 C.F.R. § 46.210); FWL013575.
80 81 Fed. Reg. 27043; FWL013575.
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incremental changes in public use of the Refuge, both increasing and decreasing
use, but overall will maintain permitted levels of use and will not continue a level
of use that has resulted in adverse environmental impacts.”81
In 2016, the Service and the Department of the Interior also issued a rule
amending national wildlife refuge regulations.82 The rule banned brown bear
baiting in all Alaska refuges.83 The rule also stated:
We define “natural diversity” in regulation based on the
legislative history from ANILCA. Natural diversity means
the existence of all fish, wildlife, and plant populations
within a particular wildlife refuge system unit in the
natural mix and in a healthy condition for the long-term
benefit of current and future generations. Managing for
natural diversity includes avoiding emphasis of
management activities favoring some species to the
detriment of others and assuring that habitat diversity is
maintained through natural means, avoiding artificial
developments and habitat manipulation programs
whenever possible.84
In 2017, Congress vacated this rule under its authority in the Congressional
Review Act.85 Congress did not vacate the Kenai Rule.
The State of Alaska and Safari Club International each filed a complaint in
this Court challenging the Kenai Rule, seeking declaratory relief, injunctive relief,
81 81 Fed. Reg. 27033; FWL013565.
82 81 Fed. Reg. 52247.
83 81 Fed. Reg. 52252.
84 81 Fed. Reg. 52252.
85 Pub. L. No. 115-20, 131 Stat. 86 (2017); 82 Fed. Reg. 52009.
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and vacatur of the rule.86 The cases were consolidated into this action on January
3, 2018.87 On January 6, 2020, the State and Safari Club International filed their
motion for summary judgment.88 Federal Defendants filed a cross-motion for
summary judgment on March 9, 2020.89 Alaska Wildlife Alliance and several other
environmental organizations moved to intervene as defendants on February 8,
2017.90 The motion was granted on May 3, 2017.91 The Intervenor-Defendants
filed a cross-motion for summary judgment on March 16, 2020.92
86 Docket 1 at 45–46, ¶¶ A-I; Case No. 3:17-cv-00014, Docket 1 at 48–49, ¶¶ 1–11; Case No.
3:17-cv-00026, Docket 1 at 36, ¶¶ A–D. Plaintiffs also challenged a separate rule issued by the
Service that was invalidated by Presidential approval of a joint resolution during the course of
this litigation. Docket 55. Plaintiffs additionally challenge a rule propagated by the National
Park Service that is not at issue in the instant cross-motions for summary judgment.
87 Docket 124. A separate case brought by Alaska Professional Hunters Association,
Sportsmen’s Alliance Foundation, Joey Klutsch, and Gilbert Huntington had been consolidated
into this action but was dismissed as moot on July 8, 2020. Docket 198.
88 Docket 170.
89 Docket 177. The named Federal Defendants are David Bernhardt, in his official capacity as
U.S. Secretary of the Interior; Mitch Ellis, in his official capacity as Chief of Refuges for the
Alaska Region of the U.S. Fish and Wildlife Service; Gregory Siekaniec, in his official capacity
as Alaska Regional Director of the U.S. Fish and Wildlife Service; Aurelia Skipworth, in her
official capacity as Director of U.S. Fish and Wildlife Service; Joel Hard, in his official capacity
as acting Alaska Regional Director of the National Park Service; Margaret Everson, in her
official capacity as acting Director of the National Park Service; U.S. Fish and Wildlife Service;
National Park Service; and U.S. Department of the Interior.
90 Docket 6. Intervenor-Defendants are Alaska Wildlife Alliance; Alaskans For Wildlife; Friends
of Alaska Wildlife Refuges; Denali Citizens Council; Copper County Alliance; Kachemak Bay
Conservation Society; Defenders of Wildlife; National Parks Conservation Association; National
Wildlife Refuge Association; Northern Alaska Environmental Association; The Wilderness
Society; Wilderness Watch; The Sierra Club; Center for Biological Diversity; and The Humane
Society of the United States.
91 Docket 54.
92 Docket 184.
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JURISDICTION
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
which “confer[s] jurisdiction on federal courts to review agency action, regardless
of whether the Administrative Procedure Act of its own force may serve as a
jurisdictional predicate.”93
LEGAL STANDARD
Plaintiffs bring their claims pursuant to the Administrative Procedure Act.94
Under that statute, a reviewing court shall not set aside an agency's decision
unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.”95 Agency action is arbitrary and capricious if it
relie[s] on factors which Congress has not intended it to consider,
entirely fail[s] to consider an important aspect of the problem,
offer[s] an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it c[an]not be
ascribed to a difference in view or the product of agency expertise.96
A court’s review of whether an agency action is arbitrary and capricious should
be “searching and careful,” but “narrow,” as a court may not substitute its
93 Califano v. Sanders, 430 U.S. 99, 105 (1977).
94 Docket 60 at 46, ¶ C.
95 5 U.S.C. § 706(2)(A).
96 Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1034 (9th Cir. 2019) (alterations in
original) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43
(1983)).
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judgment for that of the administrative agency.97 Courts will generally “uphold
agency decisions so long as the agencies have ‘considered the relevant factors
and articulated a rational connection between the factors found and the choices
made.’”98 “Agency action is ‘not in accordance with the law’ when it is in conflict
with the language of the statute relied upon by the agency.”99 “Whether agency
action is ‘not in accordance with law’ is a question of statutory interpretation,
rather than an assessment of reasonableness in the instant case.”100
DISCUSSION
I. National Environmental Protection Act
The National Environmental Protection Act (“NEPA”) established the
Council on Environmental Quality (“CEQ”) and created procedures that require
“that federal agencies take a ‘hard look’ at the environmental consequences of
their actions.”101 NEPA requires that agencies prepare an environmental impact
statement (“EIS”) for all “major Federal actions significantly affecting the quality of
97 Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).
98 Protect Our Cmtys. Found., 939 F.3d at 1034 (quoting City of Sausalito v. O’Neill, 386 F.3d
1186, 1206 (9th Cir. 2004)).
99 City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007).
100 Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw. Envtl. Advocates v. U.S.
Envtl. Prot. Agency, 537 F.3d 1006, 1014 (9th Cir. 2008)).
101 California v. Norton, 311 F.3d 1162, 1175 (9th Cir. 2002) (quoting Metcalf v. Daley, 214 F.3d
1135, 1141 (9th Cir. 2000)); 42 U.S.C. §§ 4321–4370m-12.
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the human environment.”102 “‘Human environment,’ in turn, is defined in NEPA’s
implementing regulations as ‘the natural and physical environment and the
relationship of people with that environment.”103 When an action “is not likely to
have significant effects or the significance of the effects is unknown,” the CEQ’s
regulations provide that the “agency shall prepare an environmental assessment
for [the] proposed action.”104 An EA must “provide sufficient evidence and analysis
for determining whether to prepare an environmental impact statement or a finding
of no significant impact.”105
“For efficiency,” the CEQ also instructs agencies to “identify . . . categories
of actions that normally do not have a significant effect on the human environment,
and therefore do not require preparation of an environmental assessment or
environmental impact statement.”106 Such actions are termed “categorical
exclusions.” “However, an agency adopting a categorical exclusion must ‘provide
for extraordinary circumstances in which a normally excluded action may have a
102 42 U.S.C. § 4332(C). Accord Metcalf, 214 F.3d at 1142.
103 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1114 (9th Cir. 2002), abrogated on
other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) (quoting
40 C.F.R. § 1508.14).
104 40 C.F.R. § 1501.5(a).
105 40 C.F.R. § 1501.5(c)(1).
106 40 C.F.R. § 1501.4(a).
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significant environmental effect,’” which triggers the requirement of preparation of
an EIS or an EA.107
“When an agency decides to proceed with an action in the absence of an
EA or EIS, the agency must adequately explain its decision” and “cannot avoid its
statutory responsibility under NEPA merely by asserting than an activity it wishes
to pursue will have an insignificant effect on the environment.”108 Instead, it “must
supply a convincing statement of reasons why potential effects are insignificant.”109
In reviewing whether an agency’s action is arbitrary or capricious, a court must
look to “whether the decision was based on a consideration of the relevant factors
and whether there has been clear error of judgment.”110 Agency determinations
based on consideration of the proper factors are entitled to deference.111
a. Applicability
As a threshold matter, the Court must determine whether NEPA procedures
apply to the challenged aspects of the Kenai Rule. Federal Defendants maintain
that NEPA does not apply to the Skilak WRA closure or the brown bear baiting rule
because each of those provisions “simply maintain the environmental status quo
107 Norton, 311 F.3d at 1168 (quoting 40 C.F.R. § 1508.4).
108 Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999) (quoting
Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986)).
109 Id. (quoting The Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir. 1985)).
110 Id. (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)).
111 Id.
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on the Kenai refuge that has been in place for three decades.”112 Plaintiffs respond
by asserting that “NEPA procedures are required here . . . because the Kenai Rule
reduces the effectiveness of State wildlife management by preempting BOG-
authorized harvest opportunities and methods of take and restricting the use of
firearms.”113 Plaintiffs maintain this preemption of “State wildlife management will
have a demonstrable impact on the physical environment,” and thus, NEPA
procedures apply.114
In Kootenai Tribe of Idaho v. Veneman, the Ninth Circuit considered whether
NEPA applied to the Forest Service’s adoption of a Roadless Rule on national
forest lands.115 The Court recognized its prior decisions in which it had held that
NEPA procedures did not apply when the agency action “maintain[ed] the
environmental status quo.”116 But the Court determined that “the reduction in
human intervention that would result from the Roadless Rule actually does alter
112 Docket 178 at 48.
113 Docket 189 at 37–38.
114 Docket 189 at 38.
115 313 F.3d at 1113–15.
116 Id. at 1114 (citing Burbank Anti–Noise Grp. v. Goldschmidt, 623 F.2d 115, 116–17 (9th
Cir.1981)) (NEPA does not apply when agency financed purchase of an airport that was already
built). Accord Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337, 1343–44 (9th Cir. 1995) (NEPA does
not apply when agency transferred title to wetlands already used for grazing); Bicycle Trails
Council of Marin v. Babbitt, 82 F.3d 1445, 1448–49 (9th Cir. 1996) (closure of bicycle trails did
not trigger need for an EIS).
