Safari Club Int'l v. Haaland

31 F.4th 1157

SAFARI CLUB INTERNATIONAL, Plaintiff-Appellant,

and

State of Alaska, Plaintiff,

v.Debra HAALAND, in her official capacity as Secretary of the Department of the Interior; Mitch Ellis, in his official capacity as Chief of Refuges for the Alaska Region of the United States Fish and Wildlife Service ; Sara Boario, in her official capacity as Alaska Regional Director, United States Fish and Wildlife Service; Martha Williams, in her official capacity as Director of U.S. Fish and Wildlife Service ; Bert Frost, in his official capacity as Alaska Regional Director, National Park Service ; Charles F. Sams, III, in his official capacity as Director of the National Park Service; United States Fish and Wildlife Service ; National Park Service ; U.S. Department of the Interior, Defendants-Appellees,Alaska Wildlife Alliance ; Alaskans for Wildlife; Friends of Alaska National Wildlife Refuges; Denali Citizens Council ; Copper Country Alliance; Kachemak Bay Conservation Society ; Defenders of Wildlife; National Parks Conservation Association ; National Wildlife Refuge Association; Northern Alaska Environmental Center; The Wilderness Society, Inc.; Wilderness Watch; Sierra Club; Center for Biological Diversity ; The Humane Society of the United States, Intervenor-Defendants-Appellees.

State of Alaska, Plaintiff-Appellant,

and

Safari Club International, Plaintiff,

v.Debra Haaland, in her official capacity as Secretary of the Department of the Interior; Mitch Ellis, in his official capacity as Chief of Refuges for the Alaska Region of the United States Fish and Wildlife Service ; Sara Boario, in her official capacity as Alaska Regional Director, United States Fish and Wildlife Service; Martha Williams, in her official capacity as Director of U.S. Fish and Wildlife Service ; Bert Frost, in his official capacity as Alaska Regional Director, National Park Service ; Charles F. Sams, III, in his official capacity as Director of the National Park Service; United States Fish and Wildlife Service ; National Park Service ; U.S. Department of the Interior, Defendants-Appellees,Alaska Wildlife Alliance ; Alaskans for Wildlife; Friends of Alaska National Wildlife Refuges; Denali Citizens Council ; Copper Country Alliance; Kachemak Bay Conservation Society ; Defenders of Wildlife; National Parks Conservation Association ; National Wildlife Refuge Association; Northern Alaska Environmental Center; The Wilderness Society, Inc.; Wilderness Watch; Sierra Club; Center for Biological Diversity ; The Humane Society of the United States, Intervenor-Defendants-Appellees.

No. 21-35030

No. 21-35035

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 18, 2022 San Francisco, California

Filed April 18, 2022

Jeremy E. Clare (argued) and Regina Lennox, Safari Club International, Washington, D.C., for Plaintiff-Appellant Safari Club International.

Jessica M. Alloway (argued), Solicitor General, Civil Appeals; Treg R. Taylor, Attorney General; Office of the Attorney General, Anchorage, Alaska; for Plaintiff-Appellant State of Alaska.

Kevin W. McArdle (argued), Rachel Heron, and Michael S. Sawyer, Attorneys; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Kenneth M. Lord, Attorney, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.

Rachel Genna Briggs (argued), Katherine Strong, and Brian Litmans, Trustees for Alaska, Anchorage, Alaska, for Intervenor-Defendants-Appellees.

Before: Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges, and Jennifer G. Zipps,^* District Judge.

GOULD, Circuit Judge:

Plaintiffs-Appellants State of Alaska (the State) and Safari Club International separately sued Defendant-Appellees Debra Haaland, et al. , under the theory that the United States Fish and Wildlife Service (FWS) violated the Alaska National Interest Lands Conservation Act (ANILCA), National Wildlife Refuge System Improvement Act of 1997 (Improvement Act), Administrative Procedure Act (APA), and National Environmental Policy Act (NEPA) by enacting the Kenai Rule, which limits certain hunting practices approved by the State in the Kenai National Wildlife Refuge (the Kenai Refuge) near Anchorage, Alaska. The premise of these lawsuits is that the State, and not the federal government, has the ultimate regulatory authority over hunting on federal lands in Alaska. The district court disagreed and entered summary judgment in favor of FWS. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. In so doing, we hold that ANILCA preserves the federal government's plenary power over public lands in Alaska. We also reject the Improvement Act, APA, and NEPA arguments set out by the State and Safari Club.

