State of Alaska v. Federal Subsistence Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ALASKA, 

Plaintiff-Appellant,

v.

FEDERAL SUBSISTENCE BOARD;

MICHAEL FLEAGLE, Chairman, No. 07-35723

Federal Subsistence Board; DIRK

KEMPTHORNE, Secretary of the  D.C. No.

CV 06-0107 HRH

Interior; ED SCHAFER, Secretary of

the Department of Agriculture, OPINION

Defendants-Appellees,

CHEESH-NA TRIBAL COUNCIL; LARRY

SINYON,

Defendant-Intervenors-Appellees.



Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, District Judge, Presiding

Argued and Submitted

August 5, 2008—Anchorage, Alaska

Filed September 23, 2008

Before: Dorothy W. Nelson, A. Wallace Tashima, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Tashima

13431

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13435

COUNSEL

Michael W. Seawright, Assistant Attorney General, Anchor-

age, Alaska, for the plaintiff-appellant.

Ellen J. Durkee, U.S. Department of Justice, Environment &

Natural Resources Division, Washington, D.C., for the

defendants-appellees.

13436 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

Heather Kendall, Native American Rights Fund, Anchorage,

Alaska, for the defendants-intervenors-appellees.

Douglas S. Burdin, Washington, D.C., for amici curiae Safari

Club International, and Safari Club International Foundation.

James H. Lister, Birch, Horton, Bittner & Cherot, Washing-

ton, D.C., for amicus curiae Kenai Sportfish Association.

OPINION

TASHIMA, Circuit Judge:

Defendant-Appellee Federal Subsistence Board (“FSB” or

“Board”) administers the federal subsistence program at the

heart of Title VIII of the Alaska National Interest Lands Con-

servation Act (“ANILCA”), 16 U.S.C. §§ 3111-26. In 2005,

the FSB granted residents of Chistochina, a rural community

in Southeast Alaska, a Customary and Traditional use deter-

mination (“C & T determination”) for moose throughout

Game Management Unit (“GMU”) 12. The C & T determina-

tion permits Chistochina residents to harvest moose in GMU

12 under federal subsistence hunting regulations, which are

more permissive than state hunting regulations.

Plaintiff-Appellant the State of Alaska (“Alaska”) chal-

lenged the C & T determination in district court, contending

that the FSB granted the determination in violation of the

Administrative Procedure Act (“APA”), 5 U.S.C.

§ 706(2)(A). The district court granted summary judgment in

favor of Defendants-Appellees FSB, the Chairman of the

FSB, the Secretary of the Interior, the Secretary of the Depart-

ment of Agriculture (together, “Federal Defendants”), and

Defendant-Intervenors Cheesh-na Tribal Council, Chis-

tochina’s governing body, and Larry Sinyon, a Chistochina

subsistence hunter (“Intervenors”). After a careful review of

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13437

the record, we find no reason to set aside the FSB’s C & T

determination. Because we may not substitute our own judg-

ment for that of the FSB, see Arrington v. Daniels, 516 F.3d

1106, 1112 (9th Cir. 2008) (citing Citizens to Preserve Over-

ton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled

on other grounds by Califano v. Sanders, 430 U.S. 99, 105

(1977)), we affirm.

I. ANILCA

Congress enacted ANILCA to further two ends. The first is:

to preserve unrivaled scenic and geological values

associated with natural landscapes; to provide for the

maintenance of sound populations of, and habitat

for, wildlife species of inestimable value to the citi-

zens of Alaska and the Nation . . . ; to preserve in

their natural state extensive unaltered arctic tundra,

boreal forest, and coastal rainforest ecosystems; to

protect the resources related to subsistence needs; to

protect and preserve historic and archeological sites,

rivers, and lands, and to preserve wilderness

resource values and related recreational opportuni-

ties . . . ; and to maintain opportunities for scientific

research and undisturbed ecosystems.

16 U.S.C. § 3101(b). The second, in order though not in prior-

ity, is “to provide the opportunity for rural residents engaged

in a subsistence way of life to continue to do so.” Id.

§ 3101(c).

