State of Alaska Department of v. Federal Subsistence Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ALASKA No. 22-35097

DEPARTMENT OF FISH AND

GAME, D.C. No.

Plaintiff-Appellant, 3:20-cv-00195-

SLG

v.

FEDERAL SUBSISTENCE BOARD; OPINION

DAVID SCHMID, in his official

capacity as the Regional Supervisor

for the United States Forest Service;

SONNY PERDUE, in his official

capacity as the United States Secretary

of Agriculture; GENE PELTOLA, in

his official capacity as Alaska

Regional Director, Bureau of Indian

Affairs; GREGORY SIEKANIEC, in

his official capacity as Alaska

Regional Director, United States Fish

and Wildlife Service; CHAD

PADGETT, in his official capacity as

State Director for Alaska, United

States Bureau of Land Management;

DON STRIKER, in his official

capacity as Alaska Regional

Supervisor, National Park Service;

DAVID BERNHARDT, in his official

capacity as the United States Secretary

2 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

of the Interior; ANTHONY

CHRISTIANSON, in his official

capacity as Chair of the Federal

Subsistence Board; CHARLIE

BROWER, in his official capacity as

Member of the Federal Subsistence

Board; RHONDA PITKA, in her

official capacity as Member of the

Federal Subsistence Board,

Defendants-Appellees,

and

ORGANIZED VILLAGE OF KAKE,

Intervenor-Defendant-Appellee.

Appeal from the United States District Court

for the District of Alaska

Sharon L. Gleason, Chief District Judge, Presiding

Argued and Submitted December 9, 2022

San Francisco, California

Filed March 14, 2023

Before: Jacqueline H. Nguyen and Lucy H. Koh, Circuit

Judges, and Stephen R. Bough, * District Judge.

Opinion by Judge Bough

*

The Honorable Stephen R. Bough, United States District Judge for the

Western District of Missouri, sitting by designation.

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 3

SUMMARY **

Alaska National Interest Lands Conservation

Act/Mootness

The panel reversed in part and vacated in part the district

court’s decision in an action challenging the Federal

Subsistence Board’s approval in 2020 of two short-term

changes to hunting practices on federal public lands in

Alaska, specifically (1) the Board’s opening of an

emergency hunt for Intervenor, the Organized Village of

Kake; and (2) the Board’s partial temporary closure of public

lands in game management Unit 13 to nonsubsistence users.

The State of Alaska Department of Fish and Game

brought this action against the Board and several federal

officials, alleging that the changes violated the Alaska

National Interest Lands Conservation Act (“ANILCA”) and

the Administrative Procedure Act. Before the district court

issued its decision, the Kake Hunt ended, and the district

court deemed the challenge to it moot. And while this

appeal was pending, the partial Unit 13 closure expired.

The panel first held that Alaska’s claim that the Board

violated ANILCA by opening the 60-day emergency Kake

hunt without statutory authority was not moot because it fit

within the mootness exception of being capable of repetition

yet evading review. First, there was evidence that the Board

had opened emergency hunts in the past. Second, the

regulation under which the Board authorized the Kake hunt

remained in effect. Finally, the public interest in having the

**

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

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

4 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

legality of the practices settled militated against a mootness

conclusion. Alaska’s claim that ANICLA did not authorize

the federal government to open emergency hunting seasons

raised a question of first impression in this circuit and

required resolution of complicated issues of statutory

interpretation. Noting that the district court had not reached

the merits, the panel remanded this claim to the district court.

With regard to Alaska’s partial Unit 13 closure claim, the

panel vacated the part of the district court’s order that

addressed the claim and remanded with instructions to

dismiss that claim as moot. From the regulations and record,

it was clear that the Board would rely on new facts and

analysis in responding to any future temporary closure

request.

COUNSEL

Laura Wolf (argued) and Cheryl R. Brooking, Assistant

Attorneys General, Office of the Alaska Attorney General,

Anchorage, Alaska, for Plaintiff-Appellant.

Kevin W. McArdle (argued), Rachel Heron, Shannon

Boylan, and Paul A. Turcke, Attorneys, Environment and

Natural Resources Division; Todd Kim, Assistant Attorney

General; United States Department of Justice; Washington,

D.C.; Kenneth M. Lord, Attorney, United States Department

of the Interior, Washington, D.C.; for Defendants-Appellees.

Whitney A. Leonard (argued), Richard D. Monkman, and

Lloyd B. Miller, Sonosky Chambers Sachse Miller &

Monkman, Anchorage, Alaska; Eric C. Dougherty Lynch,

Megan R. Condon, Maggie Massey, Heather Kendall Miller,

and Matthew N. Newman, Native American Rights Fund,

Anchorage, Alaska; for Defendant-Intervenor-Appellee.

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 5

James H. Lister and Brian V. Gerd, Birch Horton Bittner &

Cherot PC, Washington, D.C., for Amicus Curiae Alaska

Outdoor Council.

OPINION

BOUGH, District Judge:

In 2020, the Federal Subsistence Board (“FSB”)

approved two short-term changes to hunting practices on

federal public lands in Alaska. First, the FSB opened an

emergency hunt for Intervenor, the Organized Village of

Kake (“Kake hunt”). Second, the FSB instituted a partial,

temporary closure of public lands in game management Unit

13 to nonsubsistence users (“partial Unit 13 closure”).

Plaintiff-Appellant State of Alaska Department of Fish and

Game (“Alaska”) brought this action against Defendants-

Appellees, the FSB and several federal officials, alleging

that the changes violated the Alaska National Interest Lands

Conservation Act (“ANILCA”) and the Administrative

Procedure Act (“APA”). 1 We have jurisdiction under 28

U.S.C. § 1291.

Before the district court issued its decision, the Kake

Hunt ended, and the district court deemed the challenge to it

moot. We review a dismissal for mootness de novo. See

Am. Diabetes Ass’n v. United States Dep’t of the Army, 938

F.3d 1147, 1151 (9th Cir. 2019). While this appeal was

1

Alaska also claimed that the FSB violated the Open Meetings Act in

various ways, including by delegating rulemaking authority without

allowing public observation. Alaska does not raise this cause of action

on appeal, and it is therefore forfeited. See Orr v. Plumb, 884 F.3d 923,

932 (9th Cir. 2018).

6 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

pending, the partial Unit 13 closure expired. We are

therefore obligated to address mootness as to the partial Unit

13 closure for the first time here. See Renee v. Duncan, 686

F.3d 1002, 1016 (9th Cir. 2012). We reverse in part, vacate

in part, and remand.

I. BACKGROUND

Under ANILCA, the federal government, through the

FSB, manages subsistence uses of fish and wildlife on

federal public lands in Alaska. See Ninilchik Traditional

Council v. United States, 227 F.3d 1186, 1189 (9th Cir.

2000); see also 50 C.F.R. § 100.10(a). The FSB has

regulatory authority to enact special actions to open and

close hunting on public lands. See 50 C.F.R. § 100.19; 36

C.F.R. § 242.19. In emergency situations, the FSB may

immediately open or close hunting on public lands for up to

60 days, if necessary for certain permissible reasons. See 50

C.F.R. § 100.19(a); 36 C.F.R. § 242.19(a). The FSB may

also temporarily open or close hunting on public lands for

longer periods, not to exceed the current regulatory cycle.

See 50 C.F.R. § 100.19(b); 36 C.F.R. § 242.19(b). However,

those temporary special actions require adequate notice and

public hearing. See 50 C.F.R. § 100.19(b); 36 C.F.R. §

242.19(b).

Alaska brought this action to challenge the FSB’s

approval of two special action requests.

First, in early 2020, with the onset of the COVID-19

pandemic, the FSB received numerous emergency special

action requests from subsistence users related to food

security concerns. The Organized Village of Kake, a

federally recognized tribe, submitted a special action request

for the opening of an emergency season on public lands to

harvest five deer and two moose. The FSB approved the

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 7

request for reasons of public safety, and the Kake hunt was

completed in August 2020.

Second, in February 2020, the FSB received a temporary

special action request from an Alaskan resident to close all

public lands in game management Unit 13 to caribou and

moose hunting for nonsubsistence uses during the 2020

season. 2 The special action request asserted that a closure

was necessary to address public safety concerns related to

hunting practices in the unit as well as the impact of those

practices on subsistence hunting. The FSB received

analyses and recommendations from the Office of

Subsistence Management and the Interagency Staff

Committee. The FSB also held a public hearing for

comments and testimony from interested parties. In July

2020, the FSB approved the temporary special action

request, with modifications, finding it was necessary for the

continuation of subsistence uses and for public safety. The

FSB limited the closure to subunits 13A and 13B because it

was in those areas where the most overcrowding, disruption

of hunts, and safety concerns had occurred. The FSB

granted the partial closure for two years to reduce

administrative burdens associated with processing additional

requests. The partial Unit 13 closure expired on June 30,

2022.

