State of Alaska, Department of Fish and Game v. Federal Subsistence Board et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STATE OF ALASKA, Department of
Fish and Game,
Plaintiff,
v.
FEDERAL SUBSISTENCE BOARD,
et al.,
Defendants,
and
ORGANIZED VILLAGE OF KAKE,
Intervenor-
Defendant.
Case No. 3:20-cv-00195-SLG
DECISION & ORDER
The 	State 	of 	Alaska, 	Department 	of 	Fish 	and 	Game 	(“the 	State”)
commenced this action on August 10, 2020 against the Federal Subsistence Board
and several federal officials (collectively, “the FSB”).1 	The Organized Village of
Kake (“OVK”) was permitted to intervene on September 14, 2020.2 	The State
1 Docket 1. The other defendants are the Regional Supervisor of the U.S. Forest Service; the
U.S. Secretary of Agriculture; the Alaska Regional Director for the Bureau of Indian Affairs; the
Alaska Regional Director for the U.S. Fish and Wildlife Service; the State Director for Alaska for
the U.S. Bureau of Land Management; the Alaska Regional Supervisor for the National Park
Service; the U.S. Secretary for the Interior; and the three public members of the FSB in their
official capacities. See Docket 1.
2 Docket 27. The Sealaska Corporation and the First Alaskans Institute filed amicus briefs. See
Docket 21-2; Docket 23; Docket 51-2; Docket 60; Docket 57-1; Docket 61. Both the OVK and
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alleges that the FSB violated the Administrative Procedure Act (“APA”), the Alaska
National Interest Lands Conservation Act (“ANILCA”), and the Government in the
Sunshine Act (“the Sunshine Act”) by (1) delegating authority to local land
managers to open emergency hunts in response to COVID-19-related food-
security concerns, authorizing an emergency hunt near the OVK, and voting on a
request for an emergency hunt from the Koyukuk Tribal Village; and (2) adopting
a temporary special action to close moose and caribou hunting on federal public
lands in Game Management Units 13A and 13B to non-federally qualified users.3
The State asks the Court to (1) enjoin the FSB from “interfering with the State’s
management,” opening emergency hunts, and delegating authority outside of
federal agencies; and (2) require the FSB to comply with ANILCA and the
Sunshine Act.4 It also requests an award of attorney’s fees and declaratory relief
finding that the FSB violated the APA, ANILCA, and the Sunshine Act.5 This 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
APA of its own force may serve as a jurisdictional predicate.”6
the amici devoted much of their briefs to the delegation issue raised by the State, which the
Court does not reach due to mootness. See infra pp. 23–29.
3 See Docket 1; Docket 49; Docket 62.
4 Docket 49 at 53–54; Docket 62 at 29–30.
5 Docket 49 at 53–54; Docket 62 at 29–30.
6 Califano v. Sanders, 430 U.S. 99, 105 (1977).
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BACKGROUND
The Court set out the background in more detail in its previous orders at
Docket 287 and Docket 37.8 The relevant laws and facts are summarized here.9
I. 	Alaska National Interest Lands Conservation Act (“ANILCA”)
In enacting ANILCA, Congress sought to preserve Alaska’s “unrivaled
scenic and geological values associated with natural landscapes,” historic sites,
and ecosystems, while also providing the continued opportunity for rural residents
to engage in a subsistence way of life.10 Title VIII of ANILCA expresses Congress’
intent that “the utilization of the public lands in Alaska is to cause the least adverse
impact possible on rural residents who depend upon subsistence uses of the
resources of such lands.”11 	Thus, Title VIII gives priority to subsistence uses,
providing that
nonwasteful subsistence uses of fish and wildlife and other renewable
resources shall be the priority consumptive uses of all such resources
on the public lands of Alaska when it is necessary to restrict taking in
order to assure the continued viability of a fish or wildlife population or
the continuation of subsistence uses of such population, the taking of
7 Dep’t of Fish & Game v. Fed. Subsistence Bd., Case No. 3:20-cv-00195-SLG, 2020 WL
5625897 (D. Alaska Sept. 18, 2020).
8 Dep’t of Fish & Game v. Fed. Subsistence Bd., 501 F. Supp. 3d 671 (D. Alaska 2020).
9 For citations, see Fed. Subsistence Bd., 2020 WL 5625897, and Fed. Subsistence Bd., 501 F.
Supp. 3d 671.
10 16 U.S.C. § 3101; see also Alaska v. Fed. Subsistence Bd., 544 F.3d 1089, 1091 (9th Cir.
2008).
11 16 U.S.C. § 3112(1).
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such population for nonwasteful subsistence uses shall be given
preference on the public lands over other consumptive uses.12
However, section 815 of Title VIII limits this subsistence priority by providing
that “restriction[s] on the taking of fish and wildlife for nonsubsistence uses on the
public lands” are not authorized “unless necessary for the conservation of healthy
populations of fish and wildlife, for the reasons set forth in section 816 [16 U.S.C.
§ 3126], to continue subsistence uses of such populations, or pursuant to other
applicable law.”13 	In turn, section 816 provides that “[n]othing in this title is
intended to enlarge or diminish the authority of the Secretary to designate areas
where, and establish periods when, no taking of fish and wildlife shall be permitted
on the public lands for reasons of public safety, administration, or to assure the
continued vitality of a particular fish or wildlife population.”14
Congress authorized the Secretaries of the Interior and Agriculture to
promulgate 	regulations 	in 	furtherance 	of 	ANILCA’s 	directives,15 	and 	the
Secretaries created the FSB and charged it with “administering the subsistence
taking and uses of fish and wildlife on public lands.”16 The FSB is composed of:
[a] Chair to be appointed by the Secretary of the Interior with the
concurrence of the Secretary of Agriculture; two public members who
possess 	personal 	knowledge 	of 	and 	direct 	experience 	with
12 Id. § 3112(2).
13 Id. § 3125(3).
14 Id. § 3126(b).
15 Id. § 3124; Fed. Subsistence Bd., 544 F.3d at 1092 & n.1.
16 50 C.F.R. § 100.10(a).
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subsistence uses in rural Alaska to be appointed by the Secretary of
the Interior with the concurrence of the Secretary of Agriculture; the
Alaska Regional Director, U.S. Fish and Wildlife Service; Alaska
Regional Director, National Park Service; Alaska Regional Forester,
U.S. Forest Service; the Alaska State Director, Bureau of Land
Management; and the Alaska Regional Director, Bureau of Indian
Affairs.17
Pursuant to 50 C.F.R. § 100.19, the FSB has the authority to adopt “special
actions.” 	The Board relied on this regulation in approving the emergency Kake
hunt and the closure of Units 13A and 13B.18 	Section 100.19(a), concerning
“emergency special actions,” provides that
[i]n an emergency situation, if necessary to ensure the continued
viability of a fish or wildlife population, to continue subsistence uses
of 	fish 	or 	wildlife, 	or 	for 	public 	safety 	reasons, 	the 	Board 	may
immediately open or close public lands for the taking of fish and
wildlife for subsistence uses, or modify the requirements for take for
subsistence uses, or close public lands to take for nonsubsistence
uses of fish and wildlife, or restrict the requirements for take for
nonsubsistence uses.19
Section 100.19(b), concerning “temporary special actions,” provides that
[a]fter adequate notice and public hearing, the Board may temporarily
close or open public lands for the taking of fish and wildlife for
subsistence uses, or modify the requirements for subsistence take, or
close public lands for the taking of fish and wildlife for nonsubsistence
uses, or restrict take for nonsubsistence uses.20
17 Id. § 100.10(b)(1).
18 The State disputes that ANILCA authorizes the federal government to adopt a regulation such
as § 100.19 to the extent it would allow the federal government to open a season as opposed to
closing a season. See Docket 49 at 26–31; infra pp. 23–24. Because the Court finds that the
State’s claims surrounding the emergency Kake hunt are moot, it does not reach this issue.
See infra pp. 23–29.
19 50 C.F.R. § 100.19(a).
20 Id. § 100.19(b).
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The FSB may not take temporary special actions unless “it determines that the
proposed temporary change will not interfere with the conservation of healthy fish
and wildlife populations, will not be detrimental to the long-term subsistence use
of 	fish 	or 	wildlife 	resources, 	and 	is 	not 	an 	unnecessary 	restriction 	on
nonsubsistence users.”21 The length of any such action must “be confined to the
minimum time period or harvest limit determined by the Board to be necessary
under the circumstances,” and a temporary opening or closure cannot “extend
longer than the end of the current regulatory cycle.”22
II. 	The Kake Hunt
In April 2020, in response to the COVID-19 pandemic, the FSB voted to
“authorize a process for sending letters of delegation to agency field managers to
allow them to open . . . hunting and fishing opportunities in response to any
demonstrated emergency situation relating to food security that rises to the level
of constituting a threat to public safety.”23 On June 2, 2020, the FSB issued such
letters to refuge managers and district rangers. 	The delegation letters provided
that local land managers could “issue emergency special actions related to food
security . . . only for reasons of public safety” and required consultation with the
Alaska Department of Fish & Game (ADF&G) “to the extent possible” prior to doing
21 Id. § 100.19(b)(1).
22 Id. § 100.19(b)(2).
23 Docket 15-2 at 1–2, ¶ 3 (Maas Decl.); Docket 4-3 at 4.
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so.24 	The FSB also required local land managers to consult with the State of
Alaska Unified Command Mass Care Group beforehand and instructed them to
defer requests for special action to the Board if the Mass Care Group “[did] not
confirm the need for [a] special action.”25 The letters specified that the delegation
of authority was effective until June 1, 2021, unless rescinded before that date.26
Soon after, Joel Jackson, the President of the OVK, wrote to the Petersburg
District Ranger, Ted Sandhofer, to renew a previous request for an emergency
hunt for the Kake community, citing food security concerns. Mr. Sandhofer, in turn,
contacted the Mass Care Group, which informed him that they could not confirm
any food shortage or supply-chain disruption in Kake. Accordingly, Mr. Sandhofer
deferred the OVK’s request to the FSB on June 12, 2020. 	He informed the FSB
that he had attempted to contact ADF&G but did not receive a response.27
The FSB considered the request at a June 22, 2020 meeting at which Mr.