In Title VIII of ANILCA, Congress sought to protect the

subsistence way of life in the face of Alaska’s growing popu-

lation and the resultant pressure on fish and wildlife popula-

tions, and created a subsistence management and use

program. Id. § 3111(3). The program grants a priority to sub-

sistence use of resources, providing: “the taking on public

lands of fish and wildlife for nonwasteful subsistence uses

13438 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

shall be accorded priority over the taking on such lands of fish

and wildlife for other purposes.” Id. § 3114. Congress autho-

rized the Secretary of the Interior and the Secretary of Agri-

culture (together, the “Secretaries”) to promulgate regulations

in furtherance of ANILCA’s directives.1 Id. § 3124.

The regulations establish a Federal Subsistence Manage-

ment Program for all federal lands in Alaska. 50 C.F.R.

§ 100.1. The Secretaries created and charged the FSB with the

“responsibility for administering the subsistence taking and

uses of fish and wildlife on public lands.” Id. § 100.10(a). In

the course of its administration, the FSB “[d]etermine[s]

which rural Alaska areas or communities have customary and

traditional subsistence uses of specific fish and wildlife popu-

lations.” Id. § 100.10(d)(4)(iii). To assist in these C & T

determinations, the FSB establishes Regional Advisory Coun-

cils (“RACs”), which oversee subsistence resource regions

and receive input from rural communities regarding subsis-

tence uses in their regions. Id.. § 100.11(a). The RACs may

evaluate C & T determination proposals, Id. § 100.11(c)(xi),

and recommend to the FSB that it grant or deny a particular

C & T determination, Id. § 100.11(c)(viii). See also 16 U.S.C.

§ 3115(a).

The FSB codifies C & T determinations at 50 C.F.R.

§ 100.24. Those communities with C & T determinations for

particular fish stock or wildlife populations may take2 them

within the GMU,3 or portion of a GMU, for which they have

1

The Secretaries promulgated identical regulations, codified at 50

C.F.R., pt. 100, and 36 C.F.R., pt. 242. For the sake of simplicity, we cite

to the regulations promulgated by the Secretary of the Interior at 50

C.F.R., pt. 100 throughout.

2

“Take or taking as used with respect to fish or wildlife, means to pur-

sue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage

in any such conduct.” 50 C.F.R. § 100.4.

3

The regulations divide Alaska into twenty-six GMUs. 50 C.F.R.

§ 100.4. The GMUs are codified in the State of Alaska hunting and trap-

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13439

a C & T determination pursuant to the federal subsistence

hunting regulations found at 50 C.F.R. §§ 100.25-.28.

II. Facts and Procedural History

Chistochina is a rural community located in GMU 13C, a

subunit of GMU 13, that borders GMUs 11 and 12. According

to the 2000 Census, the community boasts ninety-three resi-

dents in thirty-seven households. GMU 12, the primary GMU

at issue in this case, covers approximately 10,000 square miles.4

Federal public lands, including the Tetlin National Wildlife

Refuge and the Wrangell — St. Elias National Park and Pre-

serve, comprise fifty-nine percent of GMU 12. State lands

occupy approximately forty percent of the land. Less than one

percent of the land is privately owned.

In 2004, the Cheesh-na Tribal Council, Chistochina’s gov-

erning body, submitted a C & T determination proposal to the

FSB. At the time of the proposal, there existed C & T deter-

minations for moose within three areas of GMU 12:

(A) south of a line from Noyes Mountain, southeast

of the confluence of Tatschunda Creek to Nabesna

River.

ping regulations. Id.; Alaska Admin. Code tit. 5, § 92.450. Alaska imple-

mented ANILCA through state law until the Supreme Court of Alaska

held that providing a subsistence priority for rural Alaskans, to the exclu-

sion of other Alaskans, violated the Alaska Constitution. See McDowell v.

State, 785 P.2d 1, 9 (Alaska 1989). The Secretaries then assumed respon-

sibility for the implementation and administration of ANILCA, and incor-

porated the GMU scheme into the federal regulations. See 50 C.F.R.

§ 100.4.

4

“Game Management Unit 12 consists of the Tanana River drainage

upstream from the Robertson River, including all drainages into the east

bank of the Robertson River, and the White River drainage in Alaska, but

excluding the Ladue River drainage[.]” Alaska Admin. Code tit. 5,

§ 92.450(12).

13440 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

(B) east of the Nabesna River and Nabesna Glacier,

south of the Winter Trail from Pickerel Lake to the

Canadian Border.