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the environmental status quo” such that NEPA compliance was required.117 “By
altering how the Forest Service manages inventoried roadless areas, the Roadless
Rule will have a demonstrable impact on the physical environment.”118
California ex rel. Lockyer v. U.S. Department of Agriculture involved the
same Roadless Rule.119 The agency replaced the Roadless Rule with the State
Petitions Rule, which allowed states a more active forest management role. The
agency maintained the State Petitions Rule was a procedural rule and fell within
the categorical exclusion for “Rules . . . to establish . . . administrative procedures,”
such that no EIS was necessary.120 The State of California and several
environmental organizations maintained that an EIS was required. The District
Court for the Northern District of California agreed, reasoning that the State
Petitions Rule “substantively repealed the Roadless Rule . . . eliminated the
uniform nationwide protections for roadless areas, . . . and reinstated the less
protective, varied forest plans . . . .”121 Because “eliminating a major program
117 Kootenai Tribe of Idaho v. Veneman, 313 F.3d at 1115.
118 Id.
119 459 F. Supp. 2d 874 (N.D. Cal. 2006).
120 Id. at 894 (emphasis in original).
121 Id. at 898.
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triggers the obligation to perform environmental analysis,” the categorical
exclusion did not apply.122
In California v. Bureau of Land Management, the District Court for the
Northern District of California considered whether NEPA applied to a decision by
the Bureau of Land Management (“BLM”) to repeal a rule regulating hydraulic
fracking.123 BLM had issued the final rule, but the rule had never gone into effect
due to a preliminary injunction.124 The plaintiffs maintained that because BLM had
“previously reported environmental benefits” the rule would cause, “any action to
rescind these benefits required a ‘hard look’ and an EIS, because it could
significantly affect the environment.”125 BLM maintained “that it was not required
to conduct a NEPA analysis because the Repeal rescinded a rule that had never
gone into effect.”126 The district court agreed with BLM, reasoning that “[b]ecause
enactment of the 2015 Rule was enjoined before it ever went into effect, its
‘benefits’ and ‘protections’ remained hypothetical and unrealized at the time the
Repeal was promulgated,” and therefore, “the environmental status quo never
122 Id. (citing Andrus v. Sierra Club, 442 U.S. 347, 363 n.22 (1979)).
123 Case No. 18-cv-00521-HSG, ___ F. Supp. 3d ___, 2020 WL 1492708 (N.D. Cal. Mar. 27,
2020).
124 Id. at *1–2.
125 Id. at *14.
126 Id.
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changed.”127 The district court distinguished Lockyer on the ground that the
Roadless Rule in Lockyer had been legally in effect for seven months before it was
enjoined, whereas the fracking rule had never gone into effect.128
Similarly, in National Wildlife Federation v. Espy the agency took title to a
ranch subject to a mortgage from a party who used it for grazing.129 The agency
later quitclaimed title to the bank who owned the mortgage. The bank in turn sold
the ranch to a third party who also used the land for grazing. Even though there
was a change in ownership, the Ninth Circuit held the environmental status quo
was unchanged because the activities on the land were the same.130
In the instant case, the Skilak WRA hunting restrictions and the brown bear
baiting prohibition maintained the exact same effects on the human environment
that had been in place for years. Unlike the agency actions in Kootenai Tribe and
Lockyer, the Skilak WRA hunting restrictions and the bear baiting rule did not result
in a “reduction in human intervention that would . . . alter the environmental status
quo” nor the “eliminat[ion of] a major program . . . .” Rather, with respect to those
two components of the Kenai Rule, this case is akin to both California v. BLM and
127 Id. at *15.
128 Id.
129 Nat’l Wildlife Fed. v. Espy, 45 F.3d 1337 (9th Cir. 1995).
130 Id. at 1343–44.
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National Wildlife Federation v. Espy in that these aspects of the Kenai Rule had
no effect on the human environment.
Plaintiffs’ contention that preemption of State regulations “reduces the
effectiveness of State wildlife management” and therefore, has “a demonstrable
impact on the physical environment” is not supported by the case law.131 As the
cases discussed above demonstrate, in order for an action to affect the human
environment, it must affect the environment on the ground. Plaintiffs have not
pointed to any case that requires an EA or an EIS based solely on a change in
who is enforcing the rules when the environmental status quo remains unchanged.
For the foregoing reasons, NEPA does not apply to either the Skilak WRA
restrictions or the brown bear baiting prohibition portions of the Kenai Rule.
However, the foregoing analysis does not apply to the portion of the Kenai
Rule that restricts firearm discharges along the Kenai and Russian rivers, which
was not previously in effect under either Federal or State law and is discussed
below.
b. Categorical Exclusions
Plaintiffs challenge the Service’s reliance on categorical exclusions. Federal
Defendants emphasize that during the comment period, Plaintiffs did not challenge
131 Docket 189 at 37–38.
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the Service’s determination that the Kenai Rule fell within a categorical
exclusion.132
“Persons challenging an agency’s compliance with NEPA ‘must structure
their participation so that it . . . alerts the agency to the [persons’] position and
contentions,’ in order to allow the agency to give the issue meaningful
consideration.”133 However, the Ninth Circuit “has declined to adopt ‘a broad rule
which would require participation in agency proceedings as a condition precedent
to seeking judicial review of an agency decision.’”134 Instead, it “has drawn a
distinction between situations in which NEPA plaintiffs submitted comments that
did not alert the agency to their concerns or failed to participate when the agency
looked into their concerns and situations in which plaintiffs allege procedural
violations of NEPA.”135 However, “the agency bears the primary responsibility to
ensure that it complies with NEPA, and an EA’s or an EIS’ flaws might be so
obvious that there is no need for a commentator to point them out specifically in
132 Docket 178 at 49–50.
133 Dept. of Trans. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (quoting Vt. Yankee Nuclear Power
Corp. v. Nat’l Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)) (holding that parties forfeited
objection that EA failed to consider proposed alternatives by not identifying alternatives during
EA’s public comment period).
134 ‘Ilio’ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006) (quoting Kunaknana v.
Clark, 742 F.2d 1145, 1148 (9th Cir. 1984)).
135 Id.
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order to preserve its ability to challenge a proposed action.”136 A flaw is “so
obvious” that it does not result in waiver “where the agency had independent
knowledge of the issues that concerned Plaintiffs.”137
Federal Defendants contend that Plaintiffs waived their NEPA challenges by
not raising them in their comments on the proposed Kenai Rule.138 They assert
that neither Plaintiffs “nor any other commenter said anything about categorical
exclusions or extraordinary circumstances in their comments on the proposed
Kenai Rule.”139 Because “Plaintiffs’ NEPA arguments are new objections that were
not presented in comments to the agency,” Federal Defendants maintain that they
“may not form a basis for reversal of an agency decision.”140
Plaintiffs respond by asserting that their challenge to the Service’s “improper
reliance on categorical exclusions to avoid conducting any environmental analysis”
is a “procedural claim,” and thus, they “had no obligation to preserve their NEPA-
based procedural claim in the rulemaking process via comments.”141
136 Dept. of Trans. v. Pub. Citizen, 541 U.S. at 765.
137 ‘Ilio’ulaokalani, 464 F.3d at 1092 (citing Friends of Clearwater v. Dombeck, 222 F.3d 552,
558–59 (9th Cir. 2000)) (holding plaintiffs did not waive objection by failing to raise it to agency
where “the record [was] replete with evidence that the Army recognized the specific shortfall of
the PEIS raised by Plaintiffs”)).
138 Docket 178 at 49–50.
139 Docket 178 at 50.
140 Docket 178 at 51 (quoting Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir. 1991)).
141 Docket 189 at 38 (emphasis in original) (citing ‘Ilio’ulaokalani, 464 F.3d at 1091–92).
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Determining whether a NEPA claim has been waived based on a failure to
raise the issue before the agency is not a particularly clear inquiry. Much of the
case law in this area involves allegations that an agency failed to consider a
specific alternative action or failed to examine certain scientific considerations in
an EA or an EIS; these objections are usually deemed waivable on appeal unless
first raised to the agency.142 On the other hand, the Ninth Circuit has cited
Northwest Environmental Defense Center v. Bonneville Power Administration143
as an example of a non-waivable claim, although it involved a different statute.144
The plaintiffs in Bonneville Power alleged a “procedural violation of a statute that
governs the public comment process.”145 The Ninth Circuit determined that in
contrast to “a specific factual contention regarding the substantive content of an
EIS,” the agency had “a duty to comply with public participation processes provided
142 See, e.g., Vt. Yankee Nuclear Power Corp., 465 U.S. 519, 553 (`978) (objections to EIS were
not preserved where plaintiffs objected to the draft EIS and “the agency continually invited
further clarification” but plaintiffs “declined to participate” in subsequent fact-finding related to
their objections); Public Citizen, 541 U.S. at 764–65 (plaintiffs “forfeited any objection to the EA
on the ground that it failed adequately to discuss potential alternatives” where they did not
identify any such alternatives in their comments); Havasupai Tribe v. Robertson, 943 F.2d 32,
34 (9th Cir. 1991) (holding that where plaintiff did not raise claim that EIS impermissibly failed to
consider effects on groundwater before agency, “such belatedly raised issues may not form a
basis for reversal of an agency decision”).
143 117 F.3d 1520 (9th Cir. 1997).
144 ‘Ilio’ulaokalani, 464 F.3d at 1092 (“Although the Bonneville Power case dealt with the
Northwest Power Act, that act is analogous to NEPA in that it ‘governs the public comment
process.’”).
