The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ALASKA No. 24-179
DEPARTMENT OF FISH AND
D.C. No.
GAME,
3:20-cv-00195-
SLG
Plaintiff - Appellant,
v.
OPINION
FEDERAL SUBSISTENCE
BOARD; DAVID SCHMID, in his
official capacity as the Regional
Supervisor for the United States
Forest Service; SONNY PERDUE, in
his official capacity as the United
States Secretary of Agriculture;
GENE PELTOLA, in his official
capacity as Alaska Regional Director,
Bureau of Indian Affairs; GREGORY
SIEKANIEC, in his official capacity
as Alaska Regional Director, United
States Fish and Wildlife Service;
CHAD PADGETT, in his official
capacity as State Director for Alaska,
United States Bureau of Land
Management; DON STRIKER, in his
official capacity as Alaska Regional
Supervisor, National Park Service;
DAVID BERNHARDT, in his
2 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
official capacity as the United States
Secretary of the Interior; ANTHONY
CHRISTIANSON, in his official
capacity as Chair of the Federal
Subsistence Board; CHARLIE
BROWER, in his official capacity as
Member of the Federal Subsistence
Board; RHONDA PITKA, in her
official capacity as Member of the
Federal Subsistence Board,
Defendants - Appellees,
ORGANIZED VILLAGE OF KAKE,
Intervenor-Defendant -
Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, Chief District Judge, Presiding
Argued and Submitted February 7, 2025
Portland, Oregon
Filed June 2, 2025
Before: Carlos T. Bea, Lucy H. Koh, and Jennifer Sung,
Circuit Judges.
Opinion by Judge Bea
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 3
SUMMARY *
Alaska National Interest Lands Conservation Act
The panel (1) affirmed in part the district court’s
judgment that the Federal Subsistence Board had the
authority to authorize an emergency subsistence hunt for
moose and deer on federal public lands in Alaska by the
Organized Village of Kake (the “Kake hunt”); (2) vacated
the portion of the district court’s judgment reaching the
merits of Alaska’s improper delegation claim because that
claim was beyond the scope of this court’s prior remand and
therefore the district court exceeded this court’s mandate in
reaching the improper delegation claim; and (3) remanded
with instructions to dismiss the improper delegation claim.
The Federal Subsistence Board authorized the Kake hunt
for the Organized Village of Kake because the COVID-19
pandemic had significantly degraded their food supply
chains.
The panel held that the text of the Alaska National
Interest Lands Conservation Act (“ANILCA”) provided the
Board with the authority to allow an emergency subsistence
hunt. Section 811(a) states that the Board “shall ensure that
rural residents engaged in subsistence uses shall have
reasonable access to subsistence resources on the public
lands.” The panel held that the text of Section 811 means
access to subsistence resources that are on federal land in
Alaska, and not merely access to the federal land where the
subsistence resources may exist and be taken. Moreover, the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
Board permissibly relied on and adhered to 50 C.F.R.
§ 100.19, which allows the Board to approve emergency
special actions outside its two-year regulatory cycle, when
authorizing the Kake Hunt. The panel further held that other
relevant provisions of ANILCA confirmed that the Board
has authority to authorize an emergency subsistence hunt. In
addition, the statutory history of ANILCA reinforced that the
Board has this authority.
The panel held that the district court violated this court’s
mandate in reaching the merits of Alaska’s claim that the
Board improperly delegated the administration of the Kake
hunt to the Tribe, and therefore declined to address that
claim. The panel vacated that portion of the district court’s
judgment addressing the merits of Alaska’s improper
delegation claim, and remanded to the district court with
instructions to dismiss that claim.
COUNSEL
Laura Wolff (argued) and Cheryl R. Brooking, Assistant
Attorneys General, Office of the Alaska Attorney General,
Anchorage, Alaska; for Plaintiff-Appellant.
Kevin W. McArdle (argued), Shannon Boylan, Paul A.
Turcke, and Rachel Heron, Attorneys; Todd Kim, Assistant
United States Attorney; Environment & Natural Resources
Division, Appellate Section, United States Department of
Justice, Washington, D.C.; Kenneth M. Lord, Attorney,
United States Department of the Interior, Washington, D.C.;
for Defendants-Appellees.
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 5
Nathaniel H. Amdur-Clark (argued), Lloyd B. Miller, and
Whitney A. Leonard, Sonosky Chambers Sachse Miller &
Monkman LLP, Anchorage, Alaska; Richard D. Monkman,
Sonosky Chambers Sachse Miller & Monkman LLP,
Juneau, Alaska; Megan R. Condon, Erin C. Dougherty
Lynch, and Heather K. Miller, Native American Rights
Fund, Anchorage, Alaska; for Intervenor-Defendant-
Appellee.
OPINION
BEA, Circuit Judge:
This appeal arises from an emergency subsistence hunt
of two antlered bull moose and five male Sitka black-tailed
deer, which took place during the COVID-19 pandemic, on
federal public lands in Alaska (the “Kake hunt”). In 2020,
the Federal Subsistence Board (the “Board”) authorized the
Kake hunt for Intervenor-Defendant the Organized Village
of Kake (the “Tribe” or the “Tribal government”) because
the COVID-19 pandemic had significantly degraded their
food supply chains. The Kake hunt was conducted by
hunters provided by the Tribe, and the harvest from the hunt
was distributed to both tribal citizens and non-tribal citizens
of the Kake community (collectively, the “Kake residents”).
This case has been here once before. See Dep’t of Fish
& Game v. Fed. Subsistence Bd., 62 F.4th 1177 (9th Cir.