(C) remainder.5

50 C.F.R. § 100.24(a)(1) (2004). Chistochina was included in

the C & T determination for moose within area A but not

areas B and C. Id. In the 2004 proposal, the Cheesh-na Tribal

Council asked the FSB to grant Chistochina a C & T determi-

nation for moose within areas B and C on the ground that

Chistochina residents “customarily and traditionally hunted

moose throughout Unit 12.” In support of this claim, the

Council represented that Chistochina residents had taken

moose in “[a]ll areas east of the Nabesna river and south of

the River Trail. This includes, but is not limited to rivers,

lakes, and creeks in the Chisana area . . . and in the White

River area.”

The Office of Subsistence Management (“OSM”) prepared

an analysis of the proposal, which it forwarded to the South-

central RAC and the Eastern Interior RAC.6 After reviewing

the proposal and hearing testimony, both RACs recommended

granting a C & T determination for moose to Chistochina

members throughout GMU 12. The FSB, during a public

hearing, considered the proposal along with the OSM analy-

sis, the recommendations of the RACs, and a positive recom-

mendation from the Interagency Staff Committee of the OSM

(“Staff Committee”). A representative from the Alaska

Department of Fish and Game was the only party to express

5

These three sections of GMU 12 are not formal subunits as are, for

example, GMU 13 A-D. During the C & T determination process the FSB

referred to the three areas as areas A-C. For the sake of simplicity, we fol-

low suit.

6

Both RACs reviewed the proposal because Chistochina is within the

purview of the Southcentral RAC, but GMU 12 is within the purview of

the Eastern Interior RAC.

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13441

any reservations. He asked the FSB to limit the C & T deter-

mination, averring that the Chistochina residents had only

shown use of moose in portions of areas B and C and not

throughout areas B and C. The FSB approved the proposal as

submitted, granting Chistochina residents a C & T determina-

tion for moose in areas B and C of GMU 12.

Alaska requested reconsideration pursuant to 50 C.F.R.

§ 100.20(b), contending that historical and cultural data

showed that Chistochina members harvested moose only in

2,500 square miles of GMU 12. Alaska proposed granting

Chistochina a C & T determination for moose in the following

area: “that portion [of GMU 12] that includes the drainage of

the Nabesna River upstream from the mouth of Lick Creek,

and the area south of and including the Pickerel Lake Winter

Trail from Lick Creek to the Chisana River.” The proposed

area occupies area A, the eastern third of area B, and a small

portion of area C bordering the Nabesna Road, Nabesna

River, and Pickerel Lake.

The FSB denied the request for reconsideration, and Alaska

filed the instant action, contending that in granting the C & T

determination, the FSB violated the APA.7 The Cheesh-na

Tribal Council and Sinyon intervened shortly thereafter. On

cross-motions for summary judgment, the district court

granted summary judgment in favor of all Defendants. Alaska

timely appeals.

III. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

7

Alaska initially contended that the C & T determination violated

ANILCA as well. The district court, however, held that Alaska lacked pru-

dential standing to bring the claim because ANILCA only permits parties

“aggrieved by a failure . . . to provide for the priority for subsistence uses”

to bring suit. 16 U.S.C. § 3117(a). Alaska does not pursue its ANILCA

claim on appeal.

13442 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

review de novo the district court’s determination on summary

judgment that the FSB complied with ANILCA and its imple-

menting regulations. See Or. Natural Desert Ass’n v. Bureau

of Land Mgmt., 531 F.3d 1114, 1130 (9th Cir. 2008). We

must “hold unlawful and set aside” any agency action that is

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2).

“[W]e may not defer to an agency decision that ‘is without

substantial basis in fact.’ ” Sierra Club v. EPA, 346 F.3d 955,

961 (9th Cir.), amended by 352 F.3d 1186 (9th Cir. 2003)

(quoting Fed. Power Comm’n v. Fla. Power & Light Co., 404

U.S. 453, 463 (1972)). Thus, our “inquiry into the facts is to

be searching and careful.” Citizens to Preserve Overton Park,

401 U.S. at 416. Our ultimate posture, however, is deferential;

we will uphold an agency’s action if the agency “ ‘articu-

late[d] a rational connection between the facts found and the

choice made.’ ” Sierra Club, 346 F.3d at 961 (quoting Ariz.

Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229,

1236 (9th Cir. 2001)).

We will find an agency action 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 expla-

nation for its decision that runs counter to the evi-

dence before the agency, or is so implausible that it

could not be ascribed to a difference in view or the

product of agency expertise.”

Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety

Admin., 2008 WL 3822966, at *14 (9th Cir. Aug. 18, 2008)

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983)). While we may not fabricate

a rational basis for an agency’s action, we will “ ‘uphold a

decision of less than ideal clarity if the agency’s path may

reasonably be discerned.’ ” Motor Vehicle Mfrs. Ass’n, 463

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13443

U.S. at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

IV. Discussion

A. The FSB’s fact-finding with respect to Chistochina’s

subsistence use of moose in GMU 12 was supported

by substantial evidence.

[1] While Alaska argues vociferously that the FSB’s fact

finding was not supported by substantial evidence, the dis-

agreements between the parties are ultimately legal, and not

factual, in nature. Alaska concedes that the record supports a

finding that Chistochina residents took moose for subsistence

use in “that portion of [GMU 12] that includes the drainage

of the Nabesna River upstream from the mouth of Lick Creek,

and the area south of and including the Pickerel Lake Winter

Trail from Lick Creek to the Chisana River.” This area

includes all of area A, more than a third of area B, and a small

portion of area C and covers approximately 2,500 square

miles of GMU 12.8

[2] When making the relevant C & T determination, the

FSB did not find that Chistochina residents took moose

throughout all 10,000 square miles of GMU 12. Rather, it

found that Chistochina residents took moose in each of the

three areas within GMU 12.9 Finding no factual dispute

8

Indeed, the record contains sufficient evidence that Chistochina resi-

dents have historically and traditionally taken moose in this area. Chis-

tochina residents descended from members of a native Alaskan group that

hunted near Chisana in area B and Nabesna in area C. Moose harvest data

support moose taking by Chistochina residents near Pickerel Lake and east

of the Nabesna River in area C between 1964 and 1984.

9

The Cheesh-na Tribal Council and Sinyon contend that there is sub-

stantial evidence to support a finding that Chistochina residents took

moose throughout all 10,000 square miles of GMU 12. The record does

not support such a finding, but, more importantly, the FSB did not so find.

We may not uphold an agency decision based on facts on which the

13444 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

between the parties, we hold that the FSB’s fact finding was

supported by substantial evidence.

B. The FSB properly considered specific moose

populations.

Alaska further contends that the FSB’s C & T determina-

tion was arbitrary and capricious because the FSB failed to

consider a relevant factor, namely specific moose populations

within GMU 12. The Federal Defendants contend that the

FSB needed only to consider Chistochina residents’ subsis-

tence use of the moose species because “population” is synon-

ymous with “species.”

[3] Federal Defendants contend that their interpretation of

“population” is due deference under Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).10

An official, legally binding interpretation is entitled to Chev-

ron deference. Miranda Alvarado v. Gonzales, 449 F.3d 915,

922 (9th Cir. 2006) (“[T]he precedential value of an agency

action [is] the essential factor in determining whether Chev-

ron deference is appropriate.”). We afford Skidmore11 defer-

ence to official agency interpretations without the force of

law. Tablada v. Thomas, 533 F.3d 800, 806 (9th Cir. 2008)

(citing United States v. Mead Corp., 533 U.S. 218, 228, 234

(2001)) (affording Skidmore deference to a Bureau of Prisons

Program Statement, which formalized the agency’s official

interpretation of a statute).

[4] Federal Defendants have not interpreted “population” as

agency did not rely. Arrington, 516 F.3d at 1113 (“Post hoc explanations

of agency action by appellate counsel cannot substitute for the agency’s

own articulation of the basis for its decision.”) (citing Fed. Power

Comm’n v. Texaco, Inc., 417 U.S. 380, 397 (1974)).

10

Intervenors agree.

11

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13445

synonymous with “species” in any legally-binding regulation

or in any official agency interpretation of the regulation.

Rather, this interpretation appears to be purely a litigation

position, developed during the course of the present case. As

such, we owe the interpretation no deference. United States v.

Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995)

(“No deference is owed when an agency has not formulated

an official interpretation of its regulation, but is merely

advancing a litigation position.”). We do not afford Chevron

or Skidmore deference to litigation positions unmoored from

any official agency interpretation because “ ‘Congress has

delegated to the administrative official and not to appellate

counsel the responsibility for elaborating and enforcing statu-

tory commands.’ ” Bowen v. Georgetown Univ. Hosp., 488

U.S. 204, 212 (1988) (quoting Inv. Co. Inst. v. Camp, 401

U.S. 617, 628 (1971)).

[5] When making a C & T determination, the FSB must

“determine which fish stocks and wildlife populations have

been customarily and traditionally used for subsistence.” 50

C.F.R. § 100.16(a). Additionally, the regulations provide that

the C & T determination “shall identify the specific communi-

ty’s or area’s use of specific fish stocks and wildlife popula-

tions.” Id.

[6] “Population” and “species,” as used in 50 C.F.R.

§ 100.16(a), are not synonymous. The regulations define “fish

and wildlife,” as opposed to “fish stocks and wildlife popula-

tions,” broadly as “any member of the animal kingdom.” Id.

§ 100.4. The regulations also frequently refer to fish and wild-

life without the limiting nouns “stock” and “population.” See,

e.g., Id. § 100.7(a) (“You may not use fish or wildlife or their

parts, taken pursuant to the regulations in this part, unless pro-

vided for in this part.”). In one definition, the regulations even

use the two terms in conjunction: “Conservation of healthy

populations of fish and wildlife means the maintenance of fish

and wildlife resources . . . in a condition that . . . minimizes

13446 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

the likelihood of irreversible or long-term adverse effects

upon such populations and species.” Id. § 100.4.

[7] The addition of the terms “stock” and “population” in

50 C.F.R. § 100.16(a) denotes a group smaller than a species.

Specifically, the regulation directs the FSB to identify a com-

munity’s use of “specific fish stocks and wildlife popula-

tions.” Id. (emphasis added). In order for the FSB to have

considered the relevant factors when making the C & T deter-

mination, the FSB must have considered Chistochina’s subsis-

tence use of specific moose populations, and not

Chistochina’s use of moose in general.

[8] Although we disagree with Federal Defendants’ inter-

pretation of “population,” we conclude that, in this case, the

FSB properly considered specific moose populations by con-

sidering Chistochina’s historical and traditional taking of

moose for subsistence use within GMU 12, areas B and C.

Under 50 C.F.R. § 100.16(a), C & T determinations should

“identify the specific community’s or area’s use of specific

fish stocks and wildlife populations.” The C & T determina-

tions for moose in GMU 12 identified three specific moose

populations, those in the three areas within GMU 12:

(A) south of a line from Noyes Mountain, southeast

of the confluence of Tatschunda Creek to Nabesna

River.

(B) east of the Nabesna River and Nabesna Glacier,

south of the Winter Trail from Pickerel Lake to the

Canadian Border.

(C) remainder.

Id. § 100.24(a)(1) (2004). Thus, for all C & T determinations

for moose within GMU 12 prior to 2004, the FSB considered

the moose populations within these three specific areas.12

12

The boundaries for the C & T determinations for moose within GMU

12 were revised in 2007. 50 C.F.R. § 100.24(a)(1) (2007). We express no

opinion on the reason for or effect of the revision.

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13447

Because the FSB considered whether Chistochina took moose

for subsistence use in each of these three areas when making

the instant C & T determination, the FSB properly considered

specific moose populations as directed by Id.. § 100.16(a).

C. The FSB’s decision to add Chistochina to the already-

delineated C & T determination areas for moose

within GMU 12 was not arbitrary and capricious.

Alaska further contends that the FSB’s decision to grant

Chistochina residents a C & T determination for moose

throughout GMU 12 was arbitrary and capricious because the

facts only support historical moose harvesting in 2,500 square

miles of GMU 12.13 Rather than simply adding Chistochina

residents to areas B and C in the already-existing C & T deter-

minations for moose in GMU 12, Alaska argues that the FSB

should have delineated a new area, one that corresponds more

closely to the approximately 2,500 square miles in which

Chistochina residents have traditionally taken moose.