Jackson testified regarding the OVK’s food security concerns. 	The FSB voted to
approve a limited season of up to 60 days to be administered by Mr. Sandhofer,
who 	then 	issued 	a 	permit 	for 	a 	“Kake 	community 	harvest . . . 	allowing 	the
24 See, e.g., Docket 4-3 at 21 (emphases in original).
25 See, e.g., Docket 4-3 at 21, 24.
26 See, e.g., Docket 4-3 at 23.
27 Mr. Sandhofer conveyed this information in a June 12, 2020 email to the FSB. See Docket 4-
3 at 38 (Ex. 4). The State appears to dispute that Mr. Sandhofer reached out to ADF&G,
asserting that “[t]here is no evidence in the record of an attempt by anyone at the local Forest
Service office to contact anyone at ADF&G.” Docket 49 at 13.
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Organized Village of Kake to harvest up to 2 antlered bull moose and 5 male Sitka
black-tailed deer per month.”28 	The permit specified that “[p]articipation in the
season 	is 	limited 	to 	Federally 	qualified 	subsistence 	users 	selected 	by 	the
Organized Village of Kake,”29 and Mr. Jackson confirmed that the harvest would
be shared with the entire Kake community. The hunt concluded on July 24, 2020,
and the harvest was distributed to 135 households in the village.
The 	Koyukuk 	Tribal 	Village 	also 	renewed 	a 	previous 	request 	for 	an
emergency hunt in early June 2020. 	Like Mr. Sandhofer, the refuge manager for
the region reached out to Mass Care Group, which responded that it was unaware
of any substantial food shortages or supply-chain disruptions. 	On July 22, 2020,
the Office of Subsistence Management informed the State that the FSB was voting
on the request by email with a July 27, 2020 deadline rather than by teleconference
due to the emergency nature of the request. The FSB ultimately did not grant the
Koyukuk Tribal Village’s special action request.30
On August 17, 2020, a week after the State commenced this action and
moved for preliminary injunctive relief, the Secretary of the Interior directed the
FSB to temporarily suspend any decisions regarding requests for COVID-19
28 Docket 4-3 at 46.
29 Docket 4-3 at 46.
30 The State appears to maintain that the FSB voted on the Koyukuk request, see Docket 49 at
23, whereas the FSB asserts that the vote, “while planned, never took place,” Docket 50 at 30
(citation omitted).
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emergency seasons until disposition of the State’s motions. 	This Court ruled on
the State’s motions on September 18, 2020 and November 18, 2020, concluding
that the State had failed to show a likelihood of success or serious questions on
the merits of its claims.31 	The FSB has not granted any additional emergency
special action requests to open hunting or fishing after this Court issued its second
order in November 2020.32 The delegation letters lapsed on June 1, 2021, and the
FSB has not renewed the delegation of authority.33
III. 	Game Management Units 13A and 13B
On 	July 	16, 	2020, 	the 	FSB 	held 	a 	public 	Work 	Session 	Meeting 	by
teleconference. 	During the meeting, the FSB considered Wildlife Special Action
20-03 (“WSA 20-03”), a proposal that the Board “close Federal public lands in
[Game Management] Unit 13 to the hunting of moose and caribou by non-Federally
qualified users for the 2020/21 season.”34 Unit 13 is a popular area for moose and
caribou hunting due to its road accessibility; it is divided into five subunits, A
through E, of which Units 13A and 13B are the most accessible. In 2019, the FSB
had rejected an identical proposal to close all of Unit 13 to non-federally qualified
31 Fed. Subsistence Bd., 2020 WL 5625897, at *13; Fed. Subsistence Bd., 501 F. Supp. 3d at
697–98.
32 See Docket 50 at 40.
33 See Docket 4-3 at 22–23; Docket 50 at 11, 40.
34 Docket 18-1 at 4.
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users for the 2019/2020 season (“the 2019 proposal”), reasoning that the closure
was not warranted under section 815 of ANILCA.
At the July 16 meeting, Lisa Maas, the Acting Policy Coordinator/Wildlife
Biologist 	for 	the 	Office 	of 	Subsistence 	Management 	(“OSM”), 	presented 	a
summary of the OSM staff’s analysis of WSA 20-03 to the FSB. 	First, she
explained that WSA 20-03’s proponent made the request due to “extreme hunting
competition” in Unit 13, that competition’s negative effects on harvest success for
federally qualified subsistence users, and public safety concerns.35 	Next, Ms.
Maas summarized written comments and public testimony from Alaska residents
and ADF&G. Supporters of WSA 20-03 cited safety and overcrowding concerns,
highlighted ANILCA’s rural subsistence priority, and noted that federal public lands
comprise only a small portion of Unit 13. 	Opponents of WSA 20-03 expressed
their belief that public lands should remain open to all and noted a lack of
conservation need. 	ADF&G’s written comments asserted that “no conservation
concerns exist for either moose or caribou in Unit 13” and that a “closure would not
likely affect hunting success . . . of Federally-qualified users or address public
safety concerns.”36
Ms. Maas next shared information about the caribou and moose population
and discussed trends in harvest success rates. She noted the OSM’s conclusion
35 Docket 18-1 at 4.
36 Docket 18-1 at 5.
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that closure to continue subsistence uses of moose was warranted based on low
moose harvest success rates for federally qualified users compared to non-
federally qualified users. 	The OSM also concluded that closure for public safety
reasons 	may 	be 	warranted 	because 	of 	the 	“intense 	hunting 	pressure,
overcrowding, disruption of hunts, and unsafe shooting practices . . . repeatedly
stated by all user groups.”37 	Ms. Maas explained that the OSM supported WSA
20-03 with two modifications: (1) closing federal public lands to non-subsistence
users only in Units 13A and 13B; and (2) extending the closure through the 2022
regulatory cycle to “reduce the administrative burden associated with processing
special action requests” because “no change in the situation” was expected in the
near future.38 	After addressing questions from Board members, Ms. Maas also
reported that the InterAgency Staff Committee (“ISC”) recommended adopting
WSA 20-03 with the OSM’s proposed modifications on the basis of public safety
and subsistence concerns.
Following Ms. Maas’s testimony, comments were solicited from the Regional
Advisory Council Chairs and the Native Liaison for the OSM, but none were
offered. Members of the public were again allowed to weigh in, and two testified—
both in support of WSA 20-03. Finally, Ben Mulligan of ADF&G offered testimony
on behalf of the State, reiterating the State’s position that federal data did not
37 Docket 18-1 at 8–9.
38 Docket 18-1 at 9.
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support the OSM’s subsistence concerns and that WSA 20-03 would not improve
public safety.
After the testimony concluded, the FSB deliberated and voted on WSA
20-03 with the OSM’s proposed modifications. 	All but one FSB member voted in
favor of the modified proposal, citing subsistence and public safety concerns.
Chad Padgett of the Bureau of Land Management voted against the proposal
based 	on 	his 	belief 	that 	the 	closure 	was 	unnecessary 	for 	conservation,
continuation of subsistence uses, or public safety.
On July 31, 2020, the FSB issued a press release explaining the closure and
answering “common questions and concerns.”39 	The release included a map of
the closure area and noted that non-federally qualified users could still “take moose
and caribou between the edge of the river and the ordinary high water mark along
navigable waters” but cautioned that both hunter and game “must be above the
actual water line . . . for the harvest to be legal.”40 	Shortly after, Mr. Mulligan
contacted the FSB via email and raised concerns that the release improperly
closed certain state lands because it implied that non-federally qualified users
could not take moose or caribou standing in navigable waters.41 Subsequently, on
September 2, 2020, the FSB issued a revised press release, clarifying that non-
39 Docket 18-2 at 1.
40 Docket 18-2 at 2 (emphasis in original).
41 See Docket 3-3 at 17–18.
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federally qualified users could take moose and caribou on gravel bars along
navigable waters below the high water mark so long as the moose and caribou
were not swimming.