2023). Plaintiff-Appellant State of Alaska Department of
Fish and Game (“Alaska”) sued Defendants-Appellees, the
Board and several related federal officials, alleging, inter
alia, that the Board’s approval of the Kake hunt violated
Title VIII of the Alaska National Interest Lands
6 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
Conservation Act (“ANILCA” or the “Act”) (“statutory
authority claim”), and that the Board improperly delegated
management of the Kake hunt to the Tribe (“improper
delegation claim”). The district court initially ruled that
Alaska’s suit was moot. On appeal, Alaska forfeited its
improper delegation claim but argued that its statutory
authority claim was not moot. We reversed and remanded
Alaska’s statutory authority claim to the district court.
On remand, the district court ruled that the Board’s
approval of the Kake hunt did not violate Title VIII of the
Act (“Title VIII”) and denied Alaska’s request for
declaratory and permanent injunctive relief. We affirm the
district court on this part. We hold that under Title VIII of
the Act, the Board has the power to authorize an emergency
subsistence hunt on federal public lands for rural residents
of the state of Alaska. However, because the district court
exceeded our mandate in reaching Alaska’s improper
delegation claim, we vacate the district court’s judgment on
this part of its ruling and remand with instructions to dismiss
Alaska’s improper delegation claim.
I.
A. ANILCA
In 1980, Congress enacted ANILCA. Pertinent to this
appeal is Title VIII. See Alaska National Interest Lands
Conservation Act, Pub. L. No. 96-487, §§ 801–16, 94 Stat.
2371, 2422–30 (1980) (codified at 16 U.S.C. §§ 3111–26).
Utilizing its authority under the Property Clause and
Commerce Clause of the U.S. Constitution, Congress passed
Title VIII “to protect and provide the opportunity for
continued subsistence uses on the public lands by Native and
non-Native rural residents.” 16 U.S.C. § 3111(4).
“Subsistence uses,” as defined by Title VIII, means “the
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 7
customary and traditional uses by rural Alaska residents of
wild, renewable resources for direct personal or family
consumption as food, shelter, fuel, clothing, tools, or
transportation . . . .” Id. § 3113. In ANILCA, “public lands”
means “land situated in Alaska which . . . are Federal
lands. . . .” Id. § 3102(3).
Recognizing the unique position of rural Alaskan
residents, Congress found that “the national interest in the
proper regulation, protection, and conservation of fish and
wildlife on the public lands in Alaska and the continuation
of the opportunity for a subsistence way of life” required a
new “administrative structure” to enable rural residents “to
have a meaningful role in the management of fish and
wildlife and of subsistence uses on the public lands in
Alaska.” Id. § 3111(5). So, Congress directed the
Secretary 1 to establish resource regions, local advisory
committees, and regional advisory councils to accommodate
subsistence uses and needs. Id. § 3115(a)(1)-(3). The goal
of this administrative structure was to accord “nonwasteful
subsistence uses” “priority over the taking on [public] lands
of fish and wildlife for other purposes.” Id. § 3114.
In exercising its “complete power” over federal land,
Kleppe v. New Mexico, 426 U.S. 529, 540-41 (1976),
Congress remained cognizant of Alaska’s interest in
managing its own fish and wildlife. Congress gave Alaska
the option to enact its own state laws, in place of a federal
regulatory program, which would allow Alaska to
implement a preference or priority for subsistence uses on
federal public lands. 16 U.S.C. § 3115(d). However, if
1
As used in Title VIII, “Secretary” refers to the Secretary of the Interior,
or with respect to National Forest lands, the Secretary of Agriculture. 16
U.S.C. § 3102(12).
8 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
Alaska did not implement such a program, Congress
required the Secretary of the Interior to “step in and do the
job.” Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 316
(9th Cir. 1988).
When ANILCA became law in 1980, Alaska had already
“enacted the necessary statutes [to comply with ANILCA],”
and in 1982 the Secretary of the Interior certified that
Alaska’s legislative program so complied. Id. at 314. But
in 1989, the Alaska Supreme Court held that Alaska’s
legislative program implementing a preference for
subsistence users violated the Alaska constitution.
McDowell v. State, 785 P.2d 1, 9 (Alaska 1989). By 1990,
the Secretary of the Interior had withdrawn the 1982
certification, and had stepped in to promulgate regulations
establishing the Board and the rural subsistence management
program required by ANILCA. 2 See Alaska v. Babbitt, 72
F.3d 698, 701 (9th Cir. 1995); 55 Fed. Reg. 27,114 (June 29,
1990) (temporary regulations); 57 Fed. Reg. 22,940 (May
29, 1992) (permanent regulations that still exist today).
B. The Federal Subsistence Board
The Secretaries of the Interior and Agriculture created
the Board and delegated to the Board the authority to
“administer[] the subsistence taking and uses of fish and
wildlife on public lands . . . .” 50 C.F.R. § 100.10(a); 36
C.F.R. § 242.10(a). 3 The Board meets at least twice a year
and establishes biennial regulations for hunting seasons,
2
Alaska has not amended its state constitution to allow a preference for
subsistence uses. See infra III.B.
3
The Secretary of the Interior and the Secretary of Agriculture issue
identical regulations under Title VIII of ANILCA. See 50 C.F.R. part
100; 36 C.F.R. part 242. For simplicity, we will cite to the Department
of the Interior’s regulations found in 50 C.F.R. part 100.
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 9
harvest limits, and methods and means for the taking of
wildlife for subsistence uses on federal public lands. See 50
C.F.R. § 100.10(d); 85 Fed. Reg. 74,796 (Nov. 23, 2020)
(regulations for the 2020-2022 cycle).