Federal Defendants first contend that the FSB properly

extended Chistochina’s C & T determination for moose to the

whole of GMU 12 because the Board, in its discretion, may

grant a C & T determination for a species in any area as long

as the community requesting the determination can demon-

strate subsistence use of that species anywhere. In other

words, Federal Defendants contend that neither ANILCA nor

its implementing regulations require the FSB to limit C & T

13

Alaska mischaracterizes the C & T determination as covering the

entire 10,000 square miles of GMU 12. The regulations provide that the

C & T determinations only apply to federal lands. 50 C.F.R. § 100.24(a)

(“[R]ural Alaska residents of the listed communities, areas, and individu-

als have customary and traditional use of the specified species on Federal

public land in the specified areas.”). Thus, the relevant C & T determina-

tion includes only the approximately 5,900 square miles of federal lands

within GMU 12.

13448 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

determinations to the area in which a community has demon-

strated subsistence use.14

[9] We find no merit to this argument. The regulations

clearly tie C & T determinations to the specific locations in

which wildlife populations have been taken. Federal Defen-

dants contend that the definitions of “subsistence use” in

ANILCA and “customary and traditional use” in the regula-

tions do not tie such uses to geography. ANILCA provides:

[T]he term “subsistence uses” means the customary

and traditional uses by rural Alaska residents of

wild, renewable resources for direct personal or fam-

ily consumption as food, shelter, fuel, clothing, tools,

or transportation; for the making and selling of hand-

icraft articles out of nonedible byproducts of fish and

wildlife resources taken for personal or family con-

sumption; for barter, or sharing for personal or fam-

ily consumption; and for customary trade.

16 U.S.C. § 3113. The regulations further define “customary

and traditional use” as “a long-established, consistent pattern

of use, incorporating beliefs and customs which have been

transmitted from generation to generation. This use plays an

important role in the economy of the community.” 50 C.F.R.

§ 100.4.

[10] While these definitions do not directly tie subsistence

or C & T use to a particular location, each C & T determina-

tion must be tied to a specific community or area and a spe-

cific wildlife population. The regulations provide: “[C & T]

determinations shall identify the specific community’s or

area’s use of specific fish stocks and wildlife populations.” Id.

14

Federal Defendants first adopted this argument in the course of the

instant action; it is not supported by any official agency interpretation.

Accordingly, we decline to defer to this interpretation of ANILCA and its

implementing regulations. See Part IV.B, supra.

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13449

§ 100.16(a). Specific communities and areas and specific fish

stocks and wildlife populations are, by definition, limited to

specific geographic areas. The regulation that lists the C & T

determinations further provides: “The [FSB] has determined

that rural Alaska residents of the listed communities, areas,

and individuals have customary and traditional use of the

specified species on Federal public land in the specified

areas.” Id. § 100.24(a) (emphasis added). A C & T determina-

tion is not a determination that a community or area has used

a species for subsistence purposes. Rather, a C & T determi-

nation is a determination that a community or area has taken

a species for subsistence use within a specific area.

[11] Additionally, the eight-factor analysis that the FSB is

directed to apply when considering a community’s use of a

specific wildlife population requires the FSB to consider the

geographic reach of the community and the community’s use

activities. The eight factors are:

(1) A long-term consistent pattern of use, excluding

interruptions beyond the control of the community or

area;

(2) A pattern of use recurring in specific seasons for

many years;

(3) A pattern of use consisting of methods and

means of harvest which are characterized by effi-

ciency and economy of effort and cost, conditioned

by local characteristics;

(4) The consistent harvest and use of fish or wildlife

as related to past methods and means of taking; near,

or reasonably accessible from, the community or

area;

(5) A means of handling, preparing, preserving, and

storing fish or wildlife which has been traditionally

13450 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

used by past generations, including consideration of

alteration of past practices due to recent technologi-

cal advances, where appropriate;

(6) A pattern of use which includes the handing

down of knowledge of fishing and hunting skills,

values, and lore from generation to generation;

(7) A pattern of use in which the harvest is shared or

distributed within a definable community of persons;

and

(8) A pattern of use which relates to reliance upon a

wide diversity of fish and wildlife resources of the

area and which provides substantial cultural, eco-

nomic, social, and nutritional elements to the com-

munity or area.

Id. § 100.16(b). Factors (1)-(3) and (6)-(8) refer to a “pattern

of use.” This use is not the use of a species in general. Rather,

the “use” is the “community’s or area’s use of specific fish

stocks and wildlife populations,” as specified in subsection

(a). Id. § 100.16(a).15 Thus, six of the eight factors direct the

FSB to consider use relative to a specific wildlife population

or fish stock, and, by extension, relative to the geographic

reach of that population or stock. Geographic limitations to

the C & T determination are also explicit in factor (4), which

directs the FSB to consider “[t]he consistent harvest and use

of fish or wildlife . . . near, or reasonably accessible from, the

community or area.” Id. § 100.16(b)(4).

[12] Federal Defendants further contend that requiring a

geographic basis for a C & T determination works at cross

purposes with ANILCA because ANILCA was enacted to

15

We note also, however, that a community’s or area’s use of a species

in general may be relevant to that community’s or area’s use of a specific

population of that species.

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13451

protect the subsistence lifestyle enjoyed by rural Alaskans,

not to limit subsistence use to the traditional reach of those

rural communities. We do not find this argument convincing.

As we noted previously, ANILCA serves a dual purpose: pro-

tecting and preserving the subsistence lifestyle and protecting

and preserving wildlife. 16 U.S.C. § 3101(b)-(c). Granting C

& T determinations that are limited to the areas in which com-

munities have traditionally harvested a resource serves both

purposes. The geographic limitation protects the subsistence

activities traditionally practiced by rural Alaskans and pro-

tects species by ensuring that only those communities that

have traditionally taken from a population are given a priority

to do so in the future.

[13] In fact, the alternative proposed by Federal Defendants

would give the FSB the discretion to grant a rural community

a state-wide C & T determination for a species as long as that

community could demonstrate a subsistence use of that spe-

cies. There is no support in ANILCA or its implementing reg-

ulations for such unfettered discretion. Moreover, the

resulting pressures on fish and wildlife could threaten the con-

tinued viability of specific fish stock and wildlife populations

and the communities that depend on those populations for

subsistence use. Thus, we conclude that the FSB’s decision to

grant Chistochina a C & T determination for moose in areas

B and C of GMU 12 cannot be supported simply by a finding

that Chistochina residents used moose for subsistence pur-

poses.

Prior to this litigation, the FSB surely agreed. The FSB’s

analysis of Chistochina’s proposal focused entirely on

whether Chistochina residents took moose within areas B and

C of GMU 12. The proposal template used by Chistochina,

and created by the FSB, directs an applicant for a C & T

determination to describe where the resource in question has

been harvested. The staff analysis recommended granting the

C & T determination because the facts demonstrated “that res-

idents of Chistochina have used moose in [areas B and C]

13452 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

since the late 19th century.” Indeed, if the FSB simply needed

to find that the Chistochina community had a C & T use of

moose anywhere in order to extend Chistochina’s C & T

determination to all of GMU 12, no deliberative process

would have been necessary. Chistochina already had a C & T

determination for moose in GMU 12 area A and GMUs 11

and 13. The record shows that the entire purpose of the C &

T determination process was to determine whether Chis-

tochina residents demonstrated C & T use of moose within

areas B and C of GMU 12. If the FSB had not so found, we

doubt that it would have granted Chistochina residents a C &

T determination for moose in those areas.

[14] Federal Defendants further contend that the FSB’s

line-drawing decision was not arbitrary and capricious

because it was rationally based on administrative conve-

nience. Although a representative from the Alaska Depart-

ment of Fish and Game proposed a narrower C & T

determination, the FSB declined to create a new C & T deter-

mination area within GMU 12 for Chistochina because a new

area would provide “no additional benefit to management.”

The Staff Committee recommendation explained the use of

both whole units and subdivisions by explaining that differ-

ences in classification “reflect differences in the intensity of

management required for either biological conservation or

allocation purposes.” Further, in response to Alaska’s request

for reconsideration, the FSB pointed out that Alaska had pre-

viously “discouraged the Board from subdividing units so as

to avoid creating a patchwork of customary and traditional

use determinations,” and argued that using established units

would be clearer to the public than providing individual maps

for individual C & T determinations.