LEGAL STANDARD
The State seeks invalidation of the FSB’s actions surrounding the Kake hunt
and the closure of Units 13A and 13B pursuant to § 706 of the Administrative
Procedure Act.42 	Section 706 provides that a “reviewing court shall . . . hold
unlawful and set aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law . . . [or] in excess of statutory jurisdiction, authority, or limitations.”43
The Ninth Circuit has detailed the circumstances under which an agency
action is arbitrary and capricious:
[An] agency rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered
an explanation for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.44
By contrast, an agency action is proper if “the agency considered the relevant
factors and articulated a rational connection between the facts found and the
42 Docket 49 at 9; Docket 62 at 7.
43 5 U.S.C. § 706(2).
44 Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1067 (9th Cir. 2018) (quoting Greater
Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011)).
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choices made.”45 When determining whether an action is arbitrary and capricious,
“a court is not to substitute its judgment for that of the agency,”46 particularly where
“the challenged decision implicates substantial agency expertise.”47
When an agency action is based on factual conclusions drawn from the
administrative 	record, 	the 	reviewing 	court 	must 	determine 	whether 	those
conclusions are supported by “substantial evidence.”48 	“‘Substantial evidence’ is
‘more than a mere scintilla but less than a preponderance.’”49 	This standard is
“extremely deferential,” requiring the reviewing court to “uphold the [agency’s]
findings unless the evidence presented would compel a reasonable finder of fact
to reach a contrary result.”50
Agency action is “not in accordance with the law” when it “conflict[s] with the
language of the statute.”51 	This entails “a question of statutory interpretation,
rather than an assessment of reasonableness in the instant case.”52
45 Id. (quoting Greater Yellowstone Coal., 665 F.3d at 1023).
46 Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
47 Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000).
48 Ctr. for Biological Diversity, 900 F.3d at 1068; see also Dickinson v. Zurko, 527 U.S. 150,
163–64 (1999).
49 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (quoting Sandgathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997)).
50 Monjaraz-Munoz v. I.N.S., 327 F.3d 892, 895 (9th Cir. 2003) (quoting Singh-Kaur v. I.N.S., 183
F.3d 1147, 1149–50 (9th Cir. 1999)).
51 Nw. Env’t Advocs. v. U.S. Env’t Prot. Agency, 537 F.3d 1006, 1014 (9th Cir. 2008) (quoting
City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007)).
52 Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw. Env’t Advocs., 537 F.3d at
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DISCUSSION
I. 	The Sunshine Act
The State contends that the “FSB consistently and intentionally violates the
open meetings requirement of the Sunshine [Act]” and asks this Court for injunctive
relief and an award of attorney’s fees.53 	Specifically, the State maintains that (1)
the “FSB did not publish a meeting notice for actions taken on April 9, 2020, April
14, 2020, nor for the July 22–27 email action taken on WSA 94-15; (2) “[t]he
administrative record does not include published notice for the June 22, 2020 or
July 16, 2020 meetings”; and (3) “[t]he FSB regularly holds closed meetings
without a vote to go into a closed session,” including the closed executive sessions
held before public meetings on April 20, 2020 and July 16, 2020.54 	The State
asserts that the FSB is a “federal agency” within the meaning of the Act and is thus
“bound to comply” with its open-meeting provisions.55
In response, the FSB disputes that the Sunshine Act applies, asserting that
the 	FSB 	is 	not an 	“agency” within 	the 	meaning 	of 	the 	Act’s 	open-meeting
provisions.56 	In the alternative, the FSB asserts that even if the Act applies, the
1014).
53 Docket 49 at 20, 24–26.
54 Docket 49 at 16.
55 Docket 49 at 24.
56 Docket 50 at 23–29.
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FSB has complied with it and that even if the FSB violated the Act, the only remedy
available under the Act is the release of transcripts.57
The open-meetings section of the Sunshine Act, 5 U.S.C. § 552b, provides
that “every portion of every meeting of an agency shall be open to public
observation,” subject to ten specified exceptions.58 	At least one week before a
meeting, the agency must publicly announce “the time, place, and subject matter
of the meeting, whether it is to be open or closed to the public, and the name and
phone number of the official designated by the agency to respond to requests for
information about the meeting.”59 When an agency is statutorily permitted to close
a meeting or a portion thereof, that action may only be taken if “a majority of the
entire membership of the agency” votes to do so.60
The 	Sunshine 	Act 	also 	contains 	specialized 	definitions 	of 	the 	terms
“agency,” “meeting,” and “member” for purposes of § 552b:
(1) the term “agency” means any agency, as defined in section 552(e)
of this title, headed by a collegial body composed of two or more
individual 	members, 	a 	majority 	of 	whom 	are 	appointed 	to 	such
position by the President with the advice and consent of the Senate,
and any subdivision thereof authorized to act on behalf of the agency;
(2) the term “meeting” means the deliberations of at least the number
of individual agency members required to take action on behalf of the
agency where such deliberations determine or result in the joint
57 Docket 50 at 23, 29–34.
58 5 U.S.C. § 552b(b); see also id. § 552b(c) (listing circumstances in which a meeting or portion
thereof may be closed).
59 Id. § 552b(e)(1).
60 Id. § 552b(d)(1).
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conduct or disposition of official agency business, but does not include
deliberations required or permitted by subsection (d) or (e); and
(3) the term “member” means an individual who belongs to a collegial
body heading an agency.61
The FSB contends that it does not constitute a “collegial body” within the
meaning of these provisions because “none of [its] members, much less a majority,
were appointed by the President with the advice and consent of the Senate.”62
And it maintains that the FSB is not a “subdivision thereof” because it interprets
the term to refer only to “sub-groups” of a collegial body.63 The State, by contrast,
asserts that the FSB falls under the Act’s definition of “agency” because “Congress
gave [the Secretaries of Interior and Agriculture] joint responsibilities on public
lands in Alaska,” and “the Secretaries jointly adopted regulations that delegated
their 	responsibilities 	to 	the 	FSB.”64 	Therefore, 	the 	State 	contends, 	“[t]he
Secretaries working together, and the FSB, are collegial bodies as described in
the Sunshine Act.”65
The Court finds that § 552b’s definition of “agency,” when read together with
nearby provisions, does not include the FSB.66 	To begin with, the FSB is clearly
61 Id. § 552b(a).
62 Docket 50 at 23–24.
63 Docket 50 at 24–25 (quoting Hunt v. Nuclear Regul. Comm’n, 611 F.2d 332, 335–36 (10th Cir.
1979)).
64 Docket 62 at 19–20.
65 Docket 62 at 20.
66 The Court acknowledges that its November 18, 2020 order concluded that the FSB is likely
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not a “collegial body” as defined by § 552b because none of its members are
appointed by the President with the advice and consent of the Senate.67 Thus, the
question is whether the FSB is covered by the Sunshine Act as a “subdivision.”68
Section 552b(a)(1) is ambiguous on this point; it is unclear from the section’s
wording whether “subdivision thereof” refers to a portion of the entire entity headed
by a collegial body or only to a portion of the collegial body itself. 	However, the
definitions that follow § 552b(a)(1) make clear that “subdivision thereof” refers
solely to the collegial body.69 	Section 552b(a)(2) defines “meeting” narrowly to
cover only “deliberations of at least the number of individual agency members
required to take action on behalf of the agency.” And § 552b(a)(3), in turn, defines
“member” to mean “an individual who belongs to a collegial body heading an
agency.” 	There cannot be a “meeting” under the Act without the participation of
agency heads who were appointed by the President with the advice and consent
of the Senate. 	Accordingly, it would be illogical to read “subdivision thereof” to
subject to the Open Meetings Act. See Fed. Subsistence Bd., 501 F. Supp. 3d at 688.
However, upon further consideration and with the benefit of the parties’ more thorough briefing
on the issue, including their discussion of Hunt v. Nuclear Regulatory Commission, 468 F. Supp.
817, 820 (N.D. Okla. 1979), aff’d, 611 F.2d 332, the Court has now determined that the
Sunshine Act does not apply to the FSB.
67 See 50 C.F.R. § 100.10(b)(1) (describing the composition and appointment process of the
FSB); Docket 50 at 24 n.4 (same).
68 See 5 U.S.C. § 552b(a)(1).
69 See Richard K. Berg, Stephen H. Klitzman & Gary J. Edles, A.B.A. Section of Admin. L. &
Regul. Prac., An Interpretive Guide to the Government in the Sunshine Act 6 (2d ed. 1978) (“It
should be noted that ‘subdivision thereof’ refers back to ‘collegial body,’ not to ‘agency.’
Subdivisions made up entirely of employees other than members of the collegial body are not
covered by the Act, even though they may be authorized to act on behalf of the agency.”).