Pertinent to this case, the Board, pursuant to federal
regulation, can approve “[e]mergency special actions”
outside its normal two-year regulatory cycle. 50 C.F.R.
§ 100.19(a). An emergency special action allows the Board
to “open or close public lands for the taking of fish and
wildlife for subsistence uses” “if necessary to . . . continue
subsistence uses of fish or wildlife, or for public safety
reasons.” 4 Id. Any such emergency special action cannot
“exceed 60 days.” Id.
The Board is permitted to delegate limited authority to
regional forest service rangers, as it did during the COVID-
19 pandemic, to act on behalf of the Board. See id.
§ 100.10(d)(6). On June 2, 2020, the Board delegated
limited authority to the Petersburg District Ranger to “issue
emergency special actions affecting moose and deer on
[f]ederal lands”; the delegation applied only to requests
“related to food security” and could be “exercised only for
reasons of public safety, and when doing so will not threaten
the continued viability of the wildlife resource.” See id.
Under the Board’s delegated authority, the Petersburg
District Ranger was still required to follow all procedural
requirements for issuing an emergency special action.
4
This regulation was amended in 2010 but existed in similar form since
1992. The 1992 language of the emergency special action allowed the
Board to make “a temporary change to open or adjust” subsistence
hunting seasons. 57 Fed. Reg. at 22,957.
10 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
C. The Kake Hunt
On April 13, 2020, the Tribal government submitted a
special action request to the Board requesting an emergency
subsistence hunt for moose and deer on federal lands. After
the Board delegated the authority to open an emergency
subsistence hunt to the Petersburg District Ranger, the
Ranger received a letter from the Tribe requesting an
emergency subsistence hunt of two moose and five deer per
month for a 60-day period. Complying with federal
regulation, on June 4, 2020, the Ranger sought Alaska’s
view on the Tribe’s request. Receiving no response from
Alaska, the Ranger referred the matter to the Board for a
decision.
On June 22, 2020, the Board conducted a telephonic
public hearing at which representatives from the state
government of Alaska and the Tribal government were
present. After the hearing and pursuant to 50 C.F.R.
§§ 100.10 and 100.19, the Board authorized the Kake hunt,
consisting of a community harvest of up to two antlered bull
moose and five male Sitka black-tailed deer for one month
on federal land, with possible authorization for a second
harvest, if necessary. The Board found no conservation
concerns in allowing the Kake hunt.
The Kake hunt took place from June 24, 2020, to July
24, 2020. The Board allowed the Tribal government to
select federally qualified subsistence hunters to participate
in the Kake hunt. The Board also allowed the Tribe to
determine to whom to distribute the two moose and five
deer, so long as the Tribe distributed the yield to Kake
residents without regard to race or tribal status. The yield
was distributed to 135 households of Kake residents.
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 11
D. Procedural History
Once the Kake hunt concluded, Alaska sued the Board
in the U.S. District Court for the District of Alaska seeking
declaratory and injunctive relief against the Board for the
Board’s approval of two special action requests. See Dep’t
of Fish & Game, 62 F.4th at 1180. Alaska challenged the
Board’s authority to open the Kake hunt, the Board’s
delegation of authority to the Tribe to select hunters and
distribute the yield, and the Board’s approval to close certain
areas of public land. Id.; see also Dep’t of Fish & Game v.
Fed. Subsistence Bd., 574 F. Supp. 3d 710, 726 (D. Alaska
2021), rev’d in part, vacated in part, 62 F.4th 1177 (9th Cir.
2023). The Tribe intervened as a defendant. See Dep’t of
Fish & Game, 62 F.4th at 1180. In the district court’s order
denying declaratory and permanent injunctive relief, the
district court dismissed Alaska’s claims related to the Kake
hunt as moot, and it found the Board did not act arbitrarily
or capriciously in closing public land. Id. at 1180-81.
Alaska appealed. Id. We reversed in part and vacated in
part the district court’s judgment, holding that Alaska’s
claim regarding the Board’s authority to open the Kake hunt
was not moot because the claim was capable of repetition
and would evade review. Id. at 1182-83. We found that
Alaska forfeited its other claims related to the Kake hunt
because they were not raised in its opening brief. Id. at 1181
n.3. We then remanded the statutory authority claim to the
district court for further proceedings. Id. at 1185.
On remand, the district court denied Alaska’s request for
declaratory and permanent injunctive relief. First, the
district court held, under Chevron v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), that the Board
had the authority to open the Kake hunt under ANILCA.
12 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
Second, the district court held that Alaska could pursue its
improper delegation claim even though the Board argued
that this claim was beyond the scope of the remand and
violated the mandate rule. 5 The district court then held that
Alaska’s improper delegation claim failed on the merits.
Alaska timely appealed.
II.
We have jurisdiction to review the district court’s final
judgment. 28 U.S.C. § 1291. We review a district court’s
decision denying declaratory relief de novo. Or. Coast
Scenic R.R., LLC v. Or. Dep’t of State Lands, 841 F.3d 1069,
1072 (9th Cir. 2016). And we review a denial of a permanent
injunction for abuse of discretion, which in this context
means that “the district court based its decision on an
erroneous legal standard or clearly erroneous finding of
fact.” Id. (internal citations omitted).
While the district court relied on Chevron to reach its
decision, the Supreme Court has since overruled Chevron
and instructed that courts “must exercise their independent
judgment in deciding whether an agency has acted within its
statutory authority, as the APA requires.” Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 412 (2024). Thus, we
must review questions of statutory interpretation de novo.