145 Bonneville Power, 117 F.3d at 1535.
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for in the Northwest Power Act regardless of whether participants complain of
violations.”146
Plaintiffs cite to United States v. Coalition for Buzzards Bay; there, the First
Circuit held that a challenge to an agency’s application of a categorical exclusion
to its decision to eliminate tugboat escorts following an oil spill was “functional” and
hence not waived even though the issue had not been raised to the agency.147
The First Circuit distinguished its case from Public Citizen where “the dispute was
one about the substance of what evidence the agency should have considered” in
its environmental analysis.148 In Buzzards Bay, the agency’s reliance on a
categorical exclusion “permitted it to avoid any environmental analysis.”149
Defendants argue Buzzards Bay is distinguishable because Plaintiffs’ “NEPA claim
is not ‘so obvious’ that they were relieved of their obligation to present it to the
agency,” whereas the NEPA claim in Buzzards Bay implicated a fear of
environmental harm that was “not implausible.”150 However, Buzzards Bay was
not decided on the “so obvious” exception, but instead seems to suggest that the
146 Id. (citing Citizens for Clean Air v. EPA, 959 F.2d 839, 846–47 (9th Cir. 1992)).
147 644 F.3d 26, 35 (1st Cir. 2011).
148 Id.
149 Id. (emphasis in original).
150 Docket 201 at 32–33 (quoting Buzzards Bay, 644 F.3d at 36).
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First Circuit considers all objections to the use of categorical exclusions “functional”
and thus non-waivable.
On the other hand, in Alliance for The Wild Rockies v. Tidwell, the District
Court for the District of Montana held that the plaintiffs’ objection to the agency’s
reliance on a categorical exclusion was waived when the plaintiffs failed to
challenge the agency’s “no extraordinary circumstances” determination at the
agency level.151 The plaintiffs asserted that the agency’s no extraordinary
circumstances finding was marred by an inadequate soil analysis of the watershed
at issue; they had not raised their concern during the NEPA comment period.152
The district court determined that the plaintiffs “‘had some obligation to raise these
issues during the comment process,’” and “allowing the plaintiff[s] to raise the issue
on appeal places the agency at an unfair disadvantage.”153
The Court need not resolve the waiver issue here because even if Plaintiffs’
objection to the categorical exclusion should have been raised at the agency level,
“the agency bears the primary responsibility to ensure that it complies with NEPA,”
and the Service’s failure to “adequately explain its decision” is “so obvious that
there is no need for a commentator to point [it] out specifically in order to preserve
151 623 F. Supp. 2d 1198, 1206 (D. Mont. 2009) (quoting Havasupai, 943 F.2d at 34).
152 Id. at 1205.
153 Id. at 1206 (quoting Havasupai, 943 F.2d at 34).
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its ability to challenge” it.154 The Ninth Circuit has been clear that an “agency
cannot avoid its statutory responsibilities under NEPA merely by asserting that an
activity it wishes to pursue will have an insignificant effect on the environment”
such that the Service should have independent knowledge of this requirement.155
Rather than explain how the restriction on firearm discharges along the rivers is
“technical and procedural in nature,” why the “environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis,” or how it
“maintain[s] essentially the permitted level of use,”156 the Service merely “restated
the exclusion[s]” and “did not give sufficient reasons for its decision.”157 Reciting
the text of a categorical exclusion without elaboration or explanation does not
constitute the required “convincing statement of reasons” and does not allow the
Court to determine “whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.”158
c. Extraordinary Circumstances
154 ‘Ilio’ulaukalani, 464 F.3d at 1092. See also Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124,
1134–35 (9th Cir. 2011) (holding that agencies’ failure to discuss environmental impact of
proposed action “is a flaw ‘so obvious’ that there was no need for petitioners to point it out
specifically in order to preserve their ability to challenge the EA on this ground”).
155 Alaska Ctr. for the Env’t., 189 F.3d at 859.
156 81 Fed. Reg. 27043, FWL013575.
157 Alaska Ctr. for the Env’t, 189 F.3d at 859.
158 Id. (internal quotations omitted).
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The Service also “did not discuss whether an exception to the categorical
exclusion[s]” based on extraordinary circumstances applied to the firearm
discharge restriction.159 Plaintiffs point to the agency’s regulation that identifies as
an extraordinary circumstance “individual actions . . . that [h]ave highly
controversial environmental effects or involve unresolved conflicts concerning
alternative uses of available resources” and maintain that the Kenai Rule may meet
this criteria.160 The Service itself recognized the possibility of public controversy
in its outreach plan for the proposed rule, stating there that the Kenai Rule was
“expected to be moderately controversial as the State of Alaska and some affected
user groups will likely oppose some aspects of the rule.”161 Federal Defendants
point to this statement as evidence that the Service considered the possibility of
public controversy and so any failure to document its analysis in the Kenai Rule is
harmless.162 But the Kenai Rule itself does not contain the words “public
159 Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986) (holding that agency unreasonably
determined not to prepare EIS where it “failed to explain adequately its decision not to prepare
an environmental impact statement” and failed to discuss whether an exception applied).
160 Docket 190 at 45 (quoting 43 C.F.R. § 46.215(c)).
161 FWL004690. Federal Defendants also point to an e-mail which notes the “quiet roll-out” of
the proposed rule. See FWL008749 (copy of e-mail). It is not at all clear that the e-mail is
referring to public controversy regarding the substance of the rule as opposed to a lack of
surprise at the proposal because it explains that the quietness is assumed to be due to “the
thorough outreach Refuges did to inform all interested parties.” In any event, that the Service
received numerous comments from various parties contradicts the implication that the proposal
did not draw much controversy.
162 Docket 178 at 53 (citing Motor Vehicles Mfrs. Ass’n v. State Farm Mut., 463 U.S. 29, 43
(1983) (“We will, however, uphold a decision of less than ideal clarity if the agency’s path may
reasonable be discerned.”) (internal quotation omitted)).
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controversy” or “extraordinary circumstances.” Such an omission violates the
Service’s statutory duty to adequately explain its decision and is not harmless
because it is not apparent from the single statement in the outreach plan that the
Service conducted a thorough analysis of the issue.
Federal Defendants also assert that any error in the Service’s NEPA
procedures is harmless because the record shows on its face that no public
controversy exists. They contend that at most the comments show general
opposition to the firearm discharge restrictions, but that “[c]ontroversy does not
refer to the existence of opposition to a use” and instead is evidenced by a
“substantial dispute . . . as to [its] size, nature, or effect.”163 However, comments
received by the Service raised questions about how the rule would affect hunting
opportunities and pointed out that the “river corridor firearm restriction[]” was “not
previously evaluated in the CCP.”164 These comments are sufficient to raise the
possibility of public controversy. “When an agency decides to proceed with an
action in the absence of an EA or EIS, the agency must adequately explain its
decision.”165 Here, the Kenai Rule is silent on whether extraordinary
circumstances apply.
163 Docket 178 at 54 (quoting Bonneville Power, 117 F.3d at 1536).
164 FWL008986.
165 Alaska Ctr. for the Envt., 189 F.3d at 859 (quoting Jones v. Gordon, 792 F.2d 821, 828 (9th
Cir. 1986)).
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For the foregoing reasons, remand to the agency is warranted with respect
to the Kenai and Russian rivers firearms restriction so that the agency may
“provide a reasoned explanation for its reliance on the categorical exclusion[s],
including an explanation of why the exceptions do not apply” or provide a reasoned
explanation of whatever course it elects to pursue.166
II. Alaska National Interest Lands Conservation Act
The parties dispute the correct interpretation and interplay between several
sections of ANILCA. Section 304(a) requires that “[e]ach refuge shall be
administered by the Secretary of the Interior, subject to valid existing rights, in
accordance with the laws governing the administration of units of the National
Wildlife Refuge System, and this Act.” Section 304(g)(1) instructs the Secretary to
prepare CCPs for each national wildlife refuge. These plans “shall . . . designate
areas within the refuge according to their respective resources” and “specify the
uses within each such area which may be compatible with the major purposes of
the refuge.”167 Section 1314(a) states that “[n]othing in this Act is intended to
enlarge or diminish the responsibility and authority of the State of Alaska for
management of fish and wildlife on the public lands except as may be provided in
166 California v. Norton, 311 F.3d 1162, 1178 (9th Cir. 2002); see also Jones, 792 F.2d at 829
(“We emphasize, however, that we disagree with the district court’s conclusion that the Service
must prepare [an EIS] . . . Rather, the Service must consider the requirements of NEPA and
regulations thereunder, and must provide a reasoned explanation of whatever course it elects to
pursue.”).
167 Pub. L. No. 96-487 § 304(g)(3)(A)(i), (iii).
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title VIII of this Act.”168 Section 1314(b) states that “[e]xcept as specifically provided
otherwise by this Act, nothing in this Act is intended to enlarge or diminish the
authority of the Secretary over the management of the public lands.”169 Section
1314(c) prescribes that “[t]he taking of fish and wildlife in all conservation system
units . . . shall be carried out in accordance with the provisions of this Act and other
applicable State and Federal law.”170
Plaintiffs assert that under § 1314(a), “the State has authority for
management of fish and wildlife, including methods and means of hunting.”171
Thus, Plaintiffs maintain that “[t]he Kenai Rule violates ANILCA because the
[Service] tried to take over the State’s role in managing wildlife on public lands in
Alaska.”172 They urge that neither § 304(a) or § 304(g) override “the division of
authority in § 1314.”173 Plaintiffs additionally contend that the Service
168 16 U.S.C. § 3202(a).
169 16 U.S.C. § 3202(b).
170 16 U.S.C. § 3202(c).
171 Docket 189 at 49. In their opening brief, Plaintiffs also assert that the saving clause at § 815,
16 U.S.C. § 3202(a), prohibits the Service from regulating hunting for any reason other than
conservation. Docket 171 at 47–49. Section 815 provides that “[n]othing in this title shall be
construed as . . . authorizing a restriction on the taking of fish and wildlife for nonsubsistence
uses on the public lands . . . unless necessary for the conservation of healthy populations of fish
and wildlife.” However, “this title” refers to Title VIII which governs subsistence uses, whereas
CCPs are governed by Title III, and thus, § 815 does not apply here. At oral argument, Plaintiffs
agreed § 815 “is not applicable here.” Docket 218.