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encompass boards like the FSB that could not actually hold “meetings” as defined
by the Act.70
The Northern District of Oklahoma and the Tenth Circuit reached this same
conclusion 	when 	considering 	whether 	hearings 	conducted 	by 	the 	Nuclear
Regulatory Commission’s Atomic Safety and Licensing Board (“ASLB”) were
covered under the Sunshine Act.71 Similarly to the FSB, the ASLB exercises power
pursuant to 	a 	delegation 	of authority by 	the 	commissioners 	of 	the 	Nuclear
Regulatory Commission.72 	The commissioners are appointed by the President
with the advice and consent of the Senate, but the ASLB does not itself include
any 	commissioners.73 	Given the 	ASLB’s 	structure, 	the 	Northern 	District 	of
Oklahoma concluded that the Sunshine Act did not apply to the ASLB’s hearings
because “a board or panel without ‘members’ is not a ‘subdivision’ of an agency
under the Sunshine Act.”74 	The district court explained that “[i]f such boards or
panels were meant to be covered, the ‘meeting’ requirement would have to be
70 The State’s contention that the Secretaries of the Interior and Agriculture constitute a
“collegial body” when performing joint responsibilities is inapposite. See Docket 62 at 19–20.
The Court need not determine whether that proposition is true; even if it is, the FSB itself would
not constitute an “agency” or “subdivision thereof” because the Secretaries do not sit on the
FSB or participate in its decision-making.
71 See Hunt, 468 F. Supp. at 820.
72 Id.
73 See Hunt, 611 F.2d at 334–35.
74 See Hunt, 468 F. Supp. at 820–21.
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ignored” because “meetings are deliberations of members.”75 	On appeal, the
Tenth Circuit, too, concluded that “the mandate for open hearings does not apply
to an adjudicatory hearing before [the ASLB]” because “subdivision” refers only to
when “a collegial body . . . has divided itself into sub-groups to conduct the
business of the agency.”76
The legislative history of the Sunshine Act, as noted by both courts in Hunt,77
also supports this reading of the Act. 	The Senate Report on the Act contains
numerous statements about the open-meetings section that reflect the Senate’s
intent that § 552b apply only to decision-making bodies that include members of a
collegial body. The report’s “Summary of the Legislation” section describes section
201 of the Senate bill—which became 5 U.S.C. § 552b—as designed to ensure
that meetings between agency heads are open to the public:
Section 201 applies to the Federal Election Commission and
the 46 other Federal agencies headed by two or more Commissioners
or similar officers appointed by the President with the advice and
consent of the Senate. The bill requires meetings between heads of
such agencies to be open to the public. . . .
Section 201(a) establishes the basic principle that all meetings
between the heads of these collegial agencies must be open to the
public. The term “meeting” is defined to include agency deliberations
where at least a quorum of the agency’s members meet to conduct or
dispose of official agency business. Chance encounters which do not
involve substantive discussions, and social events at which business
is not discussed, would not be covered by the section. 	Nor does the
bill cover discussions between less than quorum of the Commission,
75 Id. at 820.
76 Hunt, 611 F.2d at 335–36.
77 See Hunt, 468 F. Supp. at 820–21; Hunt, 611 F.2d at 336–37.
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or discussions between a Commissioner and any number of staff
employees.78
In its “Background and Purpose of the Legislation” section, the report states
that the open-meetings section is intended to “increase the public’s confidence in
government by permitting the public to observe firsthand the way agency heads
carry out their duties.”79 And in a section discussing the open-meetings provisions
in more detail, the report explicitly contrasts meetings involving agency heads with
those involving only staff members, explaining why the former are subject to public
scrutiny but the latter are not: “The agency heads are high public officials, having
been selected and confirmed through a process very different from that used for
staff members. Their deliberative process can be appropriately exposed to public
scrutiny in order to give citizens an awareness of the process and rationale of
decisionmaking.”80 	The 	same 	section 	of 	the 	report 	also 	clarifies 	the 	term
“subdivision thereof,” suggesting that such an entity must involve at least two
agency heads:
Section 	201(a) 	provides 	that 	all 	meetings 	of 	the 	individual
Commissioners, board members, or the like, except those discussions
exempted by subsection (b), must be open to the public. 	Included
within 	this 	requirement 	are 	meetings 	of 	agency 	subdivisions
authorized to take action on behalf of the agency. The open meeting
requirement applies to panels of a Commission, or regional boards,
consisting of two or more agency heads and authorized to take action
on behalf of the agency. 	To be a subdivision of an agency covered
78 S. Rep. No. 94-354, at 2–3 (1975) (emphases added).
79 Id. at 4–5.
80 Id. at 17.
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by this subsection, the panel need not have authority to take agency
action which is final in nature. Panels or boards composed of two or
more agency members and authorized to submit recommendations,
preliminary decisions, or the like to the full commission, or to conduct
hearings on behalf of the agency, are required by the subsection to
open their meetings to the public.81
The corresponding House Report, while less explicit on this point, also
supports a reading of the Act that would exclude the FSB from the Act’s open-
meeting requirements. 	In its discussion of section 3 of the House bill—now 5
U.S.C. § 552b—the report notes that “panels or boards authorized to submit
recommendations, preliminary decisions, or the like to the full commission, or to
conduct hearings on behalf of the agency are required to comply with the
provisions of section 552b.”82 	The report’s use of the phrase “full commission”
suggests that the House intended that covered “panels or boards” would include
at least some members of the agency’s collegial body. Similarly, the report notes
that the term “agency” includes “any subdivision thereof authorized to act on behalf
of the agency (without regard to the number of members composing or included in
the subdivision)”—again suggesting that a “subdivision thereof” includes at least
some members of the collegial body heading an agency.83
81 Id. (emphases added).
82 H.R. Rep. No. 940-880, pt. 1, at 7 (1976) (emphasis added).
83 Id. at 7.
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Both reports also emphasize that the open-meeting provisions apply only to
agencies “headed by a collegial body composed of two or more members.”84 The
Senate Report explains the reasoning behind that decision: “Multiheaded agencies
operate on the principle of give-and-take discussion between agency heads. . . .
The single-headed agency operates differently. Only the single head is ultimately
responsible for agency actions, while the staff functions as extensions of the
head.”85 	This distinction would not be warranted if employees other than the
agency heads were subject to the open-meeting provisions; a meeting between
several employees of a single-headed agency would involve the same “give-and-
take discussion” as a meeting between several employees of a multiheaded
agency. 	In sum, both the Senate and House reports indicate that the Sunshine
Act’s open-meeting provisions do not apply to the FSB.
Because the Sunshine Act does not apply to the FSB, the Court does not
reach the parties’ arguments regarding whether the FSB’s actions would constitute
a violation of the Sunshine Act and what the proper remedies for alleged violations
of the Act are.
II. 	The Kake Hunt
The State asserts that the FSB’s actions regarding the Kake hunt violated
the APA for several reasons. 	First and foremost, it maintains that “the FSB’s
84 Id. at 7; see also S. Rep. No. 94-354, at 16–17.
85 S. Rep. No. 94-354, at 16–17.
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regulation at 50 C.F.R. § 100.19 is invalid to the extent the regulation authorizes
opening a hunting or fishing season” because both the text and legislative history
of ANILCA indicate that Congress did not intend to grant such authority to federal
agencies.86 The State also contends that (1) the FSB’s decision was not supported
by 	substantial 	evidence; 	(2) 	the 	FSB 	violated 	ANILCA 	by 	delegating 	the
administration of the hunt to an entity outside a federal agency, issuing a permit
that improperly limited participation in the hunt, and initially refusing to share
certain information about the hunt with ADF&G; and (3) the FSB violated its “rules
and procedures for its own operations that require public meetings.”87
In response, the FSB asserts that (1) its actions were lawful under the APA,
ANILCA, and its own regulations; and (2) the State’s claims regarding the Kake
hunt are moot, noting that “the Kake hunt occurred over a year ago and it was the
only such hunt approved under the FSB’s COVID-19 delegation process that
expired on June 1, [2021].”88 	The Court will address the second contention as a
threshold matter as the Court lacks jurisdiction to consider the merits of the State’s
claims if they are moot and do not fall under an exception to the mootness
doctrine.89
86 Docket 49 at 26–31; Docket 62 at 10–11.
87 Docket 49 at 8, 14, 19, 31–39; Docket 62 at 11–16, 21, 29.
88 Docket 50 at 28–29, 34–47.
89 See Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933, 936 (9th Cir. 2012) (“[A]s a
prerequisite to our exercise of jurisdiction, we must satisfy ourselves that a case is not moot.”);
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“The mootness doctrine ‘requires that an actual, ongoing controversy exist
at all stages of federal court proceedings.’”90 A claim generally must be dismissed
as moot if “events subsequent to the filing of the case resolve the parties’
dispute.”91 	However, there exists an exception to the mootness doctrine for “a
controversy that is ‘capable of repetition, yet evading review.’”92 	That exception
applies where “(1) the duration of the challenged action is too short to allow full
litigation before it ceases or expires, and (2) there is a reasonable expectation that
the plaintiffs will be subjected to the challenged action again.”93 “Unlike the initial
mootness question, where the defendants have the burden, ‘[u]nder the “capable
of repetition” prong of the exception to the mootness doctrine, the plaintiffs have
the burden of showing that there is a reasonable expectation that they will once
see also Native Vill. of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1208 (9th Cir. 2021)
(“The case or controversy requirement of Article III . . . deprives federal courts of the jurisdiction
to hear moot cases.” (quoting N.A.A.C.P., W. Region v. City of Richmond, 743 F.2d 1346, 1352
(9th Cir. 1984))).