Lopez v. Garland, 116 F.4th 1032, 1036 (9th Cir. 2024)
(citing Loper Bright, 603 U.S. at 412).
5
On remand, Alaska also advanced a second improper-delegation claim,
alleging that the Board impermissibly delegated authority to open the
hunt to local federal land managers. The district court denied that claim.
Because Alaska does not advance this second improper-delegation claim
in its briefing before this Court, this claim is forfeited, and we will not
address it. See Dep’t of Fish & Game, 62 F.4th at 1181 n.3.
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 13
III.
A. Title VIII of ANILCA
We start with the text of Title VIII. See Van Buren v.
United States, 593 U.S. 374, 381 (2021). We asked the
parties to address at oral argument whether Section 811 of
ANILCA provides the Board with the authority to open an
emergency subsistence hunt. Dkt. 48. The Board and the
Tribe principally argue that Section 804, Section 805, and
Section 814 of ANILCA support the view that the Board has
such authority. Alaska argues that no statutory provision can
support the Board’s purported authority. We must now
decide whether the text of ANILCA provides the Board with
the authority to allow an emergency subsistence hunt. We
hold that it does.
1. “[A]ccess to subsistence resources”
Section 811(a) states that the Board 6 “shall ensure that
rural residents engaged in subsistence uses shall have
reasonable access to subsistence resources on the public
lands.” § 811(a), 94 Stat. at 2428 (codified at 16 U.S.C.
§ 3121(a)). “Subsistence uses” is further defined as “the
customary and traditional uses by rural Alaska residents of
wild, renewable resources for direct personal or family
consumption as food . . . .” § 803, 94 Stat. at 2423 (codified
at 16 U.S.C. § 3113). Alaska argues that Section 811 refers
only to “physical access,” like the granting of easements or
licenses to enter property because “access” refers only to
“physical access” in other provisions of ANILCA. Not so.
6
Section 811 refers to the “Secretary.” 16 U.S.C. § 3121. Because the
Board exercises delegated authority on behalf of the “Secretary,” see 50
C.F.R. § 100.10, we frame our analysis around the Board’s authority
under ANILCA.
14 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
The text of Section 811 does not grant access in a vacuum,
but “access to subsistence resources on the public lands.”
That text means access to subsistence resources that are on
federal land in Alaska, not merely access to the federal land
where the subsistence resources may exist and be taken.
Start with the plain meaning of “access.” “Access”
means “the right or opportunity of reaching or using.”
Access, Oxford American Dictionary (1980). Under Section
811(a), to what does an Alaskan rural resident have the right
or opportunity of reaching or using? Section 811(a) itself
provides that answer: “to subsistence resources.” 16 U.S.C.
§ 3121(a). Congress used this prepositional phrase to
modify “access,” which demonstrates that “access” is not
merely limited to “physical access” to public land. For
example, one could not have the opportunity to use
subsistence resources, like a buck, for food if one could enter
the land only to view or observe the buck.
In other sections of ANILCA, Congress defined the
scope of “access” by further delineating to what access is
granted or ensured. These delineations do limit the meaning
of “access.” No such delineations obtain in Section 811(a).
Alaska’s citation to Sections 1110, 1111, and 1323 of
ANILCA illustrate this point. In those sections, the scope of
“access” is limited by reference only to some “physical”
access of land because Congress chose to limit “access” in
that way.
In Section 1110, Congress granted “access to
inholdings.” 7 § 1110, 94 Stat. at 2464-65 (codified at 16
7
An “inholding” is “State-owned or privately owned land, including
subsurface rights of such owners underlying public lands or a valid
mining claim or other valid occupancy that is within or is effectively
surrounded by one or more areas.” 43 C.F.R. § 36.10(a)(4).
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 15
U.S.C. § 3170) (emphasis added). Subsection b states that
“the State or private owner or occupier shall be given by the
Secretary such rights as may be necessary to assure adequate
and feasible access for economic and other purposes to the
concerned land . . . .” 16 U.S.C. § 3170(b) (emphasis
added).
In Section 1111, Congress allowed the Secretary to
“authorize and permit temporary access by the State or a
private landowner to or across any conservation system unit,
national recreation area, national conservation area, the
National Petroleum Reserve . . . in order to permit the State
or private landowner access to its land . . . .” § 1111(a), 94
Stat. at 2465 (codified at 16 U.S.C. § 3171(a)) (emphasis
added). Conservation system units, national recreation
areas, national conservation areas, and the National
Petroleum Reserve are all geographic demarcations of land.
See 16 U.S.C. § 3102(4) (defining conservation system
units); ANILCA, §§ 401, 403 (creating national recreation
areas and national conservation areas in Alaska); 42 U.S.C.
§ 6502 (defining the National Petroleum Reserve).
And in Section 1323, Congress directed the Secretary of
Agriculture to provide “access to nonfederally owned
land . . . to secure to the owner the reasonable use and
enjoyment thereof . . . .” § 1323(a), 94 Stat. at 2488 (codified
at 16 U.S.C. § 3210(a)) (emphasis added).
Thus, each prepositional phrase modifying “access” in
Sections 1110, 1111, and 1323 limited the scope of access to
land. But Congress did not use the same syntax found in
these sections when defining the scope of access in Section
811. Instead, Congress stated that the Secretary was to
ensure “reasonable access to subsistence resources on the
public lands.” 16 U.S.C. § 3121(a) (emphasis added). In
16 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
ANILCA, public lands means “land situated in Alaska
which . . . are Federal lands . . . .” Id. § 3102(3). And the
surrounding statutory language in Section 811(a) clarifies
the proper meaning and scope of “access.” Because “on
public lands” modifies “subsistence resources” and not
“access,” Congress intended that the Secretary ensure that
rural residents of Alaska have the reasonable opportunity to
reach and use subsistence resources that can be found on
federal land in Alaska.