[15] While the FSB did not explicitly state what it consid-

ered the benefit to management, we can reasonably discern

the benefit from the record. If the FSB had to restrict every

C & T determination to the precise area in which a rural com-

munity had demonstrated C & T use of a wildlife population,

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13453

the C & T determinations would quickly become unmanage-

able. For example, if the three C & T determination areas for

moose within GMU 12 were replaced by a separate C & T

determination area for each rural community within GMU 12,

GMU 13, GMU 11 north of the sixty-second parallel, Dot

Lake, Healy Lake, and Chickaloon16 there could easily be a

dozen or more unique C & T determinations for GMU 12

alone. Multiply the effect of those C & T determinations by

the number of GMUs in Alaska — twenty-six — and it is

readily apparent that such a system would soon be very diffi-

cult, if not impossible, to manage. Thus, we conclude that the

FSB’s determination that there exists a benefit to management

to limiting the number of C & T determination areas within

GMU 12 provided an additional rational basis for the FSB’s

decision.17

D. The C & T determination does not violate ANILCA’s

limitations and savings clause.

ANILCA contains a limitations and savings clause that pro-

vides, in relevant part:

Nothing in this subchapter shall be construed as —

...

16

These are the communities that currently enjoy a C & T determination

for moose within some portion of GMU 12. 50 C.F.R. § 100.24(a)(1)

(2007).

17

Alaska further contends that administrative convenience cannot pro-

vide a basis for the broader C & T determination because the determina-

tion infringes on state sovereignty. Alaska avers that it had to further

restrict moose hunting on state lands in GMU 12 due to the added pressure

on the resource from Chistochina subsistence hunters. Alaska’s argument

fails because the federal C & T determinations only affect wildlife

resources on federal lands, not state lands. While moose do not adhere to

federal and state boundaries, federal regulation of wildlife on federal land

does not encroach on Alaska’s sovereignty.

13454 STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD

(3) authorizing a restriction on the taking of fish and

wildlife for nonsubsistence uses on the public lands

(other than national parks and park monuments)

unless necessary for the conservation of healthy pop-

ulations of fish and wildlife . . . , to continue subsis-

tence uses of such populations, or pursuant to other

applicable law[.]

16 U.S.C. § 3125. Alaska contends that the instant C & T

determination places restrictions on nonsubsistence taking

because granting Chistochina residents a federal subsistence

priority to take moose throughout GMU 12 increases moose

taking and thus necessitates greater conservation efforts by

the state.

[16] State hunting regulations for GMU 12 promulgated

after the C & T determination for Chistochina in areas A and

B contained more restrictions than the regulations in place

prior to the C & T determination.18 This fact, however, does

not demonstrate that the C & T determination authorizes a

restriction on the nonsubsistence use of moose in GMU 12. A

C & T determination does not limit nonsubsistence use; it

simply allows for subsistence use. ANILCA’s limitation pro-

vision does not prevent the FSB from regulating subsistence

use simply because a collateral effect of the regulation might

cause a separate regulatory body to place restrictions on non-

subsistence use. It only prohibits the agency itself from limit-

ing nonsubsistence use.

18

For example, state regulations for the 2005-2006 hunting season

restricted the moose take from August 24-28 to “one bull with spike-fork

antlers or 50-inch antlers or antlers with 4 or more brow tines on one side”

in “[t]hat portion drained by the Little Tok River upstream from and

including the first eastern tributary from the headwaters of Tuck Creek.”

Alaska Admin. Code tit. 5, § 85.045 (2005). Regulations for the 2006-

2007 hunting season tripled the area subject to this restriction. Alaska

Admin. Code tit. 5, § 85.045 (2006) (applying the restriction on the same

dates to “[t]hat portion in the Tok River drainage upstream from the Tok

cutoff bridge”).

STATE OF ALASKA v. FEDERAL SUBSISTENCE BOARD 13455

V. Conclusion

[17] While we do not agree with several of the arguments

advanced by Federal Defendants, we ultimately conclude that

the FSB’s decision to grant Chistochina residents a C & T

determination for moose in GMU areas B and C was not “ar-

bitrary and capricious, an abuse of discretion, or otherwise not

in accordance with law” under the APA. 5 U.S.C.

§ 706(2)(A). Deferring to the agency’s decision, we affirm the

district court’s order granting summary judgment to all Defen-

dants.19

The judgment of the district court is AFFIRMED.

19

Intervenors’ request for attorney’s fees under ANILCA, 16 U.S.C.

§ 3117(a), is denied because Alaska’s claim arises under the APA and not

ANILCA. See footnote 7, supra, and accompanying text.