90 Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012) (quoting Pitts v. Terrible Herbst, Inc., 653
F.3d 1081, 1086 (9th Cir. 2011)); see also Arizonans for Off. English v. Arizona, 520 U.S. 43, 67
(1997) (“[A]n actual controversy must be extant at all stages of review, not merely at the time the
complaint is filed.” (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975))).
91 Leigh, 677 F.3d at 896 (quoting Pitts, 653 F.3d at 1086); see also Native Vill. of Nuiqsut, 9
F.4th at 1210 (“[O]ur duty to examine mootness is an ongoing obligation.”).
92 Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v.
Kemna, 523 U.S. 1, 17 (1998)).
93 Native Vill. of Nuiqsut, 9 F.4th at 1209 (quoting Wildwest Inst. v. Kurth, 855 F.3d 995, 1002–03
(9th Cir. 2017)); see also Kingdomware Techs., 136 S. Ct. at 1976.
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again be subject to the challenged activity . . . .’”94 	Courts apply the capable of
repetition, yet evading review exception “only in exceptional situations.”95
In its previous order at Docket 37, this Court found that the State’s claims
regarding the Kake hunt were not moot as of November 2020—in part due to the
“capable of repetition, yet evading review” exception.96 The Court explained then:
The State’s motion seeks to enjoin more than the Kake hunt: it asks
the Court to enjoin Defendants from delegating regulatory authority to
in-season managers, from opening any future hunt for COVID-19-
related reasons, from refusing to share harvest information, and from
delegating administrative authority outside of federal agencies. Thus,
to the extent the State’s motion applies to future hunts, which could
well occur during the pendency of this litigation, the completion of the
Kake 	hunt 	does 	not 	render 	the 	State’s 	request 	for 	preliminary
injunction moot.
As to the State’s challenges to the emergency Kake hunt itself,
the Court obviously cannot grant the State the relief that it seeks.
However, as the parties noted, there exists an exception to the
mootness doctrine for a controversy that is “capable of repetition, yet
evading review.” . . .
The 	Court 	concludes 	that 	the 	exception 	to 	the 	mootness
doctrine applies to the emergency Kake hunt. 	These emergency
hunts are necessarily limited to 60 days or less, which is too short a
period of time to complete judicial review. Moreover, it is reasonably
likely that Defendants may authorize other emergency hunts and that
those hunts may be delegated to members of the community to
oversee. 	The FSB’s delegation of authority to local land managers
does not expire until June 2021, and the COVID-19 pandemic is
ongoing.97
94 Native Vill. of Nuiqsut, 9 F.4th at 1209 (citation omitted) (alteration in original) (quoting Lee v.
Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985)).
95 Spencer, 523 U.S. at 17 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)).
96 Dep’t of Fish & Game v. Fed. Subsistence Bd., 501 F. Supp. 3d 671, 684–86
(D. Alaska 2020).
97 Fed. Subsistence Bd., 501 F. Supp. 3d at 685–86.
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The FSB acknowledges the Court’s prior decision but contends that “today’s
changed circumstances require a different result,” noting that “[t]he delegation
process has expired and the COVID-19 pandemic has abated considerably.”98 	It
asserts that the “capable of repetition, but evading review” exception does not
apply because the 	FSB “[has] not authorized similar hunts, [has] not issued
renewed delegations, and there is no basis in the present record for finding that
the Kake hunt creates a template or is any way predictive of the FSB’s response
to a different request.”99 	Rather, the FSB maintains, “[t]he Kake hunt was a
discrete response on a particularized record to address one remote community’s
needs during a global pandemic.”100
The State appears to concede that—given the expiration of the delegation
process—its claims are moot unless a mootness exception applies. 	It contends
that the “capable of repetition, but evades review” exception is applicable here
because it is “certainly possible” that the FSB could authorize similar hunts or issue
further delegations in the future, and those incidents would be sufficiently brief to
evade review.101 Regarding the likelihood of future actions, the State asserts that
“there is no commitment by the FSB to not issue further delegations, nor is there a
98 Docket 50 at 40. When the FSB filed its brief in July 2021, the COVID-19 pandemic had
abated considerably, but Alaska experienced another surge in fall 2021. See infra notes 103–
04.
99 Docket 50 at 40–41.
100 Docket 50 at 40.
101 Docket 62 at 18.
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commitment by the FSB to not, itself, authorize opening further Covid-19-related
hunting or fishing seasons.”102 And it disputes the FSB’s claim that the pandemic
has “abated considerably,”103 pointing to “the current pandemic surge throughout
Alaska and the fact that hospitals are now overwhelmed,” which was certainly the
case when its reply brief was filed on August 27, 2021.104
The Court is unpersuaded that the instant motion presents an “exceptional
situation” justifying the application of the “capable of repetition, yet evading review”
exception. 	The sixty-day length of the Kake hunt certainly satisfies the limited
durational 	requirement 	of 	the 	exception,105 	and 	the 	one-year 	length 	of 	the
delegation likely does as well.106 	But the exception also requires the plaintiff to
demonstrate “a reasonable likelihood” that they will be subject to the same action
again.107 	This Court’s previous conclusion that the Kake hunt was subject to the
exception was premised on the FSB’s then-ongoing delegation to local land
managers,108 but that delegation has since expired. 	And the State has failed to
102 Docket 62 at 17.
103 Docket 50 at 40.
104 Docket 62 at 17.
105 See Docket 62 at 19 (explaining that the deadline for serving an answer in federal court and
the “general timelines required in litigation” would “make it next to impossible” to challenge 60-
day emergency seasons (citing Fed. R. Civ. P. 12(a)(2))).
106 See, e.g., Kingdomware Techs., 136 S. Ct. at 1976 (allowing judicial review of expired short-
term contracts that were performed in less than two years).
107 See id.; see also Lyons, 461 U.S. at 109.
108 See Fed. Subsistence Bd., 501 F. Supp. 3d at 686 (concluding “it is reasonably likely that
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demonstrate that another such delegation is reasonably likely. The parties appear
to agree that the FSB had never delegated the authority to open emergency
seasons 	before 	the 	2020 	delegation,109 and 	the 	FSB 	has 	not 	renewed 	the
delegation or indicated any intention of doing so. Moreover, even when the 2020
delegation was active, the FSB only approved one emergency season: the Kake
hunt. 	And while the State is correct that COVID-19 rates increased considerably
this fall in Alaska, there is no indication in the record that food security concerns in
rural communities are ongoing. Given all this, there is not a reasonable likelihood
that the FSB will issue a similar delegation to local land managers or approve
similar hunts in the future—thus, the State’s claims do not satisfy the “capable of
repetition, yet evading review” exception to the mootness doctrine. 	Because the
State’s claims regarding the Kake hunt must be dismissed as moot, the Court does
not reach the merits of those claims.110
III. 	Closure of Units 13A and 13B
The State alleges that the FSB’s decision to close Units 13A and 13B to non-
federally qualified users was arbitrary and capricious. 	The State bases this
Defendants may authorize other emergency hunts” because “[t]he FSB’s delegation of authority
to local land managers does not expire until June 2021”); id. (distinguishing Fund for Animals v.
Mainella, 335 F. Supp. 2d 19 (D.D.C. 2004), on the basis that “the FSB’s continued delegation
of authority to local land managers allows them to open emergency 60-day hunts”).
109 See Docket 49; Docket 50; Docket 62.
110 See Native Vill. of Nuiqsut, 9 F.4th at 1216 (“With the case being moot, our court and the
district court are without jurisdiction to decide this case. . . . [B]ecause we do not have
jurisdiction, we cannot consider the merits of Plaintiffs’ claims.”).
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contention on the following grounds: First, the FSB violated ANILCA by imposing
restrictions on an improper basis. Second, the record lacked substantial evidence
to support the FSB’s closure decision. 	Third, the FSB closed state lands over
which it has no authority in violation of ANILCA. 	Fourth, the FSB’s actions
interfered with the State’s authority to manage wildlife in violation of ANILCA. Fifth,
the FSB failed to provide a reasoned explanation for its change in position given
that it rejected a similar proposal in 2019. 	Sixth, the FSB violated its own
regulations by closing the units for longer than necessary. 	Seventh, the FSB
violated “rules and procedures for its own operations that require public meetings.”
And eighth, the FSB violated APA § 553 in imposing the closure because it “failed
to provide proper notice and grace periods, where no exigency existed.”111 	The
Court does not address the State’s final two grounds because they were not raised
in the State’s Complaint or Opening Brief but rather raised for the first time in the
State’s Reply.112 The Court will address each of the State’s remaining contentions
in turn.
First, the State asserts that “[n]othing in ANILCA or caselaw allows a closure
to avoid competition from other hunters.”113 	It points to section 815 of ANILCA,
111 Docket 49 at 40–53; Docket 62 at 6–9, 23–29.
112 See Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996) (“Issues raised for the first time in the
reply brief are waived.” (citing Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990));
Docket 1 at 2, ¶ 2; Docket 49; see also Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir.
2009) (“Arguments made in passing and inadequately briefed are waived.”).