Accordingly, Alaska’s chosen interpretation of Section
811 to mean only physical access to federal lands is
incorrect. If Congress wanted to limit Section 811’s reach
only to physical access (i.e., the right to enter land), it could
have done so as it did in Sections 1110, 1111, and 1323. We
agree that Section 811 includes the right of reasonable
physical access to federal lands. Cf. Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts
192 (2012) (“Authorization of an act also authorizes a
necessary predicate act.”). But the text of Section 811 is not
limited to the right of access to land. Section 811’s meaning
would fit Alaska’s purported interpretation only if, for
example, Congress required the Secretary to ensure
reasonable access to public lands with subsistence resources.
Phrased as such, “access to public lands” would be the
operative phrase, and not “access to subsistence resources.”
Because Congress did not write the statute in that way, we
decline to adopt Alaska’s interpretation of Section 811. 8
8
At oral argument, the Board recognized that nothing in ANILCA limits
the word “access” only to physical access. Though the Board later
conceded that the word “access” is limited to “physical access,” “it is a
longstanding principle that ‘when an issue or claim is properly before the
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 17
We note that our interpretation of Section 811(a) focuses
on the operative phrase, “access to subsistence resources,”
and not merely the word “access,” because that is the direct
statutory context in which the word “access” is used. As we
discussed above, it is true that the word “access” can be used
more limitedly in other sections of ANILCA. But that is so
because of the distinct context in which the word “access”
appears in those specific sections, not because the meaning
of the word “access” itself is so limited. See Dubin v. United
States, 599 U.S. 110, 120 (2023) (“[R]eading ‘the whole
phrase’” in which language appears “can point to a more
targeted reading” of a statute (quoting Marinello v. United
States, 584 U.S. 1, 7 (2018))). Here, we need opine only on
the meaning of “access to subsistence resources”; we are not
adjudicating the meaning of “access” as it is used in every
other section of ANILCA. 9 Under Section 811(a), “access
court, the court is not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to identify and apply
the proper construction of governing law.’” Does v. Wasden, 982 F.3d
784, 793 (9th Cir. 2020) (quoting Kamen v. Kemper Fin. Servs., Inc., 500
U.S. 90, 99 (1991)). Notably, the Tribe, as Intervenor-Defendant, did
not make the same concession as did the Board.
9
We are aware that other sections and titles of ANILCA use the word
“access.” By our count, Congress used the phrase “access to” twenty-
four times in ANILCA. Twenty-two of those twenty-four times include
a prepositional phrase involving land. The one remaining use of the
phrase “access to” other than Section 811(a) does not involve land, but
that does not change our interpretation of Section 811(a). See § 1310(a),
94 Stat. at 2481 (codified at 16 U.S.C. § 3199(a)) (“reasonable access
to . . . existing air and water navigation aids”).
Our interpretation is confined only to Section 811(a), as that section is
the only section in ANILCA that uses the phrase, “access to subsistence
resources.” If another case or controversy arises requiring us to address
the meaning of “access” as used in other sections of ANILCA, we will
18 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
to subsistence resources” allows for the harvesting of those
resources.
With Section 811’s meaning settled, we can determine
whether the Board has the authority to authorize an
emergency subsistence hunt. No party disputes that wild
animals, specifically the antlered bull moose and Sitka
black-tailed deer at issue here, are subsistence resources.
And to use such animals for food and clothing, one must be
able to obtain them through hunting. Thus, under Section
811(a), the Board has the power to authorize an emergency
subsistence hunt to ensure rural residents have reasonable
access to subsistence resources, especially when those rural
residents would otherwise have no access to subsistence
resources for survival.
Here, the Board allowed an emergency subsistence hunt
because the COVID-19 pandemic significantly impacted
food security for Kake residents. With a dwindling food
supply, the Kake residents required access to subsistence
resources for their survival. Just as ANILCA contemplated,
“no practical alternative means [were] available to replace
the food supplies and other items gathered from fish and
wildlife which supply rural residents dependent on
subsistence uses.” 16 U.S.C. § 3111(2). Finding no
conservation concerns in a hunt of two moose and five deer,
the Board authorized an emergency subsistence hunt. Given
the lack of conservation concerns, if the Board could not
authorize a hunt to ensure that Kake residents could
reasonably access subsistence resources for its survival, the
Board could not comply with its statutory mandate to
do so. Today, all we must decide is whether the Board has the power to
authorize an emergency subsistence hunt under Section 811(a).
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 19
“ensure” that Kake residents had reasonable access to
subsistence resources on federal land in Alaska.
Moreover, the Board permissibly relied on 50 C.F.R.
§ 100.19 to authorize the Kake hunt. Under Section 814 of
ANILCA, the Secretary has the power to “prescribe such
regulations as are necessary and appropriate to carry out his
responsibilities under [Title VIII].” § 814, 94 Stat. at 2429
(codified at 16 U.S.C. § 3124). Because the Board had the
power to authorize an emergency subsistence hunt, the
Secretary was within “the outer statutory boundaries” of
ANILCA and “exercise[d] [] discretion consistent with the
APA” in promulgating 50 C.F.R. § 100.19. Loper Bright,
603 U.S. at 404; see also Nat’l Wildlife Fed’n v. Nat’l
Marine Fisheries Serv., 524 F.3d 917, 929 (9th Cir. 2008).