172 Docket 171 at 47.
173 Docket 189 at 50.
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“misconstrued the Kenai NWR’s purposes to justify the prohibition of hunting on
the Skilak WRA and along the Kenai and Russian rivers,” which created “a false
conflict between environmental education, hunting, and other wildlife-dependent
uses where no actual conflict exists.” 174
Federal Defendants respond that the Kenai Rule is in accordance with
ANILCA. Citing § 304(g), they assert that “Title III of ANILCA authorizes the
Secretary to accommodate incompatible refuge purposes by specifying different
areas of a refuge for different purposes.”175 Rather than giving the State plenary
authority over wildlife management on federal lands, “ANILCA maintains the
balance of authority whereby the Service only permits State management of
wildlife to the extent it does not conflict with federal management priorities.”176
Intervenor-Defendants add that rather than “granting the State plenary authority
over wildlife on federal lands,” § 1314 merely “reflect[s] Congress’s intent for
‘ordinary principles of conflict preemption to apply.’”177
The Supremacy Clause establishes that “the Law of the United States . . .
shall be the supreme Law of the Land . . . .”178 The parties do not dispute that
174 Docket 189 at 53.
175 Docket 178 at 33.
176 Docket 202 at 8.
177 Docket 185 at 19–20 (quoting Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 854 (9th Cir.
2002)).
178 U.S. Const. art. VI, cl. 2.
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Congress may, if it chooses, preempt State law regarding the regulation of fish and
wildlife within the Kenai NWR.179 Instead, the question is to what extent Congress
in enacting ANILCA intended to preempt the State’s wildlife management
jurisdiction over federal lands.
“Congress may expressly preempt state law by enacting a clear statement
to that effect.”180 However, “Congress may also preempt state law implicitly.”181
The task of determining whether Congress intended to preempt state law in the
absence of an expressly stated intent to do so is “guided by two cornerstones of .
. . pre-emption jurisprudence.”182 “First, ‘the purpose of Congress is the ultimate
touchstone in every pre-emption case.’”183 “Second, “[i]n all pre-emption cases,
and particularly in those in which Congress has ‘legislated . . . in a field which the
States have traditionally occupied,’ . . . we ‘start with the assumption that the
179 The Property Clause of the Constitution empowers Congress “to dispose of and make all
needful Rules and Regulations respecting the Territory or other Property belonging to the United
States.” U.S. Const. art. IV, § 3, cl. 2. “[T]he ‘complete power’ that Congress has over public
lands necessarily includes the power to regulate and protect the wildlife living there.” Kleppe v.
New Mexico, 426 U.S. 529, 540–41 (1976).
180 In re Volkswagen “Clean Diesel” Mktg., Sales Practices, and Prods. Liab. Litigation, 959 F.3d
1201, 1211 (9th Cir. 2020) (citing Kansas v. Garcia, 140 S. Ct. 791, 801 (2020)).
181 Id.
182 Wyeth v. Levine, 555 U.S. 555, 565 (2009).
183 Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
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historic police powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.’”184
The Supreme Court has identified two circumstances in which “Congress’s
implicit intent to preempt state law clears that high threshold.”185 The first
circumstance occurs “when federal law occupies a field of regulation so
comprehensively that it has left no room for supplementary state legislation . . .
.”186 The second circumstance occurs “when a state law actually conflicts with
federal law, either because compliance with both state and federal law is
impossible, or because the state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress . . . .”187 While “a
saving clause raises the inference that Congress did not intend to preempt state
law,” a court “may not interpret a saving clause as preserving a state law that would
so conflict and interfere with a federal enactment that it would defeat the federal
law’s purpose or essentially nullify it . . . .”188
184 Id. (quoting Lohr, 518 U.S. at 485) (alternations in original).
185 In re Volkswagen, 959 F.3d at 1212.
186 Id. (quoting Murphy v. Nat’l; Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018)) (internal
quotations omitted).
187 Id. (internal quotations and citations omitted).
188 Id. at 1213–14.
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In National Audubon Society v. Davis,189 the Ninth Circuit considered a
saving clause in the National Wildlife Refuge System Improvement Act similar to §
1314 of ANILCA, which reads:
Nothing in this Act shall be construed as affecting the
authority, jurisdiction, or responsibility of the several
States to manage, control, or regulate fish and resident
wildlife under State law or regulations in any area within
the System. Regulations permitting hunting or fishing of
fish and resident wildlife within the System shall be, to the
extent practicable, consistent with State fish and wildlife
laws, regulations, and management plans.190
The plaintiffs challenged a leg-trap ban adopted by California voters. The district
court held that the leg-trap ban was preempted by the Improvement Act insofar as
the trapping occurred on national wildlife refuges (“NWR”). On appeal, the State
of California urged reversal, citing the first sentence of the saving clause. But the
Ninth Circuit affirmed, holding that the first sentence of the saving clause “was not
meant to eviscerate the primacy of federal authority over NWR management.”191
Accordingly, the Court held that the Improvement Act preempts California’s
“regulation of federal trapping on NWRs in California because the ban on leghold
traps conflicts with [the Service’s] statutory management authority on those federal
189 307 F.3d 835 (9th Cir. 2002), opinion amended on denial of reh’g, 312 F.3d 416 (9th Cir.
2002).
190 16 U.S.C. § 668dd(m).
191 Audubon Soc’y, 307 F.3d at 854.
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reserves.”192 The Ninth Circuit noted its agreement with the Tenth Circuit’s opinion
in Wyoming v. United States, which offers a more extended analysis of the
Improvement Act provision.193
In Wyoming, the State of Wyoming challenged the Service’s refusal to allow
the State to vaccinate elk on the National Elk Range (“NER”).194 Citing to the first
sentence of the Improvement Act’s saving clause, the State argued that the
Improvement Act “reserves to the State the unencumbered right to manage
wildlife” on the NER.”195 The Tenth Circuit began with the “assumption . . . that the
[Improvement Act] was not meant to supercede the State of Wyoming’s historical
police powers to manage wildlife on federal lands within its borders ‘unless that
was the clear and manifest purpose of Congress.’”196 Nonetheless, while “[t]he
first sentence of the [Improvement Act’s] saving clause, viewed in isolation, seems
to support our assumption that . . . the State retains the absolute right to manage
wildlife on the [National Elk Range],” the court determined that “[s]uch an
interpretation of the saving clause . . . simply is not feasible in light of established
rules of construction requiring us to consider the [Improvement Act] in its entirety,
192Id.
193 279 F.3d 1214, 1230–35 (10th Cir. 2002).
194 Id. at 1221–22.
195 Id. at 1227–28.
196 Id. at 1231 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
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mindful of congressional purposes and objectives.”197 Although the Improvement
Act calls for “state involvement and participation of the management of the
[National Wildlife Refuge System],” the Improvement Act requires the Service “to
act in conformity with State objectives only ‘to the extent practicable.’”198 The
Tenth Circuit also observed that the legislative history behind the saving clause
“lends little support to [Wyoming’s] claim that the saving clause unconditionally
reserves to it the ‘sovereign’ right to manage elk” on the NER.” The court cited to
a statement in the legislative history that noted the Improvement Act was “designed
to maintain the status quo relative to the dispute between the States and the [DOI]
over the issue of which entity has the authority to control, manage, and regulate
fish and resident wildlife on areas within the System.”199 The Tenth Circuit
explained that “the proposition that the [Service] lacks the power to make a
decision regarding the health of wildlife on the NER when a State, for whatever
reason, disagrees with that decision proves too much” because “[s]uch a
construction of the saving clause would be inconsistent with the [Improvement
Act’s] ‘mission . . . to administer a national network of lands.’”200 Instead, the Tenth
Circuit determined that the saving clause reflected only that “Congress did not
197 Id. at 1231.
198 Id. at 1232 (quoting 16 U.S.C. § 668dd(e)(1)(A)(iii) and citing § 668dd(e)(3)).
199 Id. at 1232–33 (quoting S. Rep. No. 1463, at 6–7, reprinted in 1966 U.S.C.C.A.N. at 3347–
48).
200 Id. at 1233–34 (quoting 16 U.S.C. § 668dd(a)(2)).
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intend to displace entirely state regulation and management of wildlife on federal
public lands,” and instead “intended ordinary principles of conflict preemption to
apply . . . .”201
Similar logic applies to § 1314 of ANILCA. Like the Improvement Act,
ANILCA does not unconditionally direct the Secretary to conform federal
regulations to state law, but instead provides that “[e]ach refuge shall be
administered . . . in accordance with the laws governing the administration of units
of the National Wildlife Refuge System, and this Act.”202 ANILCA instructs the
Secretary to prepare CCPs that “specify the uses within each such area which may
be compatible with the major purposes of the refuge,” without mention of
conformity to state law.203 While ANILCA aims to strike a “balance between the
reservation of national conservation system units and those public lands necessary
and appropriate for more intensive use and disposition,” Plaintiffs do not point to
any provision in ANILCA that explicitly states that federal regulations governing
NWRs must conform to state law.204 Instead, they point to § 1314(a), which by
itself seems to support the proposition that the State retains ultimate control over
wildlife on federal lands; however, this construction of § 1314 would be contrary to
201 Id. at 1234.
202 Pub. L. No. 96-487 § 304(a).
203 Pub. L. No. 96-487 § 304(g)(3)(A)(iii).
204 Accord Pub. L. No. 96-487 § 101(d); 16 U.S.C. § 3101(d).
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ANILCA’s purpose to “provide for the maintenance of sound populations of, and
habitat for, wildlife species of inestimable value to the citizens of Alaska and the
Nation . . . .”205 Section 1314 itself is at odds with Plaintiffs’ reading because it
provides that “[t]he taking of fish and wildlife in all conservation system units . . .
shall be carried out in accordance with the provisions of this Act and other
applicable State and Federal law.”206 Thus, § 1314 specifically contemplates that
federal law will apply to NWRs, and where there is a clear conflict between federal
and state law, the federal law controls.
Additionally, the legislative record does not support the State’s sweeping
interpretation of § 1314(a). Instead, the record explains that § 1314 “is a perfecting
amendment designed to maintain the status quo in historic Federal-State relations
concerning fish and wildlife management, except as specifically modified by this
Act in the Subsistence Title.”207 This statement closely resembles the statement
the Wyoming court cited as evidence that Congress did not intend the
Improvement Act to confer plenary authority over wildlife on federal lands to the
States.208
205 Pub. L. No. 96-487 § 101(b); 16 U.S.C. § 3101(b) (emphasis added).
206 Pub. L. No. 96-487 § 1314(c); 16 U.S.C. § 3202(c) (emphasis added).
207 126 Cong. Rec. 31109 (statement of Sen. Ted Stevens).
