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Ninth Circuit Finds Forest Service Failed to Explain How Project Complied with the Roadless Area Conservation Rule

Ninth Circuit Finds Forest Service Failed to Explain How Project Complied with the Roadless Area Conservation Rule
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By James Purvis

The State of Alaska and Safari Club International (a hunting organization) filed suits under various federal statutes against the Secretary of the Interior, seeking declaratory relief, injunctive relief, and vacatur of portions of the U.S. Fish and Wildlife Service’s (FWS) “Kenai Rule,” which limited certain hunting practices in the Kenai National Wildlife Refuge, even though the State of Alaska had approved them. After the cases were consolidated and environmental organizations intervened, the U.S. District Court entered summary judgment for the FWS. After Alaska and the hunting organization appealed, the Ninth Circuit affirmed. [Los Padres ForestWatch v. U.S. Forest Service, 25 F.4th 649 (9th Cir. 2022).]

Factual and Procedural Background

In 2013, the State of Alaska Board of Game 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 of Game also opened a specific area of the Kenai Refuge called the Skilak Wildlife Recreation Area (WRA) to the seasonal hunting of coyotes, lynx, and wolves. The FWS disagreed with these actions and acted to block the Board of Game’s authorization of brown bear baiting at black bear stations in 2013 and 2014. It also closed the Skilak WRA to the newly approved coyote, lynx, and wolf hunting before the season started. In May 2016, it then adopted a rule to codify its ban on baiting of Kenai brown bears and its closing of the Skilak WRA to coyote, wolf, and lynx hunts. Under the National Environmental Policy Act (NEPA), FWS found that the Kenai Rule fit the agency’s categorical exclusion for regulations that maintain permitted levels of use.

The State of Alaska and Safari Club International separately sued the Secretary of the Interior under the theory that 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 NEPA by enacting the Kenai Rule. The premise of the lawsuits was that the State of Alaska, and not the federal government, has the ultimate regulatory authority over hunting on federal lands in Alaska. The U.S District disagreed and entered summary judgment in favor of FWS. Alaska and Safari Club International then appealed

The Ninth Circuit’s Decision

The ANILCA Claims

The Ninth Circuit first addressed Alaska and Safari Club’s arguments that FWS exceeded its statutory authority in enacting the Kenai Rule. First, they asserted that the Alaska Statehood Act and ANILCA strip FWS of the power to restrict the means, methods, or scope of State-approved hunting on federal lands in Alaska. Second, they contended that even if FWS could preempt the State’s hunting regulations on federal lands in Alaska, the Kenai Rule violated a 2017 congressional joint resolution revoking a Refuges Rules, which had expanded the ban on brown bear hunting to all Alaskan wildlife refuges and restricted certain State-authorized hunting.

The Ninth Circuit disagreed with these arguments, finding that ANILCA gives the Secretary of the Interior the power to manage the public lands in Alaska, and all hunting therein is to be carried out in accordance with ANILCA and other applicable state and federal law. In this context, the Ninth Circuit found, hunting within the Kenai Refuge is subject to federal law, including any regulations imposed by the Secretary of the Interior under the delegated statutory authority to manage federal lands. The Ninth Circuit also rejected the argument that the 2017 congressional joint resolution canceling the Refuges Rule substantively amended ANILCA and other statutes such that it voided the Kenai Rule.

The Improvement Act Claims

The Ninth Circuit next addressed Safari Club’s claim that the Skilak WRA aspect of the Kenai Rule violated the Improvement Act by disfavoring the compatibility priority use of hunting relative to the other compatibility priority uses and compatibility non-priority uses of the Skilak WRA. The Ninth Circuit again disagreed, finding that the Improvement Act does not require FWS to allow all state-sanctioned hunting throughout the Kenai Refuge. Nor did the Improvement Act’s statement that FWS hunting regulations “shall be, to the extent practicable, consistent with [s]tate fish and wildlife laws, regulations, and management plans” alter this analysis. The Ninth Circuit found that ANILCA authorizes FWS to enact regulations preempting State-approved hunting in the Kenai Refuge, and when ANILCA and the Improvement Act are in tension, the former prevails.

The APA Claims

The Ninth Circuit next addressed a series of arguments that FWS violated the APA by acting arbitrarily and capriciously in issuing the Kenai Rule. These claims are described and addressed in detail in the Ninth Circuit opinion. Regarding the brown bear baiting aspect of the Kenai Rule, the State and Safari Club claimed that FWS acted arbitrarily and capriciously because: 1) the Rule conflicts with a different regulation; 2) FWS improperly considered a predator control factor not contemplated by Congress; 3) the Rule’s conservation basis was improper; and 4) the Rule’s public safety justification was not grounded in evidence in the record and constituted an unexplained change in position by FWS.

Regarding the Skilak WRA hunting part of the Kenai Rule, Safari Club also argued that: 1) FWS did not articulate any sufficient basis for banning coyote, lynx, and wolf hunting in the Skilak WRA; 2) the record undercuts FWS’ finding that hunting in the Skilak WRA will curb other recreation; 3) FWS did not explain the basis for its changed position on coyote, lynx, and wolf hunting within the Skilak WRA; and 4) the U.S. District Court applied the incorrect legal standard in disposing of the APA claims concerning the Skilak WRA. Finally, Safari Club also claimed that enactment of the Kenai Rule was procedurally improper because FWS did not make necessary predicate findings that the baiting of brown bears and the hunting of coyotes, lynx, and wolves in the Skilak WRA were incompatible with refuge purposes The Ninth Circuit disagreed with all of these claims, in each instance finding that FWS had acted properly.

The NEPA Claims

Finally, the Ninth Circuit addressed Alaska and Safari Club’s NEPA arguments. First, they claimed that the Kenai Rule changed the environmental status quo in the Kenai Refuge such that NEPA review is required. Second, they claimed that FWS improperly fulfilled its NEPA obligations for the Kenai Rule through categorical exclusions. Even assuming that NEPA’s procedures applied to the Kenai Rule, the Ninth Circuit found that the disputed parts of the Kenai Rule codified longstanding constraints on hunting in the Kenai Refuge, and the fact that these limitations changed from state to federal restrictions did not alter the permitted levels of use in the Kenai Refuge. Within the context, the Ninth Circuit concluded, FWS had sensibly decided that the Kenai Rule fit a categorical exclusion for:

. . .issuance of special regulations for public use of [FWS]-managed land, which maintain essentially the permitted level of use and do not continue a level of use that has resulted in adverse environmental impacts.

The Ninth Circuit also rejected the claim that any “extraordinary circumstances” existed to preclude reliance on a categorical exclusion, rejecting the claim that public controversy constituted such circumstance

Conclusion and Implications

The case is significant because it contains a substantive discussion regarding a variety of federal statutes as they regard the management of National Wildlife Refuge lands in Alaska, including a detailed analysis of various claims made under the APA. The Ninth Circuit’s opinion is available online at: