Safari Club International v. Debra Haaland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAFARI CLUB INTERNATIONAL, No. 21-35030

Plaintiff-Appellant,

D.C. Nos.

and 3:17-cv-00013-SLG

3:17-cv-00014-SLG

STATE OF ALASKA,

Plaintiff,

v.

DEBRA HAALAND, in her official

capacity as Secretary of the

Department of the Interior;

MITCH ELLIS, in his official

capacity as Chief of Refuges for

the Alaska Region of the United

States Fish and Wildlife

Service; SARA BOARIO, in her

official capacity as Alaska

Regional Director, United States

Fish and Wildlife Service;

MARTHA WILLIAMS, in her

official capacity as Director of

U.S. Fish and Wildlife Service;

BERT FROST, in his official

capacity as Alaska Regional

Director, National Park Service;

CHARLES F. SAMS, III, in his

official capacity as Director of

the National Park Service;

2 SAFARI CLUB INT’L V. HAALAND

UNITED STATES FISH AND

WILDLIFE SERVICE; NATIONAL

PARK SERVICE; U.S.

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees,

ALASKA WILDLIFE ALLIANCE;

ALASKANS FOR WILDLIFE;

FRIENDS OF ALASKA NATIONAL

WILDLIFE REFUGES; DENALI

CITIZENS COUNCIL; COPPER

COUNTRY ALLIANCE;

KACHEMAK BAY

CONSERVATION SOCIETY;

DEFENDERS OF WILDLIFE;

NATIONAL PARKS

CONSERVATION ASSOCIATION;

NATIONAL WILDLIFE REFUGE

ASSOCIATION; NORTHERN

ALASKA ENVIRONMENTAL

CENTER; THE WILDERNESS

SOCIETY, INC.; WILDERNESS

WATCH; SIERRA CLUB; CENTER

FOR BIOLOGICAL DIVERSITY;

THE HUMANE SOCIETY OF THE

UNITED STATES,

Intervenor-Defendants-

Appellees.

STATE OF ALASKA, No. 21-35035

Plaintiff-Appellant,

D.C. Nos.

and 3:17-cv-00013-SLG

3:17-cv-00014-SLG

SAFARI CLUB INT’L V. HAALAND 3

SAFARI CLUB INTERNATIONAL,

Plaintiff,

OPINION

v.

DEBRA HAALAND, in her official

capacity as Secretary of the

Department of the Interior;

MITCH ELLIS, in his official

capacity as Chief of Refuges for

the Alaska Region of the United

States Fish and Wildlife

Service; SARA BOARIO, in her

official capacity as Alaska

Regional Director, United States

Fish and Wildlife Service;

MARTHA WILLIAMS, in her

official capacity as Director of

U.S. Fish and Wildlife Service;

BERT FROST, in his official

capacity as Alaska Regional

Director, National Park Service;

CHARLES F. SAMS, III, in his

official capacity as Director of

the National Park Service;

UNITED STATES FISH AND

WILDLIFE SERVICE; NATIONAL

PARK SERVICE; U.S.

DEPARTMENT OF THE INTERIOR,

Defendants-Appellees,

ALASKA WILDLIFE ALLIANCE;

ALASKANS FOR WILDLIFE;

FRIENDS OF ALASKA NATIONAL

4 SAFARI CLUB INT’L V. HAALAND

WILDLIFE REFUGES; DENALI

CITIZENS COUNCIL; COPPER

COUNTRY ALLIANCE;

KACHEMAK BAY

CONSERVATION SOCIETY;

DEFENDERS OF WILDLIFE;

NATIONAL PARKS

CONSERVATION ASSOCIATION;

NATIONAL WILDLIFE REFUGE

ASSOCIATION; NORTHERN

ALASKA ENVIRONMENTAL

CENTER; THE WILDERNESS

SOCIETY, INC.; WILDERNESS

WATCH; SIERRA CLUB; CENTER

FOR BIOLOGICAL DIVERSITY;

THE HUMANE SOCIETY OF THE

UNITED STATES,

Intervenor-Defendants-

Appellees.

SAFARI CLUB INT’L V. HAALAND 5

Appeal from the United States District Court

for the District of Alaska

Sharon L. Gleason, Chief District Judge, Presiding

Argued and Submitted February 18, 2022

San Francisco, California

Filed April 18, 2022

Before: Ronald M. Gould and Johnnie B. Rawlinson,

Circuit Judges, and Jennifer G. Zipps, * District Judge.

Opinion by Judge Gould

SUMMARY **

Environmental Law

The panel affirmed the district court’s summary

judgment in favor of the U.S. Fish and Wildlife Service (the

“Service”) in cases brought by the State of Alaska and Safari

Club International (“plaintiffs”) alleging that the Service

violated federal environmental laws by enacting the Kenai

Rule, which limits certain hunting practices approved by the

State in the Kenai National Wildlife Refuge near Anchorage,

Alaska.

*

The Honorable Jennifer G. Zipps, United States District Judge for

the District of Arizona, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

6 SAFARI CLUB INT’L V. HAALAND

In May 2016, the Service published a final rule – the

Kenai Rule – codifying its ban on baiting of Kenai Refuge

brown bears, and its closing of the Skilak Wildlife

Recreation Area (“Skilak WRA”) to coyote, wolf, and lynx

hunts.

The panel held that the Alaska National Interest Lands

Conservation Act (“ANILCA”) preserved the federal

government’s plenary power over public lands in Alaska.

The panel rejected plaintiffs’ two arguments that the Service

exceeded its statutory authority in enacting the Kenai Rule.

First, they asserted that the Alaska Statehood Act and

ANILCA stripped the Service of the power to restrict the

means, methods, or scope of State-approved hunting on

federal lands in Alaska. The panel held that while it was true

that the Alaska Statehood Act transferred administration of

wildlife from Congress to the State, this transfer did not

include lands withdrawn or otherwise set apart as refuges or

reservations for the protection of wildlife – like the Kenai

Refuge, which remains under federal control. Hunting

within the Kenai Refuge is subject to federal law, including

any regulations imposed by the Secretary of the Interior

under its delegated statutory authority to manage federal

lands. This specific mandate prevailed over ANILCA’s

general recognition of the State’s concurrent authority to

manage wildlife on public lands. If Alaska state law

conflicts with federal hunting regulations, the federal

regulations prevail under standard principles of conflict

preemption. Second, plaintiffs contended that even if the

Service could preempt the State’s hunting regulations on

federal lands in Alaska, the Kenai Rule violated a 2017

congressional joint resolution revoking the Refuges Rule,

which expanded the ban on brown bear baiting to all Alaskan

wildlife refuges and restricted other hunting. The panel held

that this claim was unsupported by the law. The 2017 joint

SAFARI CLUB INT’L V. HAALAND 7

resolution only pertained to the Refuges Rule – not the Kenai

Rule. Accordingly, the 2017 joint resolution that

disapproved of the Refuges Rule did not void the Kenai

Rule.

The panel rejected Safari Club’s contention that the

Skilak WRA aspect of the Kenai Rule violated the National

Wildlife Refuge System Improvement Act of 1997

(“Improvement Act”) by disfavoring the compatible priority

use of hunting relative to the other compatible priority uses

and compatible non-priority uses of the Skilak WRA.

Designation of the Skilak WRA as a special area to be

managed for non-competitive uses was a permissible

exercise of the Service’s authority under ANILCA. The

Improvement Act did not require the Service to allow all

State-sanctioned hunting throughout the Kenai Refuge.

The panel rejected plaintiffs’ numerous arguments that

the Service violated the Administrative Procedure Act

(“APA”) by acting arbitrarily and capriciously in issuing the

Kenai Rule. Specifically, plaintiffs claimed that the Service

acted arbitrarily and capriciously in issuing the brown bear

baiting aspect of the Kenai Rule because: (1) it conflicted

with a different regulation; (2) the Service improperly

considered a predator control factor not contemplated by

Congress; (3) its conservation basis was improper; and

(4) its public safety justification was not grounded in

evidence in the record and constituted an unexplained

change in position by the Service. The panel concluded that

these points were inapt. Apart from its APA claims as to

brown bear hunting, Safari Club argued that the Skilak WRA

hunting part of the Kenai Rule was arbitrary and capricious

because: (1) the Service did not articulate any sufficient

basis for banning coyote, lynx, and wolf hunting in the

Skilak WRA; (2) the record undercut the Service’s finding

8 SAFARI CLUB INT’L V. HAALAND

that hunting in the Skilak WRA would bother recreation;

(3) the Service did not explain the basis for its changed

position on coyote, lynx, and wolf hunting within the Skilak

WRA; and (4) the district court applied the incorrect legal

standard in disposing of the APA claims concerning the

Skilak WRA. The panel disagreed with all of these

arguments. Finally, Safari Club claimed that enactment of

the Kenai Rule was procedurally improper because the

Service 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. This assertion relied on a 2007 compatibility

determination (“CD”) where the Service classified hunting

of brown bears as a compatible use of the Kenai Refuge. The

panel held that ANILCA did not require the Service to

follow any formal procedures or issue any findings before

regulating uses of the Kenai Refuge. The Service exercised

its power based on various factors, and addressed all of these

factors in the Kenai Rule. The Service complied with the

requisite procedures, and reversal on procedural grounds

was unwarranted. The panel rejected Safari Club’s request

to disturb the district court’s summary judgment on grounds

relating to the 2007 CD.

The panel rejected plaintiffs’ two-part National

Environmental Policy Act (“NEPA”) argument. They

asserted that the Kenai Rule changed the environmental

status quo in Kenai Refuge such that NEPA review was

required; and that the Service improperly fulfilled its NEPA

obligations for the Kenai Rule through categorical

exclusions (CE). Assuming NEPA procedures applied to the

Kenai Rule, an agency satisfies NEPA if it applied its CEs

and determined that neither an environmental assessment

(EA) nor an environmental impact statement (EIS) was

required, so long as applications of the exclusions were not

SAFARI CLUB INT’L V. HAALAND 9

arbitrary and capricious. The panel held that the Service

sensibly decided that the Kenai Rule fit a CE for “issuance

of special regulations for public-use of [Service]-managed

land, which maintain essentially the permitted level of use

and do not continue a level of use that resulted in adverse

environmental impacts.” 81 Fed. Reg. 27033. The panel

concluded that there was no basis for reversal. The panel

also rejected plaintiffs’ contention that “extraordinary

circumstances” required an EIS or EA for the Kenai Rule.

The panel rejected plaintiffs request for remand of the Kenai

Rule to the Service for further NEPA analysis. To the extent

there were any errors, such errors were harmless.

COUNSEL

Jeremy E. Clare (argued) and Regina Lennox, Safari Club

International, Washington, D.C., for Plaintiff-Appellant

Safari Club International.

Jessica M. Alloway (argued), Solicitor General, Civil

Appeals; Treg R. Taylor, Attorney General; Office of the

Attorney General, Anchorage, Alaska; for Plaintiff-

Appellant State of Alaska.

Kevin W. McArdle (argued), Rachel Heron, and Michael S.

Sawyer, Attorneys; Todd Kim, Assistant Attorney General;

Environment and Natural Resources Division, United States

Department of Justice, Washington, D.C.; Kenneth M. Lord,

Attorney, United States Department of the Interior,

Washington, D.C.; for Defendants-Appellees.

Rachel Genna Briggs (argued), Katherine Strong, and Brian

Litmans, Trustees for Alaska, Anchorage, Alaska, for

Intervenor-Defendants-Appellees.

10 SAFARI CLUB INT’L V. HAALAND

OPINION

GOULD, Circuit Judge:

Plaintiffs-Appellants State of Alaska (the State) and

Safari Club International separately sued Defendant-

Appellees Debra Haaland, et al., under the theory that the

United States Fish and Wildlife Service (FWS) violated the

Alaska National Interest Lands Conservation Act

(ANILCA), National Wildlife Refuge System Improvement

Act of 1997 (Improvement Act), Administrative Procedure

Act (APA), and National Environmental Policy Act (NEPA)

by enacting the Kenai Rule, which limits certain hunting

practices approved by the State in the Kenai National

Wildlife Refuge (the Kenai Refuge) near Anchorage,

Alaska. The premise of these lawsuits is that the State, and

not the federal government, has the ultimate regulatory

authority over hunting on federal lands in Alaska. The

district court disagreed and entered summary judgment in

favor of FWS. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm. In so doing, we hold that ANILCA preserves

the federal government’s plenary power over public lands in

Alaska. We also reject the Improvement Act, APA, and

NEPA arguments set out by the State and Safari Club.

I. STATUTORY BACKGROUND

A. ANILCA

ANILCA gives the State primary responsibility for the

administration of its wildlife, but FWS manages federal

lands in Alaska and regulates human activities therein.

ANILCA, Pub. L. No. 96-487 § 1314, 94 Stat. 2383 (1980),

codified at 16 U.S.C. § 3202(a)–(c). And ANILCA operates

such that the taking of wildlife on federal lands in Alaska is

governed by state law unless it is further limited by federal

SAFARI CLUB INT’L V. HAALAND 11

law, 50 C.F.R. § 36.32(c)(1)(i), or “incompatible with

documented Refuge goals, objectives, or management

plans.” 81 Fed. Reg. 27030, 27033 (May 5, 2016).

B. The Improvement Act

The Improvement Act states that its enumerated

“wildlife-dependent recreational activities,” namely

hunting, fishing, wildlife observation and photography, and

environmental education and interpretation, “shall receive

priority consideration in refuge planning and management”

if they are compatible with the purpose of a wildlife refuge.

16 U.S.C. §§ 668dd(a)(3)(C), 668ee(2). The Improvement

Act further directs FWS to work with state agencies,

16 U.S.C. §§ 668dd(a)(4)(E), (M), and adopt regulations

permitting hunting and fishing within national wildlife

refuges, which “shall be, to the extent practicable, consistent

with [s]tate fish and wildlife laws, regulations, and

management plans,” 16 U.S.C. § 668dd(m).

C. NEPA

NEPA requires federal government agencies to consider

the environmental impact of their ongoing activities.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

350 (1989). The purposes of this law include directing

federal government agencies to look at alternatives to any

action with significant impact on the environment and

educating the public about the consequences of such actions

so that the public’s voice can be heard. See Lands Council

v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005). NEPA

requires federal government agencies to complete an

environmental impact statement (EIS) for projects that may

significantly impact the environment. 42 U.S.C. § 4332(C).

However, federal government agencies are also permitted to

perform an environmental assessment (EA) “on any action

12 SAFARI CLUB INT’L V. HAALAND

in order to assist agency planning and decision making,”

40 C.F.R. § 1501.5(b), and classify particular activities that

generally do not significantly impact the environment as

categorical exclusions (CE) for which an EIS or EA is

typically not required absent extraordinary circumstances,

40 C.F.R. § 1501.4.

II. FACTS AND PROCEDURAL HISTORY

In 2013, the State determined that the Kenai brown bear

population, which was previously “of special concern” due

to habitat loss and human-caused mortality, had grown to a

level that justified the permitting of additional brown bear

hunting. The Alaska Board of Game (Board) expanded the

availability of brown bear hunting permits, extended the

brown bear hunting season, increased relevant harvest limits,

and approved the taking of brown bears through baiting at

registered black bear stations in the Kenai Refuge. The

Board also opened a specific area of the Kenai Refuge called

the Skilak Wildlife Recreation Area (Skilak WRA) to the

seasonal hunting of coyotes, lynx, and wolves. See 5 AAC

§ 92.530(6).

FWS disagreed with these Board actions because it

concluded that the changes as to brown bears would cause

unsustainable harvest levels and human-caused mortality.

FWS also opposed opening the Skilak WRA to coyote, wolf,

and lynx hunting as “inconsistent with [its] management

objectives for the area.” Still, the Board did not change its

course, and so FWS blocked the Board’s authorization of

brown bear baiting at black bear stations in the Kenai Refuge

in 2013 and 2014. 81 Fed. Reg. 27036. FWS also closed

the Skilak WRA to the newly approved coyote, lynx, and

wolf hunting before the season started. 78 Fed. Reg. 66061,

66061–62 (Nov. 4, 2013) (applying 50 C.F.R. § 36.42).

SAFARI CLUB INT’L V. HAALAND 13

In May 2015, FWS published a proposed rule (Kenai

Rule) to codify its ban on baiting of Kenai brown bears and

its closing of the Skilak WRA to coyote, wolf, and lynx

hunts. 80 Fed. Reg. 29277, 29278–80 (May 21, 2015). FWS

did not complete an EIS or EA for the proposed Kenai Rule

on the basis that it fit a CE tailored to new regulations “which

maintain essentially the permitted level of use” of federal

lands. 80 Fed. Reg. 29281. The agency published the final

Kenai Rule, which was largely identical to the proposed rule,

in May 2016. 81 Fed. Reg. 27045, codified at 50 C.F.R.

§§ 36.39(i)(5)(ii), (6). FWS did not perform an EIS or EA

for the final Kenai Rule because it fit the agency’s CE for

regulations which maintain permitted levels of use. 81 Fed.

Reg. 27043 (citing 43 C.F.R. § 46.210).

FWS later enacted a new rule (Refuges Rule) that

expanded the ban on brown bear baiting to all Alaskan

wildlife refuges and restricted State-authorized hunting

deemed by FWS to constitute “intensive management” or

“predator control,” which is defined as reducing predator

populations to increase prey numbers. 81 Fed. Reg. 52248,

52252 (Aug. 5, 2016). FWS justified this Refuges Rule by

stressing conservation of brown bears and the State’s

liberalization of regulations on bear, wolf, and coyote

hunting. 81 Fed. Reg. 52261–63.

Congress abrogated the Refuges Rule in 2017 by passing

a joint resolution under the Congressional Review Act. Pub.

L. No. 115-20, 131 Stat. 86 (2017). If an agency’s rule is

canceled in this way, the agency cannot issue “a new rule

that is substantially the same” as the disapproved rule unless

the relevant law changes. 5 U.S.C. § 801(b)(2). We upheld

this joint congressional resolution disapproving of the

Refuges Rule on the ground that the joint resolution “validly

amended Interior’s authority to administer national wildlife

14 SAFARI CLUB INT’L V. HAALAND

refuges in Alaska,” Ctr. for Biological Div. v. Bernhardt,

946 F.3d 553, 562 (9th Cir. 2019), such that FWS cannot

enforce the Refuges Rule or enact a substantively identical

new rule absent a change in the law, id. at 557 (citing

5 U.S.C. § 801(b)(1)–(2)), 562 (“By enacting the Joint

Resolution, Congress amended the substantive

environmental law and deprived the Refuges Rule of any

force or effect.”).

The State and Safari Club filed separate lawsuits alleging

that the Kenai Rule’s ban on baiting of brown bears and

hunting of coyotes, lynx, and wolves in the Skilak WRA

violates ANILCA, the Improvement Act, the APA, and

NEPA. The district court consolidated these cases,

permitted the Alaska Wildlife Alliance to intervene as a

defendant, and then granted summary judgment in favor of

FWS on all of the claims asserted by the State and Safari

Club. This timely appeal followed.

III. STANDARDS OF REVIEW

We review de novo issues of preemption and statutory

interpretation, Cohen v. ConAgra Brands, Inc., 16 F.4th

1283, 1287 (9th Cir. 2021), summary judgment orders on the

validity of agency actions, San Luis & Delta-Mendota Water

Auth. v. Locke, 776 F.3d 971, 991 (9th Cir. 2014), and

whether the agency complied with NEPA, Kern v. U.S.

Bureau of Land Mgmt., 284 F.3d 1062, 1069–70 (9th Cir.

2002). This requires direct review of “the agency’s action

under the APA’s arbitrary and capricious standard.”

Kalispel Tribe of Indians v. U.S. Dep’t of the Interior,

999 F.3d 683, 688 (9th Cir. 2021) (cleaned up).

Under the arbitrary and capricious standard, we must set

aside agency actions that are “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law, in

SAFARI CLUB INT’L V. HAALAND 15

excess of statutory jurisdiction, or without observance of

procedure required by law.” Id. Our scope of “review is

narrow and we cannot substitute our judgment for that of the

agency.” Id. Reversal is appropriate “only if the agency

relied on factors Congress did not intend it to consider,

entirely failed to consider an important aspect of the

problem, or offered an explanation that runs counter to the

evidence before the agency or is so implausible that it could

not be ascribed to a difference in view or the product of

agency expertise.” Id. A challenged agency action may

otherwise be affirmed. See id.

IV. ANALYSIS

A. The ANILCA Claims

The State and Safari Club set out two main arguments

that FWS exceeded its statutory authority in enacting the

Kenai Rule. First, they assert 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 contend that even if FWS can

preempt the State’s hunting regulations on federal lands in

Alaska, the Kenai Rule violates the 2017 congressional joint

resolution revoking the Refuges Rule. They are incorrect.

i.

The assertion by the State and Safari Club that FWS

cannot limit the means, method, or scope of hunting on

federal lands in Alaska is best understood as follows. The

federal government ceded all management authority over the

wildlife on public lands in Alaska to the State via the Alaska

Statehood Act. Pub. L. No. 85-508 § 6(e), 72 Stat. 339

(1984); 25 Fed. Reg. 33, 33 (Jan. 5, 1960). And ANILCA

§ 1314(a), which functions as a savings clause, states that

16 SAFARI CLUB INT’L V. HAALAND

“[n]othing in this Act is intended to enlarge or diminish the

responsibility and authority of the State of Alaska for

management of fish and wildlife on the public lands.”

16 U.S.C. § 3202(a). That is wrong.

It is true that the Alaska Statehood Act transferred

administration of wildlife from Congress to the State. Pub.

L. No. 85-508 § 6(e). But this “transfer [did] not include

lands withdrawn or otherwise set apart as refuges or

reservations for the protection of wildlife” like the Kenai

Refuge, which remain under federal control. Id. And

“Congress has authority under the Property Clause of the

Constitution to ‘make all needful Rules and Regulations

respecting the Territory or other Property belonging to the

United States.’” Bernhardt, 946 F.3d at 557–58 (quoting

U.S. Const., art. IV, § 3, cl. 2). This “includes the power to

regulate and protect the wildlife living there.” Kleppe v.

N.M., 426 U.S. 529, 541 (1976). Such federal legislation

“overrides conflicting state laws under the Supremacy

Clause” because using “[a] different rule would place the

public domain of the United States completely at the mercy

of state legislation.” Id. at 543. And Congress “delegated

its authority under the Property Clause to manage the federal

wildlife refuges in Alaska to the [Department of the

Interior].” Bernhardt, 946 F.3d at 561.

Consistent with these authorities, ANILCA gives the

Secretary of the Interior the power to manage the public

lands in Alaska, 16 U.S.C. § 3202(b), and all hunting therein

“shall be carried out in accordance with the provisions of this

Act and other applicable State and Federal law,” 16 U.S.C.

§ 3202(c). In this context, hunting within the Kenai Refuge

is subject to federal law, including any regulations imposed

by the Secretary of the Interior under its delegated statutory

authority to manage federal lands. See Nat’l Ass’n of Home

SAFARI CLUB INT’L V. HAALAND 17

Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007)

(“[T]he words of a statute must be read in their context and

with a view to their place in the overall statutory scheme.”

(cleaned up)). That specific mandate prevails over

ANILCA’s general recognition of the State’s concurrent

authority to manage wildlife on public lands. See 16 U.S.C.

§ 3202(a); NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415

(9th Cir. 1994) (“It is a well-settled canon of statutory

interpretation that specific provisions prevail over general

provisions.”). And, if Alaska state law conflicts with federal

hunting regulations, the latter control under standard

principles of conflict preemption. See Nat’l Audubon Soc’y,

Inc. v. Davis, 307 F.3d 835, 854 (9th Cir. 2002); accord

Bernhardt, 946 F.3d at 558 (“Alaska’s laws for managing

[its] wildlife are applicable in the national wildlife refuges in

the state unless preempted by federal law.”).

For these reasons, the Department of the Interior need

not defer to the State’s hunting regulations. FWS may

restrict State-authorized hunting in the Kenai Refuge to,

inter alia, conserve wildlife. ANILCA §§ 303(4)(B)(i),

304(b), 304(g)(2)(A); 16 U.S.C. §§ 668dd(a)(3)(D),

(a)(4)(A), (d)(3)(A)(i); 50 C.F.R. § 36.32(c)(1)(i) (requiring

that hunters in Alaskan refuges “shall comply with the

applicable provisions of State law unless further restricted

by Federal law”). Not only do the cited legal principles and

laws tell us that federal law has primacy over federal lands,

but also common sense tells us the same. The federal

government, and not a single state, has control over federal

lands which benefit the entire country.

The State and Safari Club seek a contrary conclusion

based on Sturgeon v. Frost, 139 S. Ct. 1066 (2019). But

Sturgeon’s holding that private land in Alaskan national

parks is exempt from federal regulation is irrelevant. See id.

18 SAFARI CLUB INT’L V. HAALAND

at 1080–85. FWS regulations, including the Kenai Rule,

“are applicable only on federally-owned lands within the

boundaries of any Alaska National Wildlife Refuge.”

50 C.F.R. § 36.1(b). In any case, Sturgeon reiterates that

ANILCA vests the Secretary of the Interior with plenary

authority “to protect—if need be, through expansive

regulation—‘the national interest in the scenic, natural,

cultural and environmental values on the public lands.’”

139 S. Ct. at 1087 (quoting 16 U.S.C. § 3101(d)). This

delegated plenary authority to protect the value of public

lands within Alaska includes maintaining “sound

populations of [] wildlife species of inestimable value.” See

16 U.S.C. § 3101(a)–(b). Sturgeon accordingly supports the

continued existence of the Kenai Rule.

In the alternative, the State urges that relief is proper

because two 2013 letters from FWS to the State prove FWS

wrongly enacted the Kenai Rule to preempt the State’s

predator control initiatives. But these letters do not help the

State. “[C]ourts ordinarily are empowered to review only an

agency’s final action,” Home Builders, 551 U.S. at 659,

based on “grounds invoked by the agency,” SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947). If “there is a

contemporaneous explanation of the agency decision, the

validity of that action must stand or fall on the propriety of

that finding” alone. Vt. Yankee Nuclear Power Corp. v.

N.R.D.C., 435 U.S. 519, 549 (1978) (cleaned up). And we

“may not reject an agency’s stated reasons for acting simply

because the agency might also have had other unstated

reasons” for acting. Dep’t of Com. v. N.Y., 139 S. Ct. 2551,

2573 (2019). The lack of any “intensive management” or

“predator control” justifications in the final Kenai Rule,

81 Fed. Reg. 27030–48, defeats the State’s claim that FWS

inappropriately promulgated the Kenai Rule to restrict the

SAFARI CLUB INT’L V. HAALAND 19

State’s predator control programs. See Dep’t of Com.,

139 S. Ct. at 2573.

ii.

The State otherwise asserts that, even if FWS can restrict

State-approved hunting on federal lands in Alaska, the 2017

congressional joint resolution canceling the Refuges Rule

substantively amended ANILCA and other statutes such that

it voided the Kenai Rule. This claim is unsupported by the

law and we reject it.

The first problem for the State is that the 2017 joint

resolution only pertains to the Refuges Rule and does not

mention the Kenai Rule. See Bernhardt, 946 F.3d at 559

(reciting the joint resolution). As a result, this joint

resolution does not indicate congressional intent concerning

the Kenai Rule. See 5 U.S.C. § 801(g) (“If the Congress

does not enact a joint resolution of disapproval [] respecting

a rule, [then] no court or agency may infer any intent of the

Congress from any action or inaction of the Congress with

regard to such rule.”). This principle, standing alone, defeats

the State’s argument that the 2017 joint resolution

concerning the Refuges Rule repealed the Kenai Rule by

implication.

The State also misconstrues the scope of the 2017 joint

resolution, which amends the law only in the sense that FWS

cannot manage public lands in Alaska through the Refuges

Rule or a new administrative rule that is substantively

identical. Bernhardt, 946 F.3d at 557 (citing 5 U.S.C.

§ 801(b)(1)–(2)), 562. Applying these principles, the State’s

reliance on this joint resolution is unavailing with regard to

the Kenai Rule. The State does not allege that FWS is still

enforcing the Refuges Rule. The Kenai Rule is not a “new

rule” relative to the Refuges Rule because the Kenai Rule is

20 SAFARI CLUB INT’L V. HAALAND

the older of the two rules, a fact the State admits. Nor are

the Refuges Rule and Kenai Rule substantively identical.

The Refuges Rule blanketly excluded the baiting of brown

bears and State predator control programs from all national

wildlife refuges in Alaska. 81 Fed. Reg. 52252. The Kenai

Rule does not do this. It only forbids baiting of brown bears

in the Kenai Refuge and prohibits the hunting of coyotes,

lynx, and wolves within the Skilak WRA. 81 Fed. Reg.

27045. For these reasons, the 2017 joint resolution that

disapproved of the Refuges Rule does not void the Kenai

Rule.

B. The Improvement Act Claim

Safari Club contends that the Skilak WRA aspect of the

Kenai Rule violates the Improvement Act by disfavoring the

compatible priority use of hunting relative to the other

compatible priority uses and compatible non-priority uses of

the Skilak WRA. We disagree.

ANILCA authorizes FWS to prepare conservation plans

designating different “areas within [the Kenai Refuge]

according to their respective resources and values,” and set

“the uses within each such area which may be compatible

with the major purposes of the refuge.” ANILCA

§ 304(g)(3)(A)(i)–(iii). Designation of the Skilak WRA as a

special area to be managed for non-consumptive uses is a

permissible exercise of this authority. See id. Safari Club’s

reliance on the status of hunting as a priority compatible use

of the Kenai Refuge is unavailing. The Improvement Act

does not require FWS to allow all State-sanctioned hunting

throughout the Kenai Refuge. 16 U.S.C. § 668dd(a)(3)(D).

Nor does 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” help Safari Club here. 16 U.S.C.

SAFARI CLUB INT’L V. HAALAND 21

§ 668dd(c), (m). ANILCA authorizes FWS to enact

regulations preempting State-approved hunting in the Kenai

Refuge, Bernhardt, 946 F.3d at 558, and when ANILCA and

the Improvement Act are in tension, the former prevails, see

Pub. L. 105-57 § 9(b), 111 Stat. 1252, 1260 (1997).

C. The APA Claims

The State and Safari Club raise a series of arguments that

FWS violated the APA by acting arbitrarily and capriciously

in issuing the Kenai Rule. These contentions do not justify

invalidation of the Kenai Rule on appeal.

i.

The State and Safari Club claim that FWS acted

arbitrarily and capriciously in issuing the brown bear baiting

aspect of the Kenai Rule because: (1) it conflicts with a

different regulation; (2) FWS improperly considered a

predator control factor not contemplated by Congress; (3) its

conservation basis is improper; and (4) its public safety

justification is not grounded in evidence in the record and

constitutes an unexplained change in position by FWS. We

conclude that these points are inapt.

a.

The conflicting regulation argument relies on the

parenthetical in 50 C.F.R. § 32.2(h), which states that

“unauthorized distribution of bait and the hunting over bait

is prohibited on wildlife refuge areas. (Baiting is authorized

in accordance with State regulations on national wildlife

refuges in Alaska).” Per Safari Club, this parenthetical

requires FWS to defer to all of the State’s bear baiting laws.

That is incorrect.

22 SAFARI CLUB INT’L V. HAALAND

“In discerning the meaning of regulatory language, our

task is to interpret the regulation as a whole, in light of the

overall statutory and regulatory scheme, and not to give

force to one phrase in isolation.” Norfolk Energy, Inc. v.

Hodel, 898 F.2d 1435, 1442 (9th Cir. 1990) (citation

omitted).

Applying this principle, we note that the parenthetical

was added to 50 C.F.R. § 32.2(h) to “avoid confusion

between the general provision prohibiting baiting on refuges

and the Service’s policy of permitting hunting on national

wildlife refuges in Alaska in accordance with state

regulations.” 49 Fed. Reg. 50017, 50049-01 (Dec. 26,

1984). In addition, FWS must maintain sound wildlife

populations on its refuges, ANILCA § 303(4)(B)(i),

303(4)(B)(v), 304(b); 16 U.S.C. §§ 668dd(a)(4), 3101(b).

And 50 C.F.R. § 32.2(h) has several companion regulations

that inform its meaning. See 50 C.F.R. §§ 36.31(b), 32.32(a),

36.34, 36.42; Hodel, 898 F.2d at 1442. In this context, the

meaning of the parenthetical is clear. The general ban on

bear baiting in refuges does not apply in Alaska. But FWS

may limit State-approved bear baiting on Alaskan refuges

“in accordance with the provisions of § 36.42,” which call

for conservation of wildlife, management of refuges

consistent with their purposes, and public safety. See

50 C.F.R. § 36.31(b). That means the parenthetical relied

upon by Safari Club does not strip FWS of its authority to

enact specific regulations restricting bear baiting in refuges,

and these specific regulations will prevail over the general

parenthetical. See Preiser v. Rodriguez, 411 U.S. 475, 490

(1973); accord A-Plus Roofing, 39 F.3d at 1415.

b.

The State urges us to void the Kenai Rule on the basis

that FWS improperly considered a predator control factor

SAFARI CLUB INT’L V. HAALAND 23

not contemplated by Congress, as shown by its alleged focus

on the success rate of bear baiting. We decline to do so

because we review final agency actions and the rationales

therein, Vt. Yankee, 435 U.S. at 549; Dep’t of Com.,

139 S. Ct. at 2573, and the final Kenai Rule does not

mention “predator control.”

c.

Safari Club makes two discrete sub-arguments as to the

conservation basis for the Kenai Rule. First, Safari Club

contends that the higher brown bear mortality cited in the

Kenai Rule stems from the State’s increased harvest cap on

brown bears, not the practice of bear baiting. Per Safari

Club, the Kenai Rule is futile because it does not reduce the

harvest levels set by the State and has no real conservation

impact. Second, Safari Club maintains that the brown bear

baiting element of the Kenai Rule violates a previous refuge

management plan that endorsed predator control. On our

examination of the record and applicable law, we conclude

that Safari Club is wrong on both of those contentions.

It is true that FWS has no authority over harvest caps set

by the State, or the number of brown bears killed outside the

Kenai Refuge. But FWS has a statutory duty to conserve

brown bears in the Kenai Refuge. ANILCA §§ 303(4)(B)(i),

304(b); 16 U.S.C. §§ 668dd(a)(4)(A), 3101(b). The Kenai

Rule relates only to the refuge and offers a comprehensive

and reasonable explanation as to why its ban on baiting will

conserve the Kenai Refuge brown bear population. 81 Fed.

Reg. 27035–37.

Kenai brown bears are a small, isolated population with

“one of the lowest reproductive potentials of any North

American mammal.” 81 Fed. Reg. 27035. In 2013, the year

before the State allowed brown bear baiting, twelve brown

24 SAFARI CLUB INT’L V. HAALAND

bears were harvested in Game Management Unit 7, which

borders the Kenai Refuge. 81 Fed. Reg. 27036. In 2014, the

first year of brown bear baiting outside the Kenai Refuge,

thirty-eight brown bears, twenty-eight of which were taken

over bait, were harvested in Game Management Unit 7. Id.

And forty of the sixty-five brown bears harvested on the

peninsula surrounding the Kenai Refuge in 2014, or sixty-

two percent of such takes, were from bear baiting. Id. After

modeling this harvest data and the associated brown bear

population trends, FWS concluded that “allowance of take

of brown bears over bait [in the Kenai Refuge] would

increase human-caused mortality [] to levels which would

continue to reduce the population, with potential to result in

conservation concerns to this population” of Alaskan brown

bears. 81 Fed. Reg. 27036–37.

Given this context, Safari Club’s contention that the

Kenai Rule will not help conserve brown bears in the refuge

cannot stand. The record readily supports FWS’ conclusion

that baiting of brown bears in the Kenai Refuge would

significantly increase brown bear mortalities in the refuge

“due to its high degree of effectiveness as a harvest method.”

81 Fed. Reg. 27036. And the agency reasonably concluded

from this information that prohibiting baiting would help

conserve the brown bears in the Kenai Refuge as required by

ANILCA and the Improvement Act, irrespective of the

State’s harvest cap on brown bears. 81 Fed. Reg. 27035–37.

Safari Club further urges that an internal FWS email is

evidence that the conservation concerns undergirding the

brown bear baiting part of the Kenai Rule are unavailing

because they are grounded in predator control and contradict

a 2010 management plan allegedly endorsing predator

control in the refuge. But this email is not part of the final

Kenai Rule and the accompanying explanation for that rule’s

SAFARI CLUB INT’L V. HAALAND 25

adoption, to which the scope of our review is limited. See

Home Builders, 551 U.S. at 659; Chenery Corp., 332 U.S. at

196. The final Kenai Rule does not cite predator control and

we cannot “reject an agency’s stated reasons for acting

simply because the agency might also have had other

unstated reasons” for acting as it did. Dep’t of Com.,

139 S. Ct. at 2573. In any event, this cited FWS email does

not even mention the Kenai Rule and its relevance to this

case has not been established by Safari Club.

d.

The State and Safari Club assert that the brown bear

baiting part of the Kenai Rule is arbitrary and capricious

because its public safety rationale is an unexplained change

in agency position from FWS’ authorization of black bear

baiting in a 2007 compatibility determination (CD) for the

Kenai Refuge. This claim is accompanied by an argument

that the public safety basis for the bear baiting part of the

Kenai Rule is unsupported by the record. We conclude that

the State and Safari Club misconstrue the conclusions of the

2007 CD and the Kenai Rule administrative record, so we

affirm the district court’s ruling on this issue.

Both the State and Safari Club read the 2007 CD as

stating that bear baiting is not a public safety hazard. They

are wrong. Because FWS lacked evidence on the issue, the

2007 CD did not reach a definitive conclusion on whether

baiting increases the risk that bears will become conditioned

to human food and threaten public safety. FWS instead

determined that the problem of bear conditioning to human

food “deserves additional attention . . . and the potential

concern for human and non-target-bear safety around the

bait station itself is of interest.” Although FWS designated

black bear baiting as a compatible use of the Kenai Refuge,

it cautioned that such baiting “is tightly controlled currently

26 SAFARI CLUB INT’L V. HAALAND

to ensure compatibility. Attention will be given to the

program in the future as well to determine if additional

changes are warranted, in particular to any developing

human safety concerns or noticeable impacts to the area’s

brown bear population.”

There is no conflict between the Kenai Rule and the 2007

CD because the Kenai Rule revisited the bear food-

conditioning and public safety questions left open in the

2007 CD. 81 Fed. Reg. 27037. In enacting the Kenai Rule,

FWS cited two studies not discussed in the 2007 CD (the

Herrero Books) for the proposition that “food-conditioning

of bears results in increased potential for negative human-

bear encounters and increased risk to public safety.” Id. The

Herrero Books explain the dangers from bears that are

habituated to people or have learned to feed on human food,

highlight that habituation combined with food-conditioning

“has been associated with a large number of injuries” to

humans, and indicate food-conditioning of bears may result

from exposure to human food at bait stations. The Kenai

Rule also cited data that, when the State authorized brown

bear baiting outside the Kenai Refuge, such baiting greatly

increased, which engendered an “increased potential for

human-bear conflicts.” 81 Fed. Reg. 27037 (explaining that

the number of bear baiting stations grew by 100 after the

State allowed baiting of brown bears).

Considering this information, FWS reasonably

concluded that allowing brown bear baiting in the Kenai

Refuge will cause public safety issues by exacerbating

habituation and food-conditioning and increasing the

number of adverse human-bear interactions at baiting

stations. 81 Fed. Reg. 27037. To the extent that the State

and Safari Club claim the public safety basis for the bear

baiting aspect of the Kenai Rule is void for lack of data, they

SAFARI CLUB INT’L V. HAALAND 27

are incorrect. An agency need not “support its conclusions

with empirical research” and can “rely on its experience,

even without having quantified it in the form of a study.”

Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010).

Safari Club urges a contrary conclusion on the basis that

the Herrero Books are irrelevant because they do not address

bear baiting but instead pertain to garbage dumps and a past

but discontinued federal practice of feeding bears in national

parks. This argument is futile. We substantially defer to

agency scientific determinations, Balt. Gas & Elec. Co. v.

Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983),

especially if they require technical expertise, Locke,

776 F.3d at 994. And in claiming bear baiting and food-

conditioning are dissimilar, Safari Club overlooks the

suggestion in the Herrero Books that food-conditioning of

bears can occur at baiting stations and creates increased

public safety risks. 81 Fed. Reg. 27037.

No proper ground for reversal exists here. FWS

rationally set out its reasons for enacting the Kenai Rule, see

In re Big Thorne Project, 857 F.3d 968, 976 (9th Cir. 2017)

(“[T]he agency must rationally explain why it did what it

did.”), and we are not a panel of scientists empowered to

instruct agencies on how to choose among scientific studies,

nor can we correctly order the agency to explain every

possible uncertainty in scientific realms that are properly

entrusted to its expertise, see Bair v. Calif. Dep’t of Transp.,

982 F.3d 569, 578 (9th Cir. 2020). Applying these

principles, we reject the assertions by the State and Safari

Club with regard to the public safety justification of the

brown bear baiting part of the Kenai Rule and affirm the

grant of summary judgment for FWS on this issue. See Balt.

Gas & Elec. Co., 462 U.S. at 103; Locke, 776 F.3d at 994.

The responsible federal agency, here FWS, has presumptive

28 SAFARI CLUB INT’L V. HAALAND

scientific expertise on how practices of feeding brown bears

may relate to human safety and the likelihood that the

endangered bear population can be maintained or increased.

ii.

Apart from its APA claims as to brown bear baiting,

Safari Club argues that the Skilak WRA hunting part of the

Kenai Rule is arbitrary and capricious because: (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 district court applied the

incorrect legal standard in disposing of the APA claims

concerning the Skilak WRA. We disagree.

a.

Safari Club challenges the Skilak WRA aspect of the

Kenai Rule on the basis that it is unsupported by area-

specific data or studies, or studies of animal behavior outside

the Skilak WRA. In addition, Safari Club insists that the

Kenai Rule’s ban on hunting of coyotes, lynx, and wolves

should be vacated because it is the product of conjecture by

FWS. Neither contention warrants reversal of the summary

judgment order.

There are no site-specific studies concerning how the

hunting of coyotes, lynx, and wolves in the Skilak WRA

would affect those species because this area has been closed

to such hunting for decades. 81 Fed. Reg. 27038. FWS

cannot cite nonexistent studies in the rulemaking process.

See Locke, 776 F.3d at 995 (holding that federal agencies

need not carry out “new tests or make decisions on data that

SAFARI CLUB INT’L V. HAALAND 29

does not yet exist”). And Safari Club identifies no studies

on how hunting impacts the behavior of coyotes, lynx, and

wolves outside of the Skilak WRA, so FWS cannot be

faulted for not relying on such materials. See id. In such a

situation, where the record is devoid of pre-existing studies

to clarify the impact of policies on threatened animal species,

the default rule is to rely on a specialized federal agency’s

presumptive expertise in the subject. See Far East Conf. v.

U.S., 342 U.S. 570, 574–75 (1952) (“[R]egulation of

business entrusted to a particular agency [is] secured, and the

limited functions of review by the judiciary are more

rationally exercised, by preliminary resort for ascertaining

and interpreting the circumstances underlying legal issues to

agencies that are better equipped than courts by

specialization, by insight gained through experience, and by

more flexible procedure.”); ASARCO, Inc. v. OSHA,

746 F.2d 483, 490 (9th Cir. 1984) (stipulating that an agency

has “leeway where its findings must be made on the frontiers

of scientific knowledge,” including in environmental

contexts (citations omitted)). Indeed, one reason for the

growth of administrative agencies and their primacy in

specialized areas is that the designated agency can staff up

with scientists or other experts, see Marsh v. Or. Nat. Res.

Council, 490 U.S. 360, 378 (1989) (“[A]n agency must have

discretion to rely on the reasonable opinions of its own

qualified experts.”), and give a rational basis for its

decisions, see McFarland v. Kempthorne, 545 F.3d 1106,

1113 (9th Cir. 2008). This approach is particularly

beneficial in areas like environmental law that rely heavily

on agency scientific judgments. See, e.g., Mont. Sulphur &

Chem. Co. v. U.S. EPA, 666 F.3d 1174, 1183 (9th Cir. 2012).

Our caselaw further explains that a rulemaking agency is

allowed to “rely on its experience, even without having

quantified it in the form of a study.” Sacora, 628 F.3d

30 SAFARI CLUB INT’L V. HAALAND

at 1069; see Peck v. Thomas, 697 F.3d 767, 776 (9th Cir.

2012) (holding that an agency “is entitled to invoke its

experience as a justification for [a] rule”). Stated differently,

any common sense and predictive judgments undergirding a

rule promulgated by an agency may properly be attributed to

the agency’s specialized subject-matter expertise. See FCC

v. Fox Television Stations, 556 U.S. 502, 521 (2009);

Phoenix Herpetological Soc’y v. U.S. Fish & Wildlife Serv.,

998 F.3d 999, 1006 (D.C. Cir. 2021). This principle of

administrative law applies with particular force where, as

here, the “agency’s predictive judgment (which merits

deference) makes entire sense.” Fox Television Stations,

556 U.S. at 521. In such contexts, the agency need only

articulate a rational basis for the disputed decision or rule.

See Arrington v. Daniels, 516 F.3d 1106, 1114 (9th Cir.

2008); accord Dep’t of Com., 139 S. Ct. at 2570–71 (holding

that, where available evidence required a “weighing of

incommensurables under conditions of uncertainty,” the

agency had satisfied its legal obligation to “consider the

evidence and give reasons for [the agency’s] chosen course

of action”); Sacora, 628 F.3d at 1069 (stipulating that the

APA does not require an agency to “support its conclusions

with empirical research” during the administrative

rulemaking process).

Applying these principles, it is significant that coyotes,

lynx, and wolves are all wary animals that occur in low

densities in the Skilak WRA, which extends across a

relatively small land area within the Kenai Refuge. 81 Fed.

Reg. 27037–38. The State approved sport hunting of these

species in the Skilak WRA because this area is close to major

population centers and highly accessible, inviting an

inference that the hunting of coyotes, lynx, and wolves will

be sufficiently popular to the point where this recreational

activity would likely create hunting pressure on these

SAFARI CLUB INT’L V. HAALAND 31

species. See 81 Fed. Reg. 27038–39. And the record further

confirms that the combination of “easy access and liberal

harvest strategies” may adversely affect Alaskan lynx and

wolf populations. The agency logically concluded from this

information that hunting of coyotes, lynx, and wolves would

likely affect their behavior and reduce their density in the

Skilak WRA. 81 Fed. Reg. 27038. These changes would

conflict with FWS’ management objectives for the Skilak

WRA by greatly “degrad[ing] opportunities for wildlife

observation, photography, and environmental education and

interpretation.” Id. It stands to reason that hunting and

killing members of highly dispersed species like coyotes,

lynx, and wolves within a confined land area such as the

Skilak WRA would greatly reduce opportunities to observe

those three species in the Skilak WRA. See id. Because

there is a rational basis for the Kenai Rule’s ban on the

hunting of coyotes, lynx, and wolves in the Skilak WRA, see

Arrington, 516 F.3d at 1114, which was an “exercise in logic

rather than clairvoyance,” see Fox Television Stations,

556 U.S. at 521, this prohibition is not “so implausible that

it could not be ascribed to a difference in view or the product

of agency expertise,” and we have no reason to grant relief

on this basis, see Kalispel Tribe, 999 F.3d at 688.

b.

Safari Club urges that the record defeats FWS’ finding

that hunting of coyotes, lynx, and wolves in the Skilak WRA

will reduce their observability there. This argument relies

on: (1) a 2007 compatibility determination (CD) that hunting

has little effect on most wildlife, (2) FWS allowing hunting

of other species in the Skilak WRA, 50 C.F.R.

§ 36.39(i)(6)(iii)–(iv); and (3) the Board’s finding that

hunting coyotes, lynx, and wolves in the Skilak WRA will

not limit their observability there.

32 SAFARI CLUB INT’L V. HAALAND

None of these points supports Safari Club. The 2007 CD

is irrelevant because it pertains to the hunting program in

effect at the time, which did not include coyotes, lynx, and

wolves in the Skilak WRA. Nor is hunting of other species

relevant to whether hunting coyotes, lynx, and wolves in the

Skilak WRA will make them less observable there. And the

Board’s judgment regarding the effect of hunting on coyotes,

lynx, and wolves in the Skilak WRA is irrelevant. Agencies

have discretion to rely on their own expertise, see Lands

Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010), and

where, as here, there is little data related to a contested

agency action, opposing discussion that “is itself highly

speculative” is insufficient to defeat disputed agency

assumptions and conclusions, see Greenpeace Action v.

Franklin, 14 F.3d 1324, 1336 (9th Cir. 1992).

c.

Safari Club contests the Kenai Rule on the basis that

FWS did not explain its changed reason for banning coyote,

lynx, and wolf hunting in the Skilak WRA. Per Safari Club,

this hunting restriction was initially grounded in preemption

of predator control, but the final Kenai Rule predicated it on

minimization of conflict between refuge uses and public

safety. We reject these arguments because Safari Club

mischaracterizes the record.

In 2013, FWS informed the Board that hunting of

coyotes, lynx, and wolves in the Skilak WRA conflicted with

FWS’ long-standing management objectives and current

management plan for the area. 78 Fed. Reg. 66063. Since

the mid-1980s, the agency’s management plans for the

Skilak WRA have prioritized environmental education and

wildlife viewing, and FWS has restricted hunting and

trapping in the area so “wildlife would become more

abundant, less wary, and more easily observed.” 81 Fed.

SAFARI CLUB INT’L V. HAALAND 33

Reg. 27038. The final Kenai Rule banned the hunting of

coyotes, lynx, and wolves within the Skilak WRA for the

same reason, to facilitate wildlife viewing, and was adopted

to ensure consistency with the 2007 management plan for the

area. 81 Fed. Reg. 27039. Given this consistency in FWS’

rationale for banning hunting of coyotes, lynx, and wolves

in the Skilak WRA, reversal of the summary judgment order

is unwarranted.

d.

Safari Club seeks reversal of the summary judgment

order because the district court improperly imposed upon the

State and Safari Club the burden of identifying the evidence

or data in the record that FWS ignored in justifying its ban

on coyote, lynx, and wolf hunting in the Skilak WRA. In the

alternative, Safari Club asserts that, even if it had to identify

materials ignored by FWS, it carried this burden by citing a

supplemental EA for the 1985 Kenai Refuge conservation

plan and two letters from the State to FWS regarding

development of a Skilak WRA conservation plan. These

contentions are unsupported by the law or the record.

To the extent that Safari Club chose to challenge the

Kenai Rule as arbitrary and capricious because the agency

did not address contrary record evidence, Safari Club had to

support its arguments by specifically identifying the

allegedly ignored record evidence for the district court.

Otherwise, Safari Club’s contentions on this point would

consist of bare assertions unsupported by evidence in the

record, which cannot survive summary judgment. See Fed.

R. Civ. P. 56(c)(1)(A)–(B) (noting that, at the summary

judgment stage, parties must support claims by “citing to

particular parts of materials in the record,” or showing that

the cited materials cannot create a genuine dispute of

material fact for trial).

34 SAFARI CLUB INT’L V. HAALAND

Safari Club nevertheless mischaracterizes the

supplemental EA for the 1985 Kenai Refuge conservation

plan, which defines lynx and wolves as wilderness-

dependent species and states that “[i]ncreased recreational

use would have negligible impacts over most of this area, but

could result in some displacement of wilderness-dependent

wildlife from the Skilak [WRA].” This supports, rather than

defeats, FWS’ conclusion that the hunting of coyotes, lynx,

and wolves in the Skilak WRA would reduce opportunities

for the public to view these species therein. 81 Fed. Reg.

27038. Safari Club’s briefing and the administrative record

also undercut its claim that FWS ignored this supplemental

EA in enacting the final Kenai Rule. Safari Club describes

this supplemental EA as “attached to” the 1985 Kenai

Refuge conservation plan, and the final Kenai Rule cites to

this 1985 conservation plan three times. See 81 Fed. Reg.

27031, 27038, 27039. In this context, we cannot, as Safari

Club urges, vacate the Kenai Rule on the basis that FWS

improperly ignored the supplemental EA for the 1985 Kenai

Refuge conservation plan in enacting this rule. 81 Fed. Reg.

27031.

Safari Club’s discussion of two letters from the State to

FWS regarding the development of the 2007 management

plan and 2010 conservation plan for the Skilak WRA is not

persuasive because these documents are not part of the

administrative record for the final Kenai Rule, a fact Safari

Club concedes. Powell, 395 F.3d at 1029–30. Nor do we

credit Safari Club’s claim that these documents should have

been in the administrative record.

“[A] court reviewing an agency’s action may examine

extra-record evidence only in limited circumstances that are

narrowly construed and applied.” Goffney v. Becerra,

995 F.3d 737, 747–48 (9th Cir. 2021) (cleaned up). These

SAFARI CLUB INT’L V. HAALAND 35

circumstances exist where: (1) admission of extra-record

evidence is necessary to ascertain whether the agency

considered all relevant factors and explained its decision;

(2) the agency relied on documents not in the record;

(3) clarification of technical matter is needed; or (4) the

agency acted in bad faith. Powell, 395 F.3d at 1030. Safari

Club sets out no colorable arguments that any of these four

circumstances are present here. It urges supplementation of

the administrative record because: (1) the district court

erroneously required Safari Club to identify evidence that

FWS ignored in enacting the Skilak WRA aspect of the

Kenai Rule; (2) the Skilak WRA element of the Kenai Rule

is invalid for lack of supporting data; and (3) the letters from

the State to FWS contain data showing that hunting of

coyotes, lynx, and wolves in the Skilak WRA would not

reduce opportunities to view those species therein. We have

already explained that the first two contentions are incorrect.