I. STATUTORY BACKGROUND

A. ANILCA

ANILCA gives the State primary responsibility for the administration of its wildlife, but FWS manages federal lands in Alaska and regulates human activities therein. ANILCA, Pub. L. No. 96-487 § 1314, 94 Stat. 2383 (1980), codified at 16 U.S.C. § 3202(a) – (c). And ANILCA operates such that the taking of wildlife on federal lands in Alaska is governed by state law unless it is further limited by federal law, 50 C.F.R. § 36.32(c)(1)(i), or "incompatible with documented Refuge goals, objectives, or management plans." 81 Fed. Reg. 27030, 27033 (May 5, 2016).

B. The Improvement Act

The Improvement Act states that its enumerated "wildlife-dependent recreational activities," namely hunting, fishing, wildlife observation and photography, and environmental education and interpretation, "shall receive priority consideration in refuge planning and management" if they are compatible with the purpose of a wildlife refuge. 16 U.S.C. §§ 668dd(a)(3)(C), 668ee(2). The Improvement Act further directs FWS to work with state agencies, 16 U.S.C. §§ 668dd(a)(4)(E), (M), and adopt regulations permitting hunting and fishing within national wildlife refuges, which "shall be, to the extent practicable, consistent with [s]tate fish and wildlife laws, regulations, and management plans," 16 U.S.C. § 668dd(m).

C. NEPA

NEPA requires federal government agencies to consider the environmental impact of their ongoing activities. Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The purposes of this law include directing federal government agencies to look at alternatives to any action with significant impact on the environment and educating the public about the consequences of such actions so that the public's voice can be heard. See Lands Council v. Powell , 395 F.3d 1019, 1027 (9th Cir. 2005). NEPA requires federal government agencies to complete an environmental impact statement (EIS) for projects that may significantly impact the environment. 42 U.S.C. § 4332(C). However, federal government agencies are also permitted to perform an environmental assessment (EA) "on any action in order to assist agency planning and decision making," 40 C.F.R. § 1501.5(b), and classify particular activities that generally do not significantly impact the environment as categorical exclusions (CE) for which an EIS or EA is typically not required absent extraordinary circumstances, 40 C.F.R. § 1501.4.

II. FACTS AND PROCEDURAL HISTORY

In 2013, the State determined that the Kenai brown bear population, which was previously "of special concern" due to habitat loss and human-caused mortality, had grown to a level that justified the permitting of additional brown bear hunting. The Alaska Board of Game (Board) expanded the availability of brown bear hunting permits, extended the brown bear hunting season, increased relevant harvest limits, and approved the taking of brown bears through baiting at registered black bear stations in the Kenai Refuge. The Board also opened a specific area of the Kenai Refuge called the Skilak Wildlife Recreation Area (Skilak WRA) to the seasonal hunting of coyotes, lynx, and wolves. See 5 AAC § 92.530(6).

FWS disagreed with these Board actions because it concluded that the changes as to brown bears would cause unsustainable harvest levels and human-caused mortality. FWS also opposed opening the Skilak WRA to coyote, wolf, and lynx hunting as "inconsistent with [its] management objectives for the area." Still, the Board did not change its course, and so FWS blocked the Board's authorization of brown bear baiting at black bear stations in the Kenai Refuge in 2013 and 2014. 81 Fed. Reg. 27036. FWS also closed the Skilak WRA to the newly approved coyote, lynx, and wolf hunting before the season started. 78 Fed. Reg. 66061, 66061–62 (Nov. 4, 2013) (applying 50 C.F.R. § 36.42 ).

In May 2015, FWS published a proposed rule (Kenai Rule) to codify its ban on baiting of Kenai brown bears and its closing of the Skilak WRA to coyote, wolf, and lynx hunts. 80 Fed. Reg. 29277, 29278–80 (May 21, 2015). FWS did not complete an EIS or EA for the proposed Kenai Rule on the basis that it fit a CE tailored to new regulations "which maintain essentially the permitted level of use" of federal lands. 80 Fed. Reg. 29281. The agency published the final Kenai Rule, which was largely identical to the proposed rule, in May 2016. 81 Fed. Reg. 27045, codified at 50 C.F.R. §§ 36.39(i)(5)(ii), (6). FWS did not perform an EIS or EA for the final Kenai Rule because it fit the agency's CE for regulations which maintain permitted levels of use. 81 Fed. Reg. 27043 (citing 43 C.F.R. § 46.210).

FWS later enacted a new rule (Refuges Rule) that expanded the ban on brown bear baiting to all Alaskan wildlife refuges and restricted State-authorized hunting deemed by FWS to constitute "intensive management" or "predator control," which is defined as reducing predator populations to increase prey numbers. 81 Fed. Reg. 52248, 52252 (Aug. 5, 2016). FWS justified this Refuges Rule by stressing conservation of brown bears and the State's liberalization of regulations on bear, wolf, and coyote hunting. 81 Fed. Reg. 52261–63.

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