2. “Priority”
Other relevant provisions of ANILCA confirm that the
Board has the authority to authorize an emergency
subsistence hunt. See In re Rufener Constr., Inc., 53 F.3d
1064, 1067 (9th Cir. 1995) (“We derive meaning from
context, and this requires reading the relevant statutory
provisions as a whole.”).
“As is evident throughout ANILCA, Congress places
great emphasis on providing rural residents of Alaska with
the opportunity to maintain a subsistence way of life.”
Ninilchik Traditional Council v. United States, 227 F.3d
1186, 1192 (9th Cir. 2000) (citing 16 U.S.C. §§ 3101(c),
3111-12, 3114). To protect this way of life, Congress
provided in Section 804 of ANILCA that the “taking on
public lands of fish and wildlife for nonwasteful subsistence
uses shall be accorded priority over the taking on such lands
of fish and wildlife for other purposes.” 16 U.S.C. § 3114.
Congress prioritized the subsistence uses of fish and wildlife
20 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
over other uses such as sport or recreation. See id. § 3101(b).
That is why the taking of fish and wildlife for subsistence
uses could be limited only if the Board complied with the
criteria set forth in Section 804. Id. § 3114(1)-(3); see
United States v. Alexander, 938 F.2d 942, 946 n.7 (9th Cir.
1991).
When Congress enacted ANILCA, it recognized, in
Section 805, Alaska’s traditional police powers over fish and
wildlife within Alaska’s borders and intended that Alaska
would implement a “priority” for subsistence uses of fish
and wildlife. 16 U.S.C. § 3115(d). But Alaska’s
constitution prohibited such a preference. See McDowell,
785 P.2d at 9. Thus, in the absence of compliant state laws,
the Secretary was required to implement a program that
prioritized nonwasteful subsistence uses of fish and wildlife
over other uses on federal public lands. See 16 U.S.C.
§§ 3114, 3115(a)–(d), 3116; Kenaitze Indian Tribe, 860 F.2d
at 313-16. To comply with this broad mandate, Congress
authorized the Secretary to “prescribe such regulations as are
necessary and appropriate to carry out his responsibilities.”
16 U.S.C. § 3124.
Consistent with the above, the Board’s Federal
Subsistence Management Program, which ensures that rural
residents are afforded the opportunity to engage in
subsistence on federal public lands in Alaska, reflects
Section 804’s subsistence priority mandate. See 50 C.F.R.
part 100. Because it is the Secretary’s responsibility to
implement a priority for nonwasteful subsistence uses in the
absence of a state program, the Secretary was within his or
her authority to promulgate 50 C.F.R. § 100.19, which
allows the Board to open federal lands temporarily to
subsistence hunting outside of a general hunting season. Put
another way, when the Board allows a subsistence hunt, but
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 21
not a sport hunt, it grants a “priority” of hunting for
subsistence over hunting for sport, just as the statute
requires. It makes no difference that this temporary
subsistence hunt was outside of a state hunting season, given
that the state of Alaska’s hunting seasons cannot prioritize
subsistence uses as required by Section 804. Thus, Sections
804, 805, and 814 confirm that the Board has the authority
to authorize an emergency subsistence hunt on federal
lands. 10
B. Statutory History 11
Our conclusion that the Board has the authority to open
an emergency subsistence hunt is reinforced by the statutory
history of ANILCA. In 1992, the Secretary promulgated two
regulations that recognized that the Board has some
10
Alaska argues that because ANILCA is not explicitly preemptive,
ANILCA thus cannot give the Board the power to authorize an
emergency subsistence hunt as that invades Alaska’s traditional state
power. But it appears that Alaska confuses the question of the
substantive meaning of Title VIII with the question of whether Title VIII
is preemptive. Cf. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 744
(1996). In any event, ANILCA contains clear preemption language. See
16 U.S.C. § 3202(a). And Alaska makes a fatal concession here: Alaska
concedes that “Congress clearly intended the Secretaries’
implementation of Title VIII to preempt conflicting state law. . . . But the
scope of Title VIII is not as broad as the United States asserts, and the
scope of Title VIII is where the Secretaries’ preemptive authority ends.”
As we concluded above, the text of Title VIII provides the Board the
power to authorize an emergency subsistence hunt. See supra III.A.1.
Therefore, regulations regarding the power to open such a hunt are also
within the Secretaries’ preemptive authority.
11
Statutory history refers to the changes in the text of a statute when it is
subsequently amended by Congress. That is not to be confused with
legislative history, which relates to the various legislative materials and
reports produced when a bill is passed by Congress.
22 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
authority to “open” a hunting season. See 50 C.F.R.
§§ 100.19(b), 100.25 (1992). The 1992 version of 50 C.F.R.
§ 100.19 gave the Board the authority to “make or direct a
temporary change to open or adjust the [hunting] seasons or
to increase the bag limits for subsistence uses of fish and
wildlife populations on public lands.” See 57 Fed. Reg.
22,940, 22957 (May 29, 1992); see also 50 C.F.R.
§ 100.19(b) (2020). 12 The other regulation, 50 C.F.R.
§ 100.25(b), which remains intact today, provided that
“[s]easons are closed unless opened by Federal regulation.”