113 Docket 49 at 41. The State asserted earlier in this litigation that “public safety” was also an
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which allows the federal government to adopt restrictions on non-subsistence uses
if “necessary for the conservation of healthy populations of fish and wildlife, for the
reasons set forth in section 3126 of this title [section 816], to continue subsistence
uses of such populations, or pursuant to other applicable law.”114 In response, the
FSB contends that the State’s reading of ANILCA “defies common sense and basic
concepts of causality” because ANILCA’s subsistence priority plainly allows the
federal government to manage “user conflict.”115 	It notes that Title VIII “explicitly
directs 	the 	FSB 	to 	prioritize 	subsistence 	uses 	over 	non-subsistence 	uses,”
directing the FSB to “discriminat[e] between different types of hunters, i.e.,
subsistence and non-subsistence hunters.”116
The Court finds that the FSB instituted the closure on permissible bases
under section 815. 	Although “competition” is not an enumerated reason for the
restriction of non-subsistence uses under section 815, the Board clearly viewed
competition between users as linked to both subsistence and public safety
concerns—the overarching reasons for its decision to adopt WSA 20-03. 	When
testifying before the FSB, Ms. Maas explicitly drew this connection, explaining the
OSM’s conclusion that “[a] closure may reduce competition from non-Federally-
improper basis for closure, see Docket 3-1 at 11, but it appears to have abandoned that
contention.
114 16 U.S.C. § 3125(3).
115 Docket 50 at 48.
116 Docket 50 at 49.
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qualified users, increasing hunting opportunity and harvest success of Federally-
qualified subsistence users.”117 	Further, much of the testimony presented to the
FSB linked public safety concerns to overcrowding. 	Given the clear connection
between competition and two of the permissible bases for restrictions under
section 815, it was not improper for the FSB to mention “competition” when
discussing its subsistence and public safety rationales for adopting WSA 20-03 as
modified.
Second, the State contends that “[t]he record lacks substantial evidence to
support a conclusion that any closure, much less an extended closure, was
necessary to continue subsistence.”118 It asserts that “the FSB disregarded written
comments and relied solely on Lisa Maas, who selectively presented only partial
information.”119 	The State primarily disputes that federally qualified users are
negatively impacted by competition from state hunters, noting that “[t]he record
shows that federally qualified users had longer seasons for both moose and
caribou, with the areas already to themselves without competition from hunters
who may only hunt under State regulations.”120 	It asserts that the FSB “ignored”
information presented to it on this point, highlighting a memorandum submitted to
117 Docket 18-1 at 8; see also Docket 18-1 at 8–9 (testimony of Ms. Maas) (discussing safety
concerns resulting from “intense hunting pressure” and “overcrowding”).
118 Docket 49 at 44.
119 Docket 62 at 24.
120 Docket 49 at 43–44.
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the Board by Mr. Mulligan that concluded that “[f]ederal hunt data does not support
the interpretation that the number of state hunters in the field negatively impacts
either moose or caribou hunt success on federal permits in Unit 13.”121 The State
also asserts that the FSB’s suggestion that “federally qualified hunter success may
be declining . . . is contradicted by information in the record that annual harvest
rates have remained consistent.”122 	Further, the State appears to suggest that
there are other explanations for lower rates of success for federally qualified
subsistence uses, asserting that “[t]he FSB did not even consider hunter effort,
even though people previously testified they were not hunting.”123
The State also disputes the FSB’s conclusion that public safety concerns
warranted the closure. It quotes the Mulligan memorandum, which concluded that
“no hunting-related accidents have been reported in Unit 13 to substantiate a
public 	safety 	concern 	related 	to 	excessive 	hunting 	pressure.”124 	The
memorandum conceded that “questionable hunting practices do create a public
safety concern when caribou are migrating across the Richardson Highway”
because of “traffic jams caused by hunters walking on and/or parking on the
121 Docket 49 at 46; see also Docket 32-3 at 204 (Mulligan memorandum).
122 Docket 62 at 27–28 (citing Docket 32-3 at 44 (testimony of Ms. Maas) (summarizing ADF&G
written comments); Docket 32-3 at 62 (statement of Mr. Padgett)).
123 Docket 62 at 24; see also Docket 62 at 26 (“[I]t is important to keep in mind that opportunity
is provided but there is no promise of success. The diligence and effort of a hunter are critical
factors.”).
124 Docket 49 at 47 (quoting Docket 32-3 at 205 (Mulligan memorandum)).
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pavement of the Richardson Highway in narrow and dangerous sections of the
road.”125 	However, the memorandum maintained that this situation would occur
regardless of whether state hunters were restricted from hunting caribou.126
The FSB responds that the State is merely “second-guessing the FSB’s
exercise of discretion, which is not a sufficient basis for overturning an agency
decision under the APA.”127 It maintains that it did not “fail[] to consider [the State’s]
preferred facts” but rather “assigned them a different weight and drew different
conclusions.”128 	It points out that the State “list[s] a number of facts and issues
that the FSB allegedly ‘ignored,’ but confusingly references pages in the transcript
of the July 16, 2020, meeting where the FSB literally discussed those same facts
and issues.”129 	As one example, the FSB notes that federally qualified hunters’
additional harvest opportunities “[were] addressed in the OSM Staff Analysis, and
were thereby considered by the FSB.”130
Moreover, the FSB disputes the State’s contention that federally qualified
users have access to meaningfully greater harvest opportunities. 	It asserts that
125 Docket 32-3 at 205.
126 Docket 32-3 at 205.
127 Docket 50 at 51.
128 Docket 50 at 51.
129 Docket 50 at 51 (noting that Mr. Mulligan’s memorandum was provided to the FSB and was
“fully considered when making [the] decision—hence its inclusion in the administrative record”).
130 Docket 50 at 19.
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“[a]ny discussion about additional opportunities for federal subsistence users in the
form of a longer hunting season fails to recognize that, in recent years, ADFG has
issued emergency orders extending its season beyond the approved end date of
the [sic] September 21, which has negated the rural priority on public lands and
undermined the FSB [sic] efforts to meet its mandate under Title VIII.”131 	And it
notes that “[w]hile the season for moose opens one month earlier for Federally-
qualified subsistence users, ‘most moose are harvested in mid-September due to
cooler weather and increased bull susceptibility to harvest’ limiting any Federal
subsistence priority afforded by the longer season.”132
Further, the FSB contends there was ample evidence in the record showing
that “closure is warranted for continuations of subsistence uses.”133 It asserts that
“[f]ederal subsistence harvest success rates have been lower than for State
hunters, a fact noted by the FSB in reaching its decision.”134 	In particular, it
highlights subsistence hunters’ lower success rate for moose harvesting, noting
that the fact that “those most dependent on the resource are suffering such
131 Docket 50 at 19–20; see also Docket 50 at 51 (“A fact that Plaintiff actively ignores in its
briefs, however, is that in recent years, the State has issued emergency orders extending the
caribou season to end on the same day as the Federal season . . . .”); Docket 18-1 at 6 (“One
testifier pointed out that ADF&G has extended the State’s fall caribou season in recent years
precluding a rural priority from a longer fall season.”).
132 Docket 50 at 20 (quoting Docket 32-3 at 191).
133 Docket 50 at 52.
134 Docket 50 at 20 (citing Docket 32–3 at 47, 65).
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dismissal 	success 	rates 	in 	itself 	argues 	for 	action 	to 	be 	taken 	to 	continue
subsistence uses.”135
The record demonstrates that the FSB relied on public safety concerns as
one basis for adopting WSA 20-03 as modified.136 The FSB’s decision was based
in part on testimony by the proponent, who stated that “the area is too crowded to
safely hunt as people aim guns at one another and shoot over people’s heads,”137
and testimony by multiple members of the public who “echoed these safety and
overcrowding concerns.”138 	The OSM and the ISC cited public safety concerns
when recommending that the FSB adopt the modified proposal.139 The FSB also
adopted the closure as “necessary . . . to continue subsistence uses.”140 	That
determination was based on testimony by the proponent that a closure was
135 Docket 50 at 52.
136 See Docket 18-1 at 26–27.
137 Docket 18-1 at 6 (testimony of Ms. Maas) (summarizing proponent’s rationales).
138 Docket 18-1 at 6 (testimony of Ms. Maas) (summarizing testimony from public hearing on
WSA 20-03); see also Docket 18-1 at 21 (public comment) (“My concern is dealing simply with
the public safety issues. . . . I have had numerous very dangerous situations with road hunting
in the area and just the amount of traffic on the highway does present a significant public hazard
to me, personally. And I think this would be a good step in the right direction.”).
139 Docket 18-1 at 8–9 (testimony of Ms. Maas) (“Closure for reasons of public safety may be
warranted. Safety concerns resulting from intense hunting pressure, overcrowding, disruption of
hunts, and unsafe shooting practices have been repeatedly stated by all user groups.”);
Docket 18-1 at 17 (“The InterAgency Staff Committee concurs with the OSM Staff analysis that
the request . . . is justifiable to improve safety and reduce user conflicts . . . . [S]pacial and
temporal concentration of hunters along the highway on Federal lands has the potential to lead
to serious safety issues and has already led some subsistence users to avoid the area thus
reducing opportunity.”).
140 16 U.S.C. § 3125(3); Docket 18-1 at 26.