208 See Wyoming, 279 F.3d at 1232–33 (quoting S. Rep. No. 1463, at 6-7, reprinted in 1966
U.S.C.C.A.N. at 3347–48) (“Your committee has added a provision to this subsection which
makes it clear that this bill does not diminish or increase the authority, jurisdiction, or
responsibility of the States relative to fish and resident wildlife in any area within the system.
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This interpretation of ANILCA is further supported by the 1982 MMU
between the State and the Service, which “reflects the general policy guidelines
within which the two agencies agree to operate.”.209 In the MMU, the Service
agreed “[t]o adopt refuge management plans whose provisions . . . are in
substantial agreement with the [State’s] fish and wildlife plans, unless such plans
are determined formally to be incompatible with the purposes for which the
respective refuges were established.”210 The Service and the State mutually
agreed that “the taking of fish and wildlife . . . on Service lands in Alaska is
authorized in accordance with applicable State and Federal law unless State
regulations are found to be incompatible with documented Refuge goals,
objectives, or management plans.”211 Thus, both the State and the Service
recognized and agreed in the MMU that the Service retained ultimate authority to
manage NWRs in accordance with the purposes set forth in ANILCA.
Accordingly, the Court declines to “give broad effect to [a] saving clause[]
where doing so would upset the careful regulatory scheme established by federal
The amendment was agreed to by the President of the International Association of Game, Fish,
and Conservation Commissioners representing all the State fish and game departments and by
the Department of the Interior. It is designed to maintain the status quo relative to the dispute
between the States and the Department over the issue of which entity has the authority to
control, manage, and regulate fish and resident wildlife on areas within the System.”).
209 FWL001551.
210 FWL001553 (emphasis added).
211 FWL001553–54.
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law.”212 Rather, the Court finds that § 1314(a) “was not meant to eviscerate the
primacy of federal authority over [national wildlife refuge] management” 213 and
instead reflects Congress’s intent that “ordinary principles of conflict preemption
apply” to disputes involving ANILCA.214
Plaintiffs’ assertion that the Service has misconstrued the purposes of the
Kenai NWR to prioritize other uses over hunting is also unavailing. Notably, §
303(4)(B) provides that “opportunities for scientific research, interpretation,
environmental education, and land management training” within the Kenai NWR
are to be provided “in a manner consistent” with “conserve[ing] fish and wildlife
populations and habitats in their natural diversity” and “fulfill[ing] the international
treaty obligations of the United States with respect to fish and wildlife.”215 In
contrast, “opportunities for fish and wildlife-oriented recreation” such as hunting
are to be provided “in a manner compatible with these purposes,” referring to all
the other listed purposes of the Kenai NWR.216 Beginning with the first CCP, the
Service determined that hunting should be restricted in the Skilak WRA “so wildlife
212 Geier v. Am. Honda Motor Co., 529 U.S. 861, 870 (2000) (internal quotation omitted)
(holding that saving clause for tort liability in federal motor vehicle safety statute that also
contains express preemption clause “does not foreclose . . . the possibility that a federal safety
standard will preempt a state common-law tort action with which it conflicts”).
213 Nat’l Audubon Society, 307 F.3d at 854.
214 Wyoming, 279 F.3d at 1234.
215 Pub. L. No. 96-487 § 303(4)(B)(i)–(iv).
216 Pub. L. No. 96-487 § 303(4)(B)(v).
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would become more abundant, less wary, and easily viewed.”217 Even if “Congress
did not require [environmental education and scientific research to] be carried out
to the exclusion of hunting” as urged by Plaintiffs,218 § 304(g) specifically instructs
the Secretary to “specify the uses within each such area which may be compatible
with the major purposes of the refuge.”219 The prohibition on brown bear baiting
and the restrictions on hunting in the Skilak WRA and along the Kenai and Russian
rivers are valid exercises of the Service’s authority under ANILCA to specify
different uses for different areas within the Kenai NWR.
For the foregoing reasons, the Court finds that the challenged aspects of the
Kenai Rule do not violate ANILCA.
III. National Wildlife Refuge System Improvement Act
Plaintiffs assert that the Kenai Rule violates the Improvement Act because
it impermissibly “elevates one compatible priority use (viewing) over another
(hunting).”220 They contend that the Service’s reliance on the Skilak WRA’s
“antiquated management goal” is inappropriate because “the Skilak WRA’s
establishment in 1985 preceded the Improvement Act’s instruction in 1997 to
217 FWL000982.
218 Docket 189 at 53.
219 Pub. L. No. 96-487 § 304(g)(1)(A)(iii).
220 Docket 171 at 50.
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‘facilitate’ compatible wildlife-dependent recreational uses.”221 Plaintiffs
additionally assert that “the Kenai Rule violates the Improvement Act and [Service]
policy by promoting non-priority uses over hunting,” such as “hiking, night sky
observation, cross country skiing, and winter camping . . . in the Skilak WRA” and
river floating and hiking on and along the Kenai and Russian rivers.222 They also
contend that the Service “has not made a formal finding of incompatibility” and in
fact concluded in the 2007 compatibility determination that “hunting is compatible,”
and thus the Service “has no legal basis to exclude hunting for the benefit of other
uses.”223 Plaintiffs also assert that the Service misconstrued the BOG’s
regulations regarding brown bear baiting and predator hunts in the Skilak WRA as
“intensive management” and erroneously concluded they were inconsistent with
the 2010 Kenai NWR CCP, which “unnecessarily creat[ed] a conflict with State
law.”224 Thus, the Plaintiffs maintain that the Kenai Rule “is not consistent with
State wildlife laws, ‘to the extent practicable,’”225 and “illegally deprive[s] the State
of its authority” under § 668dd(m).226
221 Docket 171 at 51.
222 Docket 171 at 52 (citing 81 Fed. Reg. 27034, 27038).
223 Docket 190 at 55.
224 Docket 189 at 56–57.
225 Docket 189 at 57 (quoting 16 U.S.C. § 668dd(m)).
226 Docket 189 at 56 n.25.
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Federal Defendants respond by first asserting that “the Service did not
elevate one priority use over another,” but instead “specified different areas of the
refuge for different purposes that can be incompatible” which is “authorized by
section 304(g) of ANILCA.”227 Regarding the Skilak WRA hunting restrictions, they
contend that although the Skilak WRA was created and developed pursuant to
ANILCA prior to the passage of the Improvement Act, “any conflict between the
Improvement Act and ANILCA is resolved in favor of ANILCA,” pointing to § 9(b)
of the Improvement Act, which provides that “any conflict arises between any
provision of this Act and any provision of the Alaska National Interest Lands
Conservation Act, then the provision in the Alaska National Interest Lands
Conservation Act shall prevail.” 228 Federal Defendants additionally assert that the
Skilak WRA hunting restrictions do not “elevate[] non-priority uses . . . over
hunting”; instead, pursuant to “section 6 of the Improvement Act, the Service
considered whether a ‘new use’ of the Kenai Refuge (open hunting in the Skilak
WRA) was ‘inconsistent with public safety.’”229 Likewise, regarding the prohibition
227 Docket 178 at 35–36.
228 Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory construction note regarding 16
U.S.C. § 668dd with respect to Alaska).
229 See 16 U.S.C. § 668dd(d)(3)(A)(i) (“Except as provided in clause (iv), the Secretary shall not
initiate or permit a new use of a refuge or expand, renew, or extend an existing use of a refuge,
unless the Secretary has determined that the use is a compatible use and that the use is not
inconsistent with public safety. The Secretary may make the determinations referred to in this
paragraph for a refuge concurrently with development of a conservation plan under subsection
(e).”). See also 16 U.S.C. § 668dd(d)(3)(A)(iii) (“Wildlife-dependent recreational uses may be
authorized on a refuge when they are compatible and not inconsistent with public safety.”).
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on discharging firearms along the Kenai and Russian rivers, they contend that
“[w]hile the Service . . . considered general river recreation to document levels of
river usage, its public safety concerns are justified under ANILCA and the
Improvement Act.”230 In response to Plaintiffs’ assertion that they misconstrued
the BOG’s regulations as “intensive management,” Federal Defendants respond
that it “is irrelevant to the Kenai Rule because . . . the Kenai Rule does not rely on
notions of ‘intensive management’ or ‘predator control’”; rather, “the Court need
only consider whether the ‘agency’s stated reasons for’ the Kenai Rule are
sufficient . . . .”231
Plaintiffs’ contention that the Service has impermissibly elevated one priority
use over another priority use by restricting predator hunting in the Skilak WRA and
prohibiting firearm discharges along the Kenai and Russian rivers is without merit.
ANILCA instructs the Secretary to develop CCPs that “specify the uses within each
such area which may be compatible with the major purposes of the refuge.”232
Even if the Skilak restrictions constitute impermissible prioritization of wildlife
viewing and photography or fishing over hunting under the Improvement Act,
ANILCA’s § 304(g) instructs the Service to set aside different areas for different
uses; if the Improvement Act conflicts with the this provision in ANILCA, § 304(g)
230 Docket 178 at 40.
231 Docket 201 at 29 (quoting Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019)).
232 Pub. L. No. 96-487 § 304(g)(1)(A)(iii).
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prevails.233 For similar reasons, Plaintiffs’ contention that the Service has “no legal
basis to exclude hunting for the benefit of other uses” because the “2007
[compatibility determination] concludes that hunting is compatible” also fails.234
Even though hunting has been determined to be compatible, ANILCA still instructs
the Secretary to set aside different portions of the Kenai NWR for different uses,235
and ANILCA controls if in conflict with the Improvement Act on this point.236
Plaintiffs’ assertion that the Kenai Rule impermissibly elevates non-priority
uses over hunting is also unpersuasive. The Improvement Act permits restrictions
on compatible uses that are “necessary, reasonable, and appropriate.” 237 The
Service explained that the restriction on firearm discharges along the Kenai and
Russian rivers was included “to reduce threats to public safety” in the area.238 The
233 Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory construction note regarding 16
U.S.C. § 668dd with respect to Alaska).