57 Fed. Reg. at 22,536.
Against this regulatory background, Congress twice
enacted contingent amendments to Title VIII that gave
Alaska the opportunity to pass a state constitutional
amendment that would allow Alaska to implement a
compliant subsistence priority program. See Department of
the Interior and Related Agencies Appropriations Act, 1998,
Pub. L. 105-83, § 316(d), 111 Stat. 1543, 1592 (1997);
Omnibus Consolidated & Emergency Supplemental
Appropriations Act, 1999, Pub. L. 105-277, § 339(a), 112
Stat. 2681, 2695-96 (1998). Pertinent here is Congress’s
1997 contingent amendment to Section 814 of ANILCA—
the provision that gives the Secretary the authority to
“prescribe such regulations as are necessary and appropriate
to carry out his responsibilities under [Title VIII].” 16
U.S.C. § 3124. If Alaska could implement a compliant
subsistence priority program, Congress would add the
phrase: “During any time that the State has complied with
section 805(d) [of ANILCA], the Secretary shall not make
or enforce regulations implementing section 805 (a), (b), or
12
The language from this regulation has been edited slightly since 1992,
but the word “open” remains in the current version of this regulation.
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 23
(c).” Department of the Interior and Related Agencies
Appropriations Act § 316(b)(8)(B). However, Alaska did
not implement a compliant program, so the amendment to
Section 814 was “repealed . . . [as] if such law[] ha[d] not
been adopted.” Id. § 316(d). Congress passed a similar
contingent amendment the following year, but Alaska again
did not amend its state constitution. Omnibus Consolidated
Emergency Supplemental Appropriations Act, 1999,
§ 339(a), (b)(1)-(2).
These contingent amendments demonstrate that
Congress was aware of the existing federal regulatory
scheme that allowed the Board to “open” a hunting season,
see 57 Fed. Reg. at 22,536, 22,957, and that Congress twice
left the regulatory scheme in place. Thus, the Congressional
choice to “revisit[] a statute giving rise to a longstanding
administrative interpretation without pertinent change . . . is
persuasive evidence that the interpretation is the one
intended by Congress.” Douglas v. Xerox Bus. Servs., LLC,
875 F.3d 884, 889 (9th Cir. 2017) (quoting Commodity
Futures Trading Comm’n v. Schor, 478 U.S. 833, 846
(1986)).
***
Accordingly, we hold that the text of ANILCA provided
the Board with the authority to authorize an emergency
subsistence hunt. We also hold that the Board permissibly
relied on and adhered to 50 C.F.R. § 100.19 when
authorizing the emergency subsistence hunt. We thus affirm
the district court’s judgment that the Board permissibly
opened the Kake hunt.
24 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
IV.
Alaska next claims that the Board improperly delegated
the administration of the Kake hunt to the Tribe. On remand,
the district court rejected Alaska’s improper delegation
claim on the merits. Before we reach the merits of that
claim, however, we must first determine whether our
mandate allowed the district court to entertain Alaska’s
improper delegation claim. We review de novo a district
court’s compliance with our mandate. Moldex-Metric, Inc.
v. McKeon Prods., Inc., 891 F.3d 878, 887 (9th Cir. 2018).
Our initial task is to clarify what claims were before the
district court after our first remand. To do so, we rely on our
rule of mandate, which provides:
When a case has been once decided by this
court on appeal, and remanded to the district
court, whatever was before this court, and
disposed of by its decree, is considered as
finally settled. . . . [The district court] cannot
vary [this court’s decree], or examine it for
any other purpose than execution; or give any
other or further relief; or review it, even for
apparent error, upon any matter decided on
appeal; or intermeddle with it, further than to
settle so much as has been remanded. . . . But
the district court may consider and decide any
matters left open by the mandate of this
court. . . .
United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007)
(quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255-
56 (1895)) (alterations omitted). Thus, assessing the “scope
of our remand” is the relevant inquiry when determining
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 25
whether the district court has complied with our mandate.
United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994)
(per curiam) (assessing compliance with the rule of mandate
by determining the “scope of our remand”); Thrasher, 483
F.3d at 983 (same); accord Planned Parenthood of
Columbia/Willamette Inc. v. Am. Coalition of Life Activists,
422 F.3d 949, 966-67 (9th Cir. 2005) (same). “[I]n this
circuit, if a district court errs by violating the rule of
mandate, the error is a jurisdictional one.” 13 Thrasher, 483
F.3d at 982. That is, if a claim falls outside the scope of our
remand, then the district court is without jurisdiction to hear
the claim.
We therefore begin by determining the “scope of our
remand” in this case. In analyzing the scope of a remand
from our Court to a lower tribunal, “[t]he opinion by this
court at the time of rendering its decree may be consulted to
ascertain what was intended by [our] mandate. . . .” United
States v. Kellington, 217 F.3d 1084, 1093 (9th Cir. 2000)
(quoting In re Sanford Fork & Tool Co., 160 U.S. at
256). Any issue conclusively decided or decided by
necessary implication in the first appeal is not remanded to
the district court. Id. at 1094. Thus, “the ultimate task is to
distinguish matters that have been decided on appeal . . .
from matters that have not.” Id. at 1093.
In our previous opinion in this case, we first held that
Alaska forfeited its improper delegation claim on appeal
13
The circuits are split on whether the rule of mandate is jurisdictional.
See Thrasher, 483 F.3d at 982 (collecting cases). We, however, have
decided that this rule is jurisdictional, id., and we cannot change the
position of our Court absent en banc reconsideration. Overstreet v.
United Broth. of Carpenters and Joiners of Am., Loc. Union No. 1506,
409 F.3d 1199, 1205 n.8 (9th Cir. 2005).
26 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
because it did not challenge the district court’s determination
that the claim was moot. 14 Dep’t of Fish & Game, 62 F.4th
at 1181 & n.3. Then, we turned to Alaska’s claim that the
Board lacked the authority to authorize the Kake hunt and
held that the district court erred in dismissing that claim as
moot. Id. at 1181-83. In so concluding, we explicitly limited
the scope of our remand, stating: “We reverse the district
court’s dismissal of Alaska’s claim that the [Board] did not
have the authority to open the Kake hunt and remand that
claim to the district court.” Id. at 1185 (emphasis added).