Nor do the letters cited by Safari Club contain any data as to

the impact of hunting of coyotes, lynx, and wolves in the

Skilak WRA on the observability of those species in the

Skilak WRA. We decline to supplement the administrative

record here because Safari Club sets out no grounds for

doing so. See Goffney, 995 F.3d at 747–48. And agency

actions benefit from a presumption of regularity, meaning

courts must “presume that [the] agency properly designated

the Administrative Record absent clear evidence to the

contrary.” Id. at 748. Safari Club identifies no such clear

evidence, so we must presume that FWS properly defined

the administrative record. See id. As a result, we will not

consider Safari Club’s extra-record evidence. See id.

iii.

Safari Club finally claims that enactment of the Kenai

Rule was procedurally improper because FWS did not make

36 SAFARI CLUB INT’L V. HAALAND

necessary predicate findings that the baiting of brown bears

and the hunting of coyotes, lynx, and wolves in the Skilak

WRA are incompatible with refuge purposes. This assertion

relies on a 2007 compatibility determination (CD) in which

FWS classified hunting of brown bears and furbearers,

which Safari Club defines as “predators,” as a compatible

use of the Kenai Refuge. Safari Club further notes that the

2007 CD deemed black bear baiting a compatible use of the

Kenai Refuge and treats this conclusion as applicable to

brown bears.

But ANILCA does not require FWS to follow any formal

procedures or issue any findings before regulating human

uses of the Kenai Refuge. See ANILCA § 304(b). FWS may

exercise this power based on various factors including

compatibility with refuge purposes, public health and safety,

and resource protection. 50 C.F.R. § 36.42(b). FWS

addressed all of these factors in the Kenai Rule. 81 Fed. Reg.

27035–39. And, although FWS must give advance notice,

conduct public hearings, and publish its decision in the

Federal Register before issuing a hunting restriction or

permanent closure, FWS complied with these procedures, so

reversal on procedural grounds is unwarranted. See

50 C.F.R. § 36.42(e); 81 Fed. Reg. 27032; 78 Fed. Reg.

66061–64.

In any case, Safari Club’s reliance on the 2007 CD is

unavailing because it states that hunting is a compatible use

of the Kenai Refuge subject to any stipulations needed to

ensure compatibility. These stipulations included the

restrictions on brown bear baiting and hunting in the Skilak

WRA “for visitor safety [or] to protect other values such as

promoting wildlife viewing and photography.” FWS’

codification of these restrictions in the Kenai Rule is

consistent with this CD. 81 Fed. Reg. 27039; 78 Fed. Reg.

SAFARI CLUB INT’L V. HAALAND 37

66063. The agency would otherwise have neglected its

statutory duty to manage the Kenai Refuge in line with the

purpose of that refuge and its management plans. ANILCA

§§ 303(4)(B)(i); 304(b); 304(g)(3). We reject Safari Club’s

request to disturb the district court’s summary judgment

order on grounds relating to the 2007 CD for these reasons.

D. The NEPA Claim

The State and Safari Club set out a two-part NEPA

argument. They first assert that the Kenai Rule changed the

environmental status quo in the Kenai Refuge such that

NEPA review is required. Second, the State and Safari Club

claim that FWS improperly fulfilled its NEPA obligations

for the Kenai Rule through categorical exclusions (CE). We

reject this NEPA claim of the State and Safari Club.

Even assuming NEPA’s procedures apply to the Kenai

Rule, 1 “[a]n agency satisfies NEPA if it applies its

categorical exclusions and determines that neither an EA nor

an EIS is required, so long as the application of the

exclusions to the facts of the particular action is not arbitrary

and capricious.” Bicycle Trails Councils of Marin v. Babbitt,

82 F.3d 1445, 1456 n.5 (9th Cir. 1996). The disputed parts

of the Kenai Rule codified longstanding constraints on

1

The government asserts that the Kenai Rule maintained the

environmental status quo and NEPA is inapplicable because “NEPA

procedures do not apply to federal actions that maintain the

environmental status quo.” Kootenai Tribe of Idaho v. Veneman,

313 F.3d 1094, 1114 (9th Cir. 2002), abrogated on other grounds by

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).

We need not address this issue because it is unnecessary to resolve this

case. And the district court’s grant of summary judgment on this basis

does not control because we may affirm “on any ground supported by

the record.” Oyama v. Univ. of Haw., 813 F.3d 850, 860 (9th Cir. 2015)

(cleaned up).

38 SAFARI CLUB INT’L V. HAALAND

hunting in the Kenai Refuge, 81 Fed. Reg. 27035, 27038;

80 Fed. Reg. 29279, and the fact that these limitations

changed from state to federal restrictions did not alter the

permitted levels of use in the Kenai Refuge. In this context,

FWS sensibly decided that the Kenai Rule fits a CE 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.” 81 Fed. Reg.

27033. No basis for reversal exists here. See Bicycle Trails,

82 F.3d at 1456 n.5; Cal. v. Norton, 311 F.3d 1162, 1176

(9th Cir. 2002) (“In many instances, a brief statement that a

categorical exclusion is being invoked will suffice [to

comply with NEPA].”); Nat’l Tr. for Historic Pres. v. Dole,

828 F.2d 776, 781 (D.C. Cir. 1987) (“By definition, CE’s are

categories of actions that have been predetermined not to

involve significant environmental impacts, and therefore

require no further agency analysis absent extraordinary

circumstances.”).

The State and Safari Club urge us to hold otherwise

because “extraordinary circumstances” required an EIS or

EA for the Kenai Rule. We disagree. The State and Safari

Club incorrectly suggest that their opposition to the Kenai

Rule and the ensuing public controversy is an extraordinary

circumstance that triggered FWS’ obligation to prepare an

EIS or EA. “Mere opposition to an action does not, by itself,

create a controversy within the meaning of NEPA

regulations.” Am. Wild Horse Campaign v. Bernhardt,

963 F.3d 1001, 1011 (9th Cir. 2020). “A project is highly

controversial if there is a substantial dispute about the size,

nature, or effect of the major Federal action rather than the

existence of opposition to a use.” Bark v. U.S. Forest Serv.,

958 F.3d 865, 870 (9th Cir. 2020) (cleaned up). No

documents cited by the State and Safari Club indicate that

SAFARI CLUB INT’L V. HAALAND 39

the disputed parts of the Kenai Rule have highly

controversial, uncertain, or unique environmental effects, so

reversal is unjustified for lack of any “substantial evidence

in the record that exceptions to the [CE] may apply.”

Norton, 311 F.3d at 1176; see Am. Wild Horse, 963 F.3d at

1008 (“NEPA regulations do not anticipate the need for an

EIS [or EA] anytime there is some uncertainty.”).

In the alternative, the State and Safari Club seek remand

of the Kenai Rule to FWS for NEPA analysis because FWS

did not adequately explain its application of the CE for

regulations that maintain existing levels of use of FWS-

managed lands, or sufficiently justify its conclusion that no

extraordinary circumstances are present. We will not grant

relief on this basis because, to the extent that any such errors

may exist, they were harmless for the reasons previously

stated. See 5 U.S.C. § 706 (“[D]ue account shall be taken of

the rule of prejudicial error [in reviewing agency

decisions].”); Idaho Wool Growers Ass’n v. Vilsack,

816 F.3d 1095, 1104–05 (9th Cir. 2016); Drakes Bay Oyster

Co. v. Jewell, 747 F.3d 1073, 1090–91 (9th Cir. 2014).

V. CONCLUSION

The district court properly entered summary judgment

for FWS on all claims.

AFFIRMED.