234 Docket 190 at 55.
235 Pub. L. No. 96-487 § 304(g)(1)(A).
236 Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory construction note regarding 16
U.S.C. § 668dd with respect to Alaska).
237 16 U.S.C. § 668dd(a)(3)(D). This provision only applies “when the Secretary determines that
a proposed wildlife-dependent recreational use is a compatible use within a refuge . . . .” Id.
The Secretary has not determined that brown bear baiting is a compatible use within the Kenai
NWR. Thus, this provision does not apply to the bear baiting restriction.
238 81 Fed. Reg. 27034 (“Recent takes of brown bears along the Russian and Kenai rivers
during the falls of 2013 and 2014 posed threats to public safety, as bears were shot in close
proximity to other users fishing from shore, wading, or boating, and firearms and ammunition
with substantial lethal distances were used in areas where sight distances are extremely limited
due to vegetation and river meanders. These takes occurred on, along, or immediately adjacent
to river shorelines and within the 11-mile buffer distance established by this rule. In addition,
discharge of firearms to ‘warn’ or deter bears presents a growing threat to public safety along
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Service also explained that the Skilak WRA was heavily used such that expanded
hunting activity in that area could pose public safety issues.239 These restrictions
reasonably and appropriately further public safety in the Kenai NWR given the
Improvement Act’s prohibition on uses which are “inconsistent with public
safety.”240
Additionally, the Court agrees with Federal Defendants that it is unnecessary
to reach the question of whether the Service created an unnecessary conflict with
State law by misconstruing the BOG’s regulations as “intensive management.”
The Kenai Rule provides detailed explanations and findings supporting its
provisions, none of which references or relates to “intensive management.”241
the Russian and Kenai rivers. Recently enacted changes to State hunting regulations for brown
bears on the Kenai Peninsula have increased the potential for firearms discharge to result in
threats to public safety in these areas. Current brown bear hunting season dates of September
1 to May 31 substantially overlap with periods of high public use along the Russian and Kenai
rivers during fall and spring (in the 7 years prior to 2008, brown bear hunting season dates were
October 15 to October 30). The Service considers adoption of this rule necessary to reduce
threats to public safety posed by discharge of firearms along the Russian and Kenai rivers
during periods of high visitation for activities including fishing, river floating, hiking, and wildlife
observation.”).
239 81 Fed Reg. 27038; FWL013570 (“While highest levels of public use in the Skilak WRA
occur in the summer months, observations by Refuge staff and records of use of Refuge public
use cabins indicate that fall and winter recreational use of the area for many activities, including
hiking, general nature observation and photography, night sky observation, cross country
skiing, and winter camping, is substantial and increasing. Given this increased public use during
winter, the Service believes that allowing hunting (or trapping) of wolves, coyotes, and lynx
during winter months in the Skilak WRA would increase the potential for conflicts between users
and safety issues.”).
240 16 U.S.C. § 668dd(d)(3)(A)(i). This same analysis also applies to the Court’s determination
that the restrictions are not arbitrary or capricious pursuant to the Administrative Procedure Act,
as explained below.
241 See 81 Fed. Reg. 27030–48.
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Furthermore, while the Improvement Act instructs the Service to adopt regulations
that are, “to the extent practicable, consistent with State fish and wildlife laws,
regulations and management plans,”242 the Ninth Circuit has held that the
Improvement Act gives the Service ultimate authority to preempt State regulations
and is not bound by State law that conflicts with its management directives.243
Accordingly, the Court finds that the challenged aspects of the Kenai Rule
do not violate the Improvement Act.
IV. Administrative Procedure Act
Plaintiffs urge that the challenged aspects of the Kenai Rule are not “fully
informed and well-considered” and therefore, they should be set aside as arbitrary
and capricious pursuant to the Administrative Procedure Act.244
a. Skilak Wildlife Recreation Area Hunting Restrictions
Plaintiffs maintain that the Service’s conclusion that allowing late-season
predator hunts in the Skilak WRA would negatively impact wildlife viewing and
photography “is unsupported by any evidence in the administrative record”
because the Service “lacked information about predator populations in the Skilak
WRA”245 and because “wild animals do not understand or comply with
242 16 U.S.C. § 668dd(m).
243 Audubon Soc’y v. Davis, 307 F.3d at 854.
244 Docket 171 at 19–20 (citing Sierra Club v. Bosworth, 510 F.3d 1016, 1023 (9th Cir. 2007)).
245 Docket 171 at 22.
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jurisdictional boundaries.”246 Plaintiffs also allege that the record does not support
the Service’s assumptions about how Skilak WRA visitors experience and learn
about predator species and how late-season predator hunts “would degrade
these experiences.”247 Additionally, they contend that the Kenai Rule does not
“justify closing the Skilak WRA to wolf, coyote, and lynx hunting as a means to
prevent conflict between users”248 because it “does not point to any evidence of
actual conflicts between wildlife viewing and hunting.”249
Federal Defendants maintain that the Service’s analysis provides a
“reasonable basis” to conclude that “annual harvest [in the Skilak WRA] would
maintain reduced densities and/or affect behavior” even though “there were no
‘area-specific studies and data . . . .’”250 They assert that Plaintiffs “identify no
available science or data that the Service overlooked” and that Plaintiffs instead
claim that the Service should have looked at alternatives that were not “proposed
in comments during the rulemaking process.”251 Intervenor-Defendants add that
246 Docket 189 at 14–15.
247 Docket 171 at 22–23.
248 Docket 171 at 24.
249 Docket 189 at 17. Plaintiffs also urge that the Service ignored “that hunting is a priority use
by law” and “that the BOG and citizens requested predator hunting opportunities in the off
season” in the Skilak WRA. Docket 171 at 23. As explained above, the Service has discretion
under the Improvement Act and ANILCA to implement reasonable regulations to prevent
conflicts between uses and to set aside different portions of the Kenai NWR for different uses.
250 Docket 178 at 30.
251 Docket 178 at 30–31.
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it was reasonable for the Service to conclude that keeping “the Skilak WRA closed
to predator hunting would avoid user conflicts and safety concerns given the
intense recreational use the area receives,” citing the 2007 Skilak WRA
management plan, which noted that the “single most common opinion expressed
among the responses was support for retaining existing firearm restrictions.”252
The Service provided a reasonable justification to continue the Skilak WRA
hunting restrictions based on a rational connection to facts in the record after
considering the relevant factors.253 The Service explained that its conclusion was
based on “the area’s small size, its accessibility by road, proximity to population
centers, and likely hunting (or trapping) pressure.” 254 This justification is rationally
connected to the choice to restrict hunting in the area. Accessibility by road and
proximity to population centers are among the very reasons “the BOG and citizens
requested predator hunting opportunities” in the Skilak WRA, which supports the
inference that opening the Skilak WRA to more hunting would result in significant
additional pressure on local wildlife populations.255 In restricting hunting and
252 Docket 185 at 26.
253 Cf. Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (citing Ranchers Cattlemen
Action Legal Fund v. U.S. Dep’t of Agriculture, 415 F.3d 1078, 1093 (9th Cir. 2005)) (finding
agency decision to categorically exclude prisoners convicted of firearm-related offenses from
early release arbitrary and capricious because agency relied on one rationale absent from the
administrative record and did not provide explanation for its other rationale).
254 81 Fed. Reg. 27038; FWL013570.
255 Docket 171 at 23; FWL008985 (“The accessibility of the SWRA is a draw for all users and
this closure unnecessarily limits already limited road-accessible opportunities on the Refuge.”).
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trapping so that “wildlife would become more abundant, less wary, and more
easily observed,”256 the Service made a prediction within its area of expertise, to
which the Court accords substantial deference.257 While Plaintiffs provide several
plausible counterarguments to the Service’s conclusion, the Court will not
substitute its own judgment for the judgment of the Service on this
determination.258
Plaintiffs cite several cases for the proposition that “[d]istrict courts have
repeatedly rejected an agency’s attempts to rely on assumption as the basis for
action,” but each is distinguishable from this case.259 In Center for Biodiversity v.
Bureau of Land Management, the District Court for the Northern District of
California reviewed a critical habitat rule issued by the Service.260 The plaintiffs
maintained that the final economic analysis on which the rule relied was deficient
because it contained a flawed assumption that an interim closure of the area
256 81 Fed. Reg. 27038; FWL013570.
257 Cf. Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 711 (9th Cir. 2009) (citing The
Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc), abrogated in part on other
grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)) (upholding agency
determination that increased vulnerability of polar bear population would likely not manifest itself
in context of oil and gas activities where such effects were speculative because agency “made
scientific predictions within the scope of its expertise, the circumstance in which we exercise our
greatest deference”).
258 Arrington, 516 F.3d at 1106 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 416 (1971), abrogated in part on other grounds by Califano v. Sanders, 430 U.S. 99
(1977)) (“The court is not empowered to substitute its judgment for that of the agency.”).
259 Docket 189 at 15–16.
260 422 F. Supp. 2d 1115, 1143 (N.D. Cal. 2006).
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governed by the rule led to a 15% decline per year in off-highway vehicle (“OHV”)
visitation.261 The district court agreed, reasoning that because “the agency’s own
data show that OHV use actually increased after the closures,” there was “no
factual basis in the record to support the . . . assumption that the closures resulted
in a 15% decline in OHV visitation for each year between 2001 and 2004.”262 In
Wilderness Society v. U.S. Forest Service, the District Court for the District of
Idaho reviewed the Forest Service’s analysis of its project’s impact on water
quality standards pursuant to the Clean Water Act.263 The district court
determined that the Forest Service’s conclusion was arbitrary and capricious
because it was based on the “generalized assumption that closing roads to
motorized use will improve water quality” while ignoring evidence that “the
existence of roads themselves, without mitigation efforts, may still negatively
impact water quality.”264 In contrast to both of these cases, Plaintiffs here point
to no relevant data ignored by the Service that contradicts the Service’s prediction
that “annual harvest [in the Skilak WRA] would maintain reduced density and/or
affect behavior” and thereby degrade opportunities for wildlife viewing and
261 Id. at 1147.
262 Id. at 1149.
263 Case No. CV08-363-E-EJL, 2013 WL 5729056, at *4 (D. Idaho Oct. 22, 2013).
264 Id. at *7.
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education.265
Plaintiffs also cite to Northwestern Environmental Defense Center v. U.S.