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“necessary 	due 	to 	extreme 	hunting 	competition . . . 	which 	precludes 	a 	rural
subsistence priority and results in low harvest success by Federally-qualified
subsistence users,”141 testimony by members of the public,142 and household
surveys in which “almost every Unit 13 community noted concern over non-local
hunters[,] stating that non-local hunters who have lots of expensive equipment
were out competing local hunters and driving game away.”143 The FSB also relied
on the OSM’s recommendation, which highlighted lower moose harvest success
rates for federally qualified users compared to non-federally qualified users,144 and
the ISC’s recommendation, which agreed that a closure was justifiable to continue
subsistence uses of moose and caribou in Units 13A and 13B.145 	The State
contends that the FSB “relied solely on Lisa Maas” in making its decision, but the
record demonstrates that the FSB heard from multiple members of the public and
other stakeholders. 	Further, it was reasonable for the FSB to heavily weigh Ms.
141 Docket 18-1 at 4 (testimony of Ms. Maas) (summarizing the proponent’s rationales).
142 Docket 18-1 at 6 (testimony of Ms. Maas) (“Several supporters of the request referenced Title
VIII of ANILCA calling for a rural subsistence priority. One testifier pointed out that ADF&G has
extended the State’s fall caribou season in recent years precluding a rural priority from a longer
fall season.”).
143 Docket 18-1 at 7 (testimony of Ms. Maas).
144 Docket 18-1 at 7–8; see also Docket 18-1 at 8 (“[A]s most caribou harvest occurs under
State regulations and caribou in Unit 13 experience extremely heavy hunting pressure, a
closure may reduce competition and limit disruption to caribou movements which may increase
hunting opportunity and harvest success by Federally-qualified subsistence users.”).
145 Docket 18-1 at 17.
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Maas’s testimony given that she not offering her personal opinion, but rather
summarizing testimony and data from multiple other sources.
The record also reflects that the FSB considered alternatives to WSA 20-03
as modified. Mr. Peltola raised the possibility of limiting federal permits instead of
imposing the closure.146 	The OSM responded that permits issued under federal
regulations had increased only slightly in the past several years, so it was unlikely
that 	the 	suggested 	alternative 	would 	meaningfully 	reduce 	competition 	for
subsistence 	users.147 	FSB 	member 	Greg 	Siekaniec 	suggested 	a 	shorter
temporary closure from September 21 to 30 to “provide that additional opportunity”
for federally qualified users during the caribou season,148 which the OSM opined
“would probably help the issue but . . . wouldn’t be a complete solution addressing
the 	local 	subsistence 	users 	[sic] 	concern 	for 	the 	immense 	competition 	and
safety . . . [and] would not really address the moose hunt at all.”149 Both Mr. Peltola
and Mr. Siekaniec ultimately voted in favor of the modified proposal.150 	While
some members of the public and Mr. Padgett contended that public safety issues
146 Docket 18-1 at 9–10.
147 Docket 18-1 at 11.
148 Docket 18-1 at 12.
149 Docket 18-1 at 12.
150 Docket 18-1 at 25–26.
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were better addressed by increased law enforcement,151 other FSB members
rejected that alternative as “outside of the Board’s purview.”152
Further, the FSB did not “ignore” opposing viewpoints as the State contends.
At the July 16 meeting, the Board heard testimony in opposition to WSA 20-03
from members of the public and a representative of ADF&G, Mr. Mulligan.153 	At
the same meeting, Ms. Maas also summarized written comments in opposition
from Resident Hunters of Alaska, opposing testimony given by members of the
public during a previous public hearing on the matter, and written comments from
ADF&G.154 	The OSM’s Staff Analysis also addressed these comments and
included Mr. Mulligan’s memorandum in full in an appendix.155
Based on the foregoing, the Court finds that there was substantial evidence
in the record to support the FSB’s decision to adopt WSA 20-03 as modified.
Under the highly deferential “substantial evidence” standard, an agency’s findings
are proper “unless the evidence presented would compel a reasonable finder of
fact to reach a contrary result.”156 Here, the FSB considered the relevant factors,
151 Docket 18-1 at 7, 23.
152 Docket 18-1 at 26 (statement of Mr. Striker); see also Docket 18-1 at 9 (testimony of Ms.
Maas) (“While these concerns may be better addressed through increased law enforcement or
restrictions along road sides, these options have not been implemented and are outside of the
Board’s authority.”).
153 See Docket 18-1 at 5, 21–22.
154 Docket 18-1 at 5–7.
155 See Docket 32-3 at 174, 184–85, 201–06.
156 Monjaraz-Munoz, 327 F.3d at 895 (quoting Singh-Kaur, 183 F.3d at 1149–50).
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the record contained ample evidence to support the Board’s decision, and the
Board articulated a rational connection between that evidence and its decision.
Third, the State contends that the FSB improperly closed State lands. 	It
asserts that the FSB’s initial announcement of the closure “improperly informed
the public that the federal closure also closed state lands, including submerged
lands, within federal boundaries.”157 	The FSB responds that it issued a revised
press release on September 2, 2020, “clarifying that non-Federally qualified users
can take moose and caribou on gravel bars along navigable waters below the
ordinary high water mark even when the adjacent uplands are Federal public lands
because those gravel bars are state-owned submerged lands.”158 	But the State
notes that the press release was issued after State caribou and moose seasons
had begun and contends that it only partially corrected the FSB’s error because it
“did not reflect that all navigable water below the high water mark is State land.”159
The original press release did not in itself close any state lands; but it did
state that non-federally qualified hunters could “take moose and caribou between
the edge of the river and the ordinary high water mark along navigable waters on
BLM lands.”160 	The release stated that hunting was permissible on “the strip of
157 Docket 49 at 48.
158 Docket 50 at 52.
159 Docket 62 at 26.
160 Docket 32-3 at 213.
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land—often a gravel or mud bar—between the edge of the river and the ‘ordinary
high water mark,’”161 which may have implied to some readers that gravel bars
within the river were off limits; however, the release did not explicitly state that such
gravel bars were closed to non-federally qualified users. 	The release also
cautioned that “both the hunter AND the caribou must be above the actual water
line . . . for the harvest to be legal.”162 Based on the briefing for the instant motion,
both the State and the FSB now appear to agree that the State has authority over
lands below the high water mark of inland navigable waters.163 Thus, to the extent
that moose and caribou standing on the riverbed partially submerged in water are
considered “below the water line,” the State is correct that the original press
release misstated the bounds of federal and state lands.
The revised press release, while not a model of clarity, resolved the gravel-
bar 	ambiguity 	and 	corrected 	the 	original 	press 	release’s 	error 	regarding
submerged lands. 	First, the revised release simply stated that “non-Federally
qualified users [can] take moose and caribou on gravel bars along navigable
waters below the ‘ordinary high water mark.’”164 	Second, the FSB removed the
161 Docket 32-3 at 213.
162 Docket 32-3 at 213.
163 See Docket 49 at 48; Docket 50 at 52; Docket 62 at 26; see also United States v. Alaska, 521
U.S. 1, 6 (1997); Alaska Statehood Act, Pub. L. No. 85-508, § 6(m), 72 Stat. 339, 343 (1958)
(codified as amended at 43 U.S.C. § 1301 note (Application to State of Alaska)); Lessee of
Pollard v. Hagan, 44 U.S. (3 How.) 212, 228–29 (1845).
164 Docket 24-2 at 2.
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language requiring game to be above the actual water line, thus no longer advising
hunters not to take moose or caribou standing on the riverbed. The revised release
also noted that “the taking of swimming moose and caribou is prohibited under
Federal and State law in all portions of Unit 13,”165 implying that taking game that
is not swimming but rather standing in the water is permissible. Given the above,
the Court finds that the revised press release does not inform the public that a non-
federally qualified hunter is prohibited from taking a moose or caribou standing in
navigable waters.
Fourth, the State maintains that the FSB’s approval of WSA 20-03 violated
ANILCA because it impeded the State’s ability to manage wildlife as required by
the Alaska Constitution. 	The State notes that ANILCA “expressly protect[s] the
State’s authority to manage wildlife, including on federal public lands,” by requiring
that closures by the federal government be “necessary” under section 815.166 This
contention is not separable from the State’s first two claims, rejected above, that
the FSB closed Units 13A and 13B on an improper basis and that the record lacked
substantial evidence to support a closure to continue subsistence uses. 	By
granting to federal agencies the authority to impose closures under certain
circumstances, ANILCA necessarily tolerates some level of federal interference
with state authority if an action is otherwise permissible under section 815. Thus,
165 Docket 24-2 at 2 (citing 50 C.F.R. § 100.26(b)(15); Alaska Admin. Code tit. 5, § 92.085(7)).
166 Docket 49 at 48–50.
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because the FSB’s decision rested on proper grounds and was supported by
substantial evidence, it did not upset the balance that ANILCA strikes between
state and federal authority.
Fifth, the State asserts that the FSB violated the APA because “[t]here was
no new factual information before the FSB in 2020 to support an arbitrary change
in position after denying an identical proposal in 2019.”167 	The Supreme Court
addressed what the APA requires when an agency changes its policy in FCC v.