The question presented in this appeal is whether our prior
opinion “decided” Alaska’s improper delegation claim and
excluded it from the scope of our remand to the district
court—even though our prior opinion deemed the claim
“forfeited” on appeal instead of affirming the dismissal on
the merits.
As the Seventh Circuit has aptly recognized, “confusion
exists about the . . . question of whether issues [that] were
waived [or forfeited] at the initial appeal” fall within the
scope of a remand. United States v. Husband, 312 F.3d 247,
250 (7th Cir. 2002). Other circuits have consistently held
that the scope of remand is limited when “an[] issue . . . on
appeal is waived [or forfeited] . . . .” 15 Id. at 250-51; see
14
Alaska did not challenge that finding before the district court, and it
concedes that it forfeited the claim in its first appeal.
15
As a general matter, waiver is conceptually different than forfeiture.
“Waiver is ‘the intentional relinquishment or abandonment of a known
right,’ whereas forfeiture is ‘the failure to make the timely assertion of
[that] right.’” United States v. Scott, 705 F.3d 410, 415 (9th Cir. 2012)
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)). However,
in this context, while forfeiture “would be a more suitable expression,”
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 27
also Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007); Med.
Ctr. Pharm. v. Holder, 634 F.3d 830, 834 & n.2 (5th Cir.
2001); Estate of Cummings by and through Montoya v.
Comm. Health Sys., Inc., 881 F.3d 793, 801 (10th Cir. 2018);
Doe v. United States, 463 F.3d 1314, 1327 (Fed. Cir.
2006). 16
Although our Circuit has not explicitly addressed this
issue, 17 we need not decide today whether all waived or
forfeited issues are necessarily outside the scope of a
subsequent remand order. Our prior opinion makes clear
that here, Alaska’s improper delegation claim was outside
the scope of our remand. We expressly held that Alaska had
forfeited its improper delegation claim on appeal and
declined to reach the merits of that forfeited claim; we then
expressly remanded only Alaska’s statutory authority claim
to the district court. See Dep’t of Fish & Game, 62 F.4th at
there is little practical difference in consequences between a waived
issue or forfeited issue. 18B Charles Alan Wright & Arthur Miller,
Federal Practice and Procedure § 4478.6 (3d ed.). Such is the case
because both waiver and forfeiture result from the failure to advance a
position on appeal. Id.
Our sister circuits appear unified on this proposition, regardless of
16
whether they hold that the issue is discretionary or jurisdictional.
17
In at least one case stemming from a district court’s judgment granting
a motion to dismiss and denying leave to amend as futile, we noted that
a party was not “preclude[d]” from “raising on remand its arguments [in
an amended complaint] that have been forfeited in [its] appeal.” B&G
Foods N. Am., Inc. v. Embry, 29 F.4th 527, 542 n.8 (9th Cir. 2022). We
need not read B&G Foods too broadly, however, as we did not address
there the relevant question that we address today. That is, whether our
prior opinion “decided” a claim even though we deemed that claim
“forfeited.”
28 STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD.
1181-83. Under these circumstances, Alaska’s forfeited
claim was clearly outside the scope of our remand.
We note that were we to adopt Alaska’s position, Alaska
would get a proverbial “second bite at the apple” for a claim
already disposed of by our prior opinion. Consistent with
the reasoning of our sister circuits, we conclude that
allowing Alaska to reopen its improper delegation claim in
this appeal would waste judicial resources and would not
further the interests of consistency and finality in our
judgments. See, e.g., Chao, 511 F.3d at 465-66; United
States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003); accord
Thrasher, 483 F.3d at 982.
Accordingly, we hold that the district court violated our
mandate by reaching Alaska’s improper delegation claim, 18
and we therefore decline to address that claim here.
18
We recognize that we have not clearly opined on whether the
exceptions that apply to the law of the case doctrine also apply to the rule
of mandate. See United States v. Bad Marriage, 439 F.3d 534, 540-41
(9th Cir. 2006) (Berzon, J., dissenting); Thrasher, 483 F.3d at 983
(Berzon, J., concurring). The law of the case doctrine is subject to three
exceptions: “(1) the decision is clearly erroneous and its enforcement
would work a manifest injustice, (2) intervening controlling authority
makes reconsideration appropriate, or (3) substantially different
evidence was adduced at a subsequent trial.” Old Person v. Brown, 312
F.3d 1036, 1039 (9th Cir. 2002) (quotations omitted). However, we need
not address this question today. Though we have stated in dicta that an
intervening controlling authority could serve as an exception to the
mandate rule, In re Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016),
no such intervening controlling authority exists in this case.
Additionally, Alaska has not raised such an argument below or on
appeal. Accordingly, assuming arguendo that the rule of mandate is
subject to exceptions that apply to the law of the case doctrine, these
exceptions do not apply here and cannot save Alaska’s improper
delegation claim.
STATE OF AK DEP’T OF FISH AND GAME V. FED. SUBSISTENCE BD. 29
V.
For the foregoing reasons, we AFFIRM in part the
district court’s judgment that the Board has the authority to
authorize an emergency subsistence hunt. Because the
district court violated our mandate and therefore lacked
subject matter jurisdiction to reach the merits of Alaska’s
improper delegation claim, we VACATE that portion of the
district court’s judgment and REMAND to the district court
with instructions to dismiss that claim.
AFFIRMED IN PART, VACATED IN PART,
REMANDED.