Army Corps of Engineers, in which the District Court for the District of Oregon
reviewed an agency’s biological opinion prepared pursuant to the Endangered
Species Act. The biological opinion concluded that a regional permit would not
jeopardize endangered salmon populations in the area. 266 The district court held
that this determination was arbitrary and capricious because it was based on
“unsupported assumptions” that the salmon population was “trending upward in
response to improved habitat conditions.”267 The court reasoned that the record
showed no increase in the number of fish counted and that “a reasonable
explanation is lacking and the population growth is taken as fact.”268 Here, the
Service did provide a reasonable explanation, basing its conclusion on “the area’s
small size, its accessibility by road, proximity to population centers, and likely
hunting (or trapping) pressure.”269 This explanation is sufficiently plausible and is
265 81 Fed. Reg. 27038; FWL013570.
266 Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng’rs, Case No. 3:10-cv-01129-AC, 2013 WL
1294647, at *23 (D. Or. Mar. 27, 2013).
267 Id.
268 Id.
269 81 Fed. Reg. 27038; FWL013570.
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consistent with the evidence before the agency.270 A lack of empirical data does
not render an otherwise reasonable conclusion based on agency experience
arbitrary or capricious.271
Because the Service made a rationally supported decision based on
predictions within its area of expertise and because Plaintiffs have not pointed to
any contrary empirical evidence in the record ignored by the Service, the Court
finds that Service’s decision to maintain the closure of Skilak WRA to late-season
predator hunts is not arbitrary or capricious.
b. Firearm Discharge Restriction
Plaintiffs maintain that the Kenai Rule’s imposition of restrictions on
firearms discharges along the Kenai and Russian rivers “do[es] not articulate a
rational connection between the facts found and the choices made.”272 First,
Plaintiffs contend that because the “2010 ‘Kenai River Recreation Study’ upon
270 “Normally, 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.” Motor Vehicle Mfrs. Ass’n, of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (holding agency action was arbitrary and capricious
because agency failed to provide explanation for rescission of regulation).
271 “It may have been preferable for the [agency] to support its conclusions with empirical
research. However, it was reasonable for the [agency] to rely on its experience, even without
having quantified it in the form of a study.” Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir.
2010) (footnote omitted) (agency decision to impose requirements for placing prisoners in
residential re-entry centers was not arbitrary and capricious when it was based on agency
experience in absence of empirical data).
272 Docket 171 at 27.
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which the [Service] relied did not examine the impact or perceived impact of
hunters or firearms on the Kenai River.273 Second, they contend that the fact
“[t]hat other people were in an undefined ‘close proximity’” to bears being shot
“does not mean they faced any risk from a hunter using a firearm to take a bear,”
as evidenced by “the exception for small game and waterfowl hunting.274 Plaintiffs
additionally assert that the Service failed to consider “the loss of a quality,
‘traditional moose and bear hunting area.’”275 They maintain that although the
area represents a small fraction of the overall Kenai NWR, “[n]othing in the Kenai
Rule or Federal Defendants’ brief supports the conclusion that ‘most hunting’
occurs outside of the river corridors.”276 They also contend that the year-round
restriction is overbroad because it covers periods outside of the “primary fishing
season from July to mid-August.”277
Federal Defendants respond that the public safety justification is not
undermined by the exception for small game and waterfowl hunting because big
game hunting involves “firearms and ammunition with substantial lethal
distances” whereas “discharging shotguns to take waterfowl generally does not
273 Docket 171 at 27.
274 Docket 171 at 28.
275 Docket 171 at 29 (citing 81 Fed. Reg. 27034).
276 Docket 189 at 30–31.
277 Docket 189 at 30.
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involve substantial lethal distances to humans.”278 It also justifies its reliance on
the recreation study because the study was used “as evidence that river usage
had become more crowded at times that overlapped with expanded hunting
seasons” and note that Plaintiffs “present no alternate study or contrary data that
the Service should have considered regarding river usage.”279 Federal
Defendants also maintain that the Service did consider the loss of a “traditional
moose and bear hunting area.” They assert that the Service “determined that the
‘rule will have negligible impacts on overall hunting opportunity’” because the area
constitutes a small portion of the total Kenai NWR, most hunting activity occurs
outside of it,280 and because “’reasonable opportunities to hunt’ bear and moose
‘with firearms in the vicinity of the Russian and Kenai rivers for those wishing to
do so will continue to be available outside of the ¼-mile river corridors.”281 They
deny that the year-round restriction is overbroad because the State bear season
extends from September 1 to May 31, which overlaps with “increased use of both
the Kenai and Russian rivers during fall and spring months” associated with trout
fishing, and the restriction has negligible effects on winter bear hunting as bears
278 Docket 178 at 39 (emphasis in original) (quoting 81 Fed. Reg. 27034, FWL013566).
279 Docket 178 at 39.
280 Docket 178 at 39–40 (quoting 81 Fed. Reg. 27034, FWL013566).
281 Docket 201 at 25–26 (quoting 81 Fed. Reg. 27034, FWL013566).
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hibernate during that time.282
The Service reasonably justified its restriction on firearms discharges along
the Kenai and Russian rivers by rationally connecting the restriction to public
safety concerns. The recreation study provides a plausible basis for the Service’s
conclusion that increased crowding along the rivers heightens public safety risks
associated with large game hunting in the area. Additionally, the restriction is not
arbitrary just because no one has been injured so far in the area due to a hunting
accident. As discussed above, the Service may rely upon its experience in
managing public uses in national wildlife refuges in combination with available
information. The Service reasonably concluded that although no one has been
injured by a bear hunter in the area, the public safety risk has grown with this
increased crowding. The Service is not required to wait for an injury to occur to
prove such a plausible conclusion is correct.
The exceptions for waterfowl hunting and dispatching lawfully trapped
game do not contradict that conclusion; instead, the exceptions indicate the
Service took a reasoned and considered approach to crafting the restriction in
order to tailor it to its stated purpose. The restriction is also not arbitrarily
overbroad for being in effect year-round. As the Service noted, the State recently
extended its brown bear hunting season from September 1 to May 31, and the
282 Docket 201 at 24–25 (quoting 81 Fed. Reg. 27034, FWL013566).
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popularity of trout fishing in the fall has grown.283 Thus, enforcing the restriction
year-round is reasonable to protect public safety.
Contrary to Plaintiffs’ assertion, the Service explicitly considered “that the
area affected by the proposed firearms discharge prohibition is a traditional
moose and bear hunting area” and that some commenters were concerned the
rule would negatively affect them.284 The Service determined that the restriction
“will have negligible impacts on overall hunting opportunity and harvest levels of
black bears, brown bears, and moose on the Refuge, as most hunting activity for
these species occurs outside of these river corridors.”285 Plaintiffs disagree with
this assessment and refer to the traditional importance of river corridors for
hunting opportunities. However, the record indicates that the Service considered
that traditional importance and concluded the rule would not significantly disrupt
hunting in the Kenai NWR. That Plaintiffs disagree with this reasoned conclusion
is not a basis for the Court to reverse the agency’s decision.286
For the foregoing reasons, the restriction on firearms discharges in the
Kenai and Russian rivers corridors is not arbitrary or capricious.
c. Bear Baiting Rule
283 81 Fed. Reg. 27034; FWL013566.
284 81 Fed. Reg. 27034; FWL013566.
285 81 Fed. Reg. 27034; FWL013566.
286 See Ctr. for Biological Diversity, 588 F.3d at 711 (noting “scientific predictions within the
scope of [agency] expertise” are entitled to “our greatest deference”).
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Plaintiffs also challenge the Kenai Rule’s clarification of bear baiting rules
as arbitrary and capricious. They maintain that it “conflicts with an Interior
regulation that provides, ‘[b]aiting is authorized in accordance with State
regulations on national wildlife refuges in Alaska.”287 They also assert that the
Service “discussed and dispelled notions that baiting conditions ‘both brown and
black’ bears to prefer human food or garbage” in its 2007 CD.288 Therefore, they
allege that it was arbitrary and capricious for the Service to then determine “that
a risk of adverse food conditioning arose from hunting bear over bait” in the Kenai
Rule without explaining its change of position.289 Plaintiffs assert that the Service
also unexplainedly changed its position from the “policies set forth in the Kenai
NWR CCP,” which “recognizes reduction of predators as a standard hunting
practice that differs from intensive predator management.”290 They allege that the
Service “chose to ‘bypass’ the conflict” by “focusing on the [Intensive
Management] statute and its conflict with Refuge mandates,” citing a 2013
internal e-mail.291 They also claim that the Service’s conservation justification
“lacks a rational basis” because “[r]estricting the method of take does not reduce
287 Docket 171 at 29–30 (quoting 50 C.F.R. § 32.2(h)).
288 Docket 171 at 30.
289 Docket 171 at 31.
290 Docket 171 at 33.
291 Docket 171 at 33 (quoting FWL001984) (footnote omitted).
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the harvest level” because “the number of brown bears harvested during a hunting
season is established by the State.”292
Federal Defendants respond that the Service did not change its position
from the 2007 CD regarding food conditioning because it always recognized “the
potential—without conclusive evidence—for baiting to condition bears to human
food.”293 Instead, they assert that the Service “reached a different conclusion
about how that potential concern should affect baiting practices” and “explained
why it reached a different conclusion.”294 Federal Defendants also assert that
“the Kenai Rule does not ‘attempt[] to “bypass” an unexplained change in
position’” because “the Kenai Rule does not rely on notions of ‘predator control’
or predator management.”295 They contend that “Plaintiffs’ sole evidence [to the
contrary] . . . is an internal agency email about a different subject.” They maintain
that the agency should not be bound by an internal e-mail by an agency employee
nor by “a preliminary opinion that ‘is later overruled at a higher level within the
agency . . . .’”296 Regarding the Interior regulation, Federal Defendants maintain
292 Docket 189 at 32.
293 Docket 178 at 42 (emphasis in original).
294 Docket 178 at 42. Intervenor-Defendants add that the Service did not change its position
because it has never permitted brown bear baiting in the Kenai NWR. Docket 185 at 24.