Fox Television Stations, Inc.168 Per Fox, “a policy change complies with the APA
if the agency (1) displays ‘awareness that it is changing position,’ (2) shows that
‘the new policy is permissible under the statute,’ (3) ‘believes’ the new policy is
better, and (4) provides ‘good reasons’ for the new policy, which, if the ‘new policy
rests upon factual findings that contradict those which underlay its prior policy,’
must include ‘a reasoned explanation . . . for disregarding facts and circumstances
that underlay or were engendered by the prior policy.’”169
The State describes the 2019 proposal as “identical” and asserts that the
policy change was not based on “new facts” because “selecting the areas where
accessible federal public lands are located and extending the closure to two years[]
167 Docket 49 at 50; see also Docket 49 at 50 (“It is a violation of the APA for an agency to not
provide a reasoned explanation for disregarding its previous factual findings.” (citing Friends of
Alaska Wildlife Refuges v. Bernhardt, 381 F. Supp. 3d 1127, 1139 (D. Alaska 2019))).
168 556 U.S. 502 (2009).
169 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015) (quoting Fox,
556 U.S. at 515–16 (emphasis omitted)).
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do not constitute ‘new information’ brought before the FSB.”170 The FSB responds
that the policy change was justified both because the 2019 proposal and WSA 20-
03 as adopted differed in scope and because the FSB considered new information
in adopting WSA 20-03.171 	First, it notes that “[t]he 2019 proposal would have
closed the entirety of Unit 13,” whereas “the 2020 decision was much more
limited,” and it maintains that “[this] limitation factored heavily into the FSB’s
analysis and reasoning.”172 	Second, the FSB asserts that it considered new
information regarding the success rates of federally qualified subsistence users:
that federally qualified users had an 11% success rate in the moose harvest
compared to a 17% success rate for non-federally qualified users.173
The Court finds that the FSB’s decision to adopt WSA 20-03 after rejecting
the 2019 proposal complies with Fox’s requirements for policy changes and thus
was not arbitrary and capricious. 	First, the record demonstrates that the FSB
displayed 	“awareness 	that 	it 	[was] 	changing 	position” 	during 	the 	2020
deliberations.174 Mr. Siekaniec, for example, raised concerns over the similarity of
the 2020 and 2019 proposals, which Ms. Maas addressed by explaining the
difference 	in 	scope 	between 	the 	2019 	proposal 	and 	the 	OSM’s 	proposed
170 Docket 50 at 51.
171 See Docket 50 at 52–53.
172 Docket 50 at 53.
173 Docket 50 at 53; see also Docket 18-1 at 7–8.
174 Fox, 556 U.S. at 515 (emphasis omitted).
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modification in 2020.175 	The OSM and other FSB members referenced the 2019
proposal at other points throughout the work session as well.176 Second, the FSB
asserts that the new policy is “permissible under the statute” as discussed
above.177 Third, the FSB’s decision to adopt WSA 20-03 evidences its belief that
the new policy is better.178
Whether the FSB must satisfy the fourth Fox requirement of a “reasoned
explanation” for its policy change depends on whether it relied on factual findings
that contradict those underlying its decision on the 2019 proposal.179 In rejecting
the 2019 proposal, the Board reasoned that the closure was not warranted for
continuation of subsistence uses because “[f]ederally-qualified subsistence users
[sic] annual harvest rates have remained fairly consistent in comparison to the
annual harvest rates by non-Federally-qualified users.”180 	And it found that “the
closure 	would 	not 	have 	alleviated 	public 	safety 	concerns 	as 	non-Federally-
qualified users would still have been able to cross Federal public lands to access
175 Docket 18-1 at 13.
176 See, e.g., Docket 18-1 at 5 (Ms. Maas discussing the 2019 proposal); Docket 18-1 at 10
(FSB member Peltola noting that “the Board addressed a similar proposal 19-03 which was
rejected by the Board”).
177 See supra pp. 31–32.
178 See Fox, 556 U.S. at 515 (“It suffices that . . . the agency believes it to be better, which the
conscious change of course adequately indicates.”); Organized Vill. of Kake, 795 F.3d at 967
(“[W]e assume the Department ‘believes’ the new policy is better because it decided to adopt it.”
(quoting Fox, 556 U.S. at 515 (emphasis omitted))).
179 See Organized Vill. of Kake, 795 F.3d at 966 (quoting Fox, 556 U.S. at 516).
180 Docket 18-1 at 5 (testimony of Ms. Maas).
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State and private lands.”181 	In 2020, by contrast, it adopted WSA 20-03 as
modified because it determined that the closure was necessary to address public
safety concerns and to continue subsistence uses.182 Because these findings are
contradictory, the Board must provide a “reasoned explanation . . . for disregarding
facts and circumstances that underlay or were engendered by the prior policy.”183
The FSB has fulfilled its duty to provide such a reasoned explanation. First,
the record demonstrates that the OSM’s proposed modification to WSA 20-03,
reducing its scope to only Units 13A and 13B, caused the FSB to weigh the
available information differently than it had in 2019—concluding that a partial
closure of Unit 13 was warranted even if a full closure was not. Indeed, one FSB
member stated that he would have voted against WSA 20-03 in its unmodified
form.184 Second, the FSB also considered newly available moose harvest success
rates for federally qualified users, which showed that subsistence users were
experiencing low success on both an absolute and relative scale.185 	The Board
highlighted this new information in concluding that a closure was warranted for
181 Docket 18-1 at 5 (testimony of Ms. Maas).
182 See Docket 18-1 at 26.
183 Fox, 556 U.S. at 516.
184 See Docket 18-1 at 24 (statement of Mr. Striker); see also Docket 18-1 at 26 (statement of
Mr. Striker) (“[W]e believe that this action is . . . targeted to problem areas.”).
185 See Docket 18-1 at 7–8 (testimony of Ms. Maas).
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continuation of subsistence uses.186 Particularly given that “[m]ost moose harvest
on Federal lands occurs in Unit 13B,”187 the FSB’s reliance on the proposed
reduced scope of the closure and the new data about moose harvest success is
sufficient to constitute a reasoned explanation for departing from the factual
findings underlying the Board’s decision on the 2019 proposal.
Sixth, the State contends that the FSB violated its own regulation—50
C.F.R. § 100.19(b)—by instituting a two-year closure instead of a shorter one.188
Section 100.19(b)(2) governs the duration of temporary special actions: “The
length of any temporary action will be confined to the minimum time period or
harvest limit determined by the Board to be necessary under the circumstances.
In any event, a temporary opening or closure will not extend longer than the end
of the current regulatory cycle.”189 	The State focuses on the “minimum time
period . . . necessary” language, asserting that the two-year duration of the closure
was not necessary but rather was selected solely to “avoid an administrative
burden.”190 The FSB responds that the two-year closure, extending to the end of
186 See Docket 18-1 at 26 (statement of Mr. Striker) (“I think there’s a little bit of new information
in the success rates that we have most recently and it’s troubling to us that the Federally-
qualified subsistence user success rate is significantly lower than non-Federally-qualified users.
That doesn’t seem to be the direction we’re supposed to head in.”).
187 Docket 18-1 at 8 (testimony of Ms. Maas).
188 Docket 49 at 8.
189 50 C.F.R. § 100.19(b)(2).
190 Docket 49 at 52.
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the regulatory cycle, “would justifiably reduce administrative burdens” due to the
longstanding nature of the issues in Unit 13 and the fact that “‘no change in the
situation’” was expected in the next year.191
The Court finds that the two-year closure did not violate § 100.19(b)(2)’s
requirement that closures be only for the minimum time necessary. 	The OSM’s
suggestion that extending the closure could reduce “administrative burden” was
explicitly premised on its belief that the ongoing nature of the issues in Unit 13
would inevitably result in the need to process an identical request in a year’s
time.192 Given the OSM’s recommendation and the information in the record,193 it
was reasonable for the FSB to conclude that two years was the “minimum time
period . . . necessary under the circumstances.” 	Thus, the FSB’s adoption of the
OSM’s recommendation did not run afoul of § 100.19(b)(2).
CONCLUSION
For the foregoing reasons, Plaintiff’s request for declaratory and permanent
injunctive relief is DENIED. The Court lacks jurisdiction over the issues associated
with the Kake hunt because that portion of the State’s claims are moot, and the
191 Docket 50 at 53–54 (quoting Docket 32-3 at 48).
192 See Docket 18-1 at 9 (testimony of Ms. Maas) (“This has been an issue for decades, [and]
no change in the situation [is] expected between this year and the next.”).
193 See, e.g., Docket 18-1 at 7 (testimony of Ms. Maas) (“Conflicts between local and non-local
hunters has [sic] been a longstanding issue in Unit 13.”); Docket 18-1 at 9 (testimony of Ms.
Maas) (“[S]afety concerns have been an issue for decades . . . .”); Docket 18-1 at 26 (statement
of Mr. Striker) (“[W]e’ve had serious safety concerns that have remained unaddressed for
decades potentially.”).
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FSB’s decision to close Units 13A and 13B to non-subsistence users was not
arbitrary or capricious.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 3rd day of December, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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