295 Docket 178 at 43.
296 Docket 178 at 43 (quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
658–59 (2007)).
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that the “parenthetical merely served to clarify that the ‘General Provision[]’
prohibiting ‘hunting over bait . . . on wildlife refuge areas’ did not apply to refuges
in Alaska . . . .”297 Instead, Alaskan refuges are “‘opened to hunting, fishing and
trapping’ under ANILCA and governed by ‘specific refuge regulations.’”298
The 2007 CD was limited to determining the compatibility of black bear
baiting.299 In considering anticipated impacts of black bear baiting, the Service
listed several possible risks associated with the practice.300 One of those risks
was “that bears (both brown and black) that travel to a bait station and are
rewarded with food or scraps but are not harvested by a hunter, could become
conditioned to human food or garbage, making them more likely to become a
nuisance or problem bear in the future.”301 The Service determined that “there is
no evidence that a bear that is rewarded at a remote bait station is any more or
less likely to become a ‘garbage bear.’”302 However, the Service noted that “[t]his
issue deserves additional attention . . . and the potential concern for human and
297 Docket 178 at 44 (quoting 58 Fed. Reg. 5065, 5069).
298 Docket 178 at 44 (quoting 58 Fed. Reg. 5065, 5069).
299 FWL00066 (“Bear baiting on Kenai National Wildlife Refuge is limited to the regulated placing
of food or attractants to hunt black bears in the spring on portions of the Refuge. The use has
not been included within the general description of ‘hunting’ in the Refuge hunting compatibility
determination, and is given this separate review primarily because of significant public interest
associated with the practice.”).
300 FWL000069–70.
301 FWL000070.
302 FWL000070.
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non-target bear safety around the bait station itself is of interest.”303 This is similar
to the position taken in the Kenai Rule, which references the concern that baiting
has the “potential to create food-conditioned bears” and looks to sources to give
the issue additional attention.304 Thus, the position taken in the Kenai Rule is not
in direct conflict with its position in the 2007 CD.
To the extent that there is difference between the two positions, the Service
adequately explained its position in the Kenai Rule by citing two sources that
provided additional information on the effects of bear baiting on creating food-
conditioned bears.305 Plaintiffs assert that the Service’s “sudden reliance on
these sources to justify that a risk of adverse food conditioning arose from hunting
bear over bait . . . did not resolve or even explain the conflict with the [Service’s]
past position on hunting black bears over bait in the 2007 CD.”306 This Court
disagrees for two reasons. First, as explained above, the Kenai Rule does not
conflict with the 2007 CD because the 2007 CD did not take a conclusive position
on the issue of food-conditioned bears, noting instead that the issue deserved
additional attention. Second, the Kenai Rule does not conflict with the Service’s
position on bear baiting in the 2007 CD because the 2007 CD only analyzed the
303 FWL000070.
304 81 Fed. Reg. 27037; FWL013569.
305 81 Fed. Reg. 27037; FWL013569.
306 Docket 171 at 31.
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compatibility of black bear baiting and not brown bear baiting. The Kenai Rule
adequately justifies the difference between its position on black bear baiting and
brown bear baiting. It explains that “[b]lack bears occur in much higher densities
than brown bears on the Kenai Peninsula, have higher reproductive potential than
brown bears, and as such can support higher harvest levels and are less
susceptible to overharvest.”307 In contrast, the brown bear population is “highly
sensitive to adult female and overall human-caused mortality levels,” and “timely
and accurate monitoring of the status of the Kenai Peninsula brown bear
population is extremely difficult at best . . . .”308
Plaintiffs’ contention that the Service’s conservation justification “lacks a
rational basis” is also unpersuasive. The Kenai Rule cites ample data showing
that liberalized brown bear baiting rules elsewhere on the Kenai Peninsula caused
increased human-caused mortality and decreased brown bear populations.309
While noting that “harvest caps for adult female bears and overall human-caused
mortality can help ensure sustainability of harvests,” the Service determined that
“human-caused mortality at current harvest caps . . . would result in a continued
reduction of the Kenai brown bear population.”310 Thus, the Service predicted
307 81 Fed. Reg. 27037; FWL013569.
308 81 Fed. Reg. 27037; FWL013569.
309 81 Fed. Reg. 27037; FWL013569.
310 81 Fed. Reg. 27037; FWL013569 (emphasis added).
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that given the State’s harvest caps, “allowance of take of brown bears over bait
on the Refuge would increase human-caused mortality of Kenai brown bears to
levels which would continue to reduce the population, with potential to result in
conservation concerns for this population.”311 The Kenai Rule also notes the
difficulty of population monitoring, which could be complicated by “the increased
effectiveness of harvesting brown bears over bait,” and reasonably concluded
“that a cautious approach to management of Kenai Peninsula brown bears is
scientifically warranted . . . .”312
Likewise, the Kenai Rule does not represent an unexplained change in
position from the 2010 CCP. Plaintiffs’ evidence is a 2013 internal e-mail sent by
an agency employee which states: “I think we can bypass the inconsistency
between our past and current positions by focusing on the [Intensive
Management] statute and its conflict with Refuge mandates.”313 This e-mail
appears to be in regards to testimony the Service was planning to present to the
BOG, rather than the rulemaking process for the proposed Kenai Rule, which was
published two years later. However, even if the e-mail was part of the rulemaking
311 81 Fed. Reg. 27037; FWL013569.
312 81 Fed. Reg. 27037; FWL013569 (“Finally, timely and accurate monitoring of the status of
the Kenai Peninsula brown bear population is extremely difficult at best, costs associated with
monitoring are high, and funding for monitoring is usually limited and never guaranteed. This is
important given that the increased effectiveness of harvesting brown bears over bait would likely
mask the effects of reduced bear densities on harvest success, thereby increasing potential for
overharvest in the absence of adequately rigorous population monitoring.”).
313 FWL001984.
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process, “agency employees need not be afraid to conduct debates over e-
mail.”314 The final Kenai Rule does not reference predator management. The
agency is not bound by a position taken in an internal e-mail written by an agency
employee two years prior to the issuance of the proposed Kenai Rule that was
not included in the final rule.
Federal Defendants cite several cases that support this conclusion. For
example, in National Association of Home Builders v. Defenders of Wildlife, the
respondents challenged an agency’s decision to transfer its permitting power to
state officials.315 The respondents argued that the agency’s decision was
“internally inconsistent” because it took a different position regarding its statutory
obligations during preliminary review than it ultimately adopted in the final rule.316
The Supreme Court determined that “the fact that a preliminary determination by
a local agency representative is later overruled at a higher level within the agency
does not render the decisionmaking process arbitrary and capricious” because
“federal courts ordinarily are empowered to review only an agency’s final action .
. . .”317
Perhaps recognizing that the Service cannot be bound by this e-mail,
314 Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 717 (10th Cir. 2010).
315 551 U.S. 644, 649 (2007).
316 Id. at 658.
317 Id. at 659 (emphasis in original).
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Plaintiffs assert that the cases cited by Federal Defendants are inapt because
“the relevant email does not evidence a preliminary opinion prior to the final
agency action or internal discussion during the course of a single agency action;
it evidences the reversal, without explanation, of one final agency action (the 2007
CD for baiting) by another (the Kenai Rule).”318 This argument essentially
collapses the issue back into the argument that the Kenai Rule represents an
unexplained change of position from the 2007 CD. But as discussed above, the
Kenai Rule does not mention Intensive Management or predator control and its
position on food-conditioning bears is reconcilable with the 2007 CD.
Finally, Plaintiffs’ contention that the bear baiting provision is inconsistent
with 50 C.F.R. § 32.2(h) is unavailing. “In construing administrative regulations,
‘the ultimate criterion is the administrative interpretation, which becomes of
controlling weight unless it is plainly erroneous or inconsistent with the
regulation.’”319 50 C.F.R. § 32.2(h) reads: “The unauthorized distribution of bait
and the hunting over bait is prohibited on wildlife refuge areas. (Baiting is
authorized in accordance with State regulations on national wildlife refuges in
Alaska).” Plaintiffs provide a plausible reading whereby the parenthetical confers
318 Docket 189 at 36.
319 United States v. Larionoff, 431 U.S. 864, 872 (1977) (quoting Bowles v. Seminole Rock Co.,
325 U.S. 410, 414 (1945)) (holding that although regulations “contain[ed] a number of
ambiguities,” Navy’s interpretation of Department of Defense regulations controlled since they
were “not plainly inconsistent with wording of the regulations”).
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deference to the State’s bear baiting rules. But the Service interprets 50 C.F.R.
§ 32.2(h) as an explanatory parenthetical that “merely served to clarify that the
‘General Provision[]’ prohibiting ‘hunting over bait . . . on wildlife refuge areas’ did
not apply to refuges in Alaska, which were ‘opened to hunting, fishing and
trapping’ under ANILCA and governed by ‘specific refuge regulations.’”320 The
Service’s interpretation is not plainly erroneous nor inconsistent with the wording
of the regulation, and therefore controls.
Accordingly, the Court holds that the bear baiting restriction in the Kenai
Rule is not arbitrary and capricious.
CONCLUSION
In light of the foregoing, IT IS HEREBY ORDERED that Federal Defendants
and Intervenor-Defendants’ Motions for Summary Judgment at Docket 177 and
Docket 184 are GRANTED with respect to challenges to the Kenai Rule pursuant
to the Alaska National Interest Lands Conservation Act, the National Wildlife
Refuge System Improvement Act, and the Administrative Procedure Act, and also
pursuant to the National Environmental Protection Act with respect to the Skilak
Wildlife Recreation Area hunting restriction and the bear baiting restriction.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment
at Docket 170 is GRANTED solely with respect to the challenge pursuant to the
320 Docket 178 at 44 (quoting 58 Fed. Reg. 5065, 5069).
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National Environmental Protection Act regarding the firearms restriction in the
Kenai River and Russian River corridors. That portion of the Kenai Rule is
REMANDED to the Fish and Wildlife Service for further analysis in accordance
with the requirements of the National Environmental Protection Act.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 13th day of November, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATE DISTRICT JUDGE
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