On August 10, 2020, Alaska filed suit against the FSB

and several federal officials alleging that the special action

decisions violated ANILCA and APA. The district court

granted the Organized Village of Kake’s motion to intervene

2

Federal regulation divides Alaska into twenty-six game management

units. See 50 C.F.R. § 100.4. “Nonsubsistence uses” here refers to

hunting that does not qualify as “subsistence uses” by “rural Alaska

residents” under Section 803 of ANILCA. 16 U.S.C. § 3113.

8 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

and denied Alaska’s motions for a temporary restraining

order and a preliminary injunction.

The district court issued its final decision in December

2021. Dep’t of Fish & Game v. Fed. Subsistence Bd., 574 F.

Supp. 3d 710 (D. Alaska 2021). The district court found

Alaska’s Kake hunt claims moot because the hunt had been

completed and the claims did not fit within the “capable of

repetition, yet evading review” exception to the mootness

doctrine. As for Alaska’s claims challenging the partial Unit

13 closure, the district court found that the FSB did not act

arbitrarily or capriciously when it determined that the partial

closure was necessary for the continuation of subsistence

uses and for public safety, and that extending the partial

closure for a two-year period was consistent with

regulations. Alaska timely appealed.

II. ANALYSIS

“Judicial review of administrative action, like all

exercises of the federal judicial power, is limited by the

requirement that there be an actual, live controversy to

adjudicate.” Campesinos Unidos, Inc. v. U.S. Dep’t of Lab.,

803 F.2d 1063, 1067 (9th Cir. 1986). Here, the Kake hunt is

complete, and the partial Unit 13 closure has expired.

Alaska implicitly acknowledges that its claims are moot but

argues they may still be reviewed because they are capable

of repetition and would otherwise evade review.

“Generally, an action is mooted when the issues

presented are no longer live and therefore the parties lack a

legally cognizable interest for which the courts can grant a

remedy.” Alaska Ctr. For Env’t v. U.S. Forest Serv., 189

F.3d 851, 854 (9th Cir. 1999). However, we may decline to

dismiss an otherwise moot action if the challenged conduct

is “capable of repetition, yet evading review.” This

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 9

exception to the mootness doctrine is met when “(1) the

duration of the challenged action is too short to allow full

litigation before it ceases or expires, and (2) there is a

reasonable expectation that the plaintiffs will be subjected to

the challenged action again.” Karuk Tribe of Cal. v. U.S.

Forest Serv., 681 F.3d 1006, 1018 (9th Cir. 2012). The

plaintiff has the burden of showing that the exception

applies. See Native Vill. of Nuiqsut v. Bureau of Land

Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021) (explaining that

unlike the initial mootness question, where the defendants

have the burden, the plaintiff has the burden of showing that

there is a reasonable expectation that they will once again be

subjected to the challenged activity).

A. Kake Hunt

Alaska challenges the district court’s mootness

determination as to only one of its claims related to the Kake

hunt: that ANILCA does not authorize the federal

government to open emergency hunting seasons. 3 Alaska

argues that claim is excepted from mootness because the

opening of an emergency hunt is capable of repetition and

will evade review. We agree.

An issue evades review if the underlying action will

almost certainly run its course before full litigation can be

completed. See Biodiversity Legal Found. v. Badgley, 309

F.3d 1166, 1173 (9th Cir. 2002). The FSB’s authorization

for the emergency hunt was limited to the 60 days permitted

under the regulations. See 50 C.F.R. § 100.19(a); 36 C.F.R.

§ 242.19(a). We have determined that actions of longer

3

This claim appears in Alaska’s complaint as its second claim for relief.

Alaska’s other claims for relief related to the Kake hunt are not raised in

the opening brief, and so are forfeited. See Orr, 884 F.3d at 932.

10 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

duration evade review. See e.g., Native Vill. of Nuiqsut, 9

F.4th at 1209 (winter exploration program lasting five

months evaded review); Nat. Res. Def. Council, Inc. v.

Evans, 316 F.3d 904, 910 (9th Cir. 2003) (one-year time

span for challenged specifications too short to allow for full

litigation). Neither the government nor the Organized

Village of Kake challenge this conclusion. The first prong

of the mootness exception is satisfied.

Turning to the “capable of repetition” prong, Alaska

must show that there is “some indication that the challenged

conduct will be repeated.” Alaska Ctr. For Env’t, 189 F.3d

at 856. The FSB argues, and the district court concluded,

that there was no reasonable likelihood that the FSB would

again approve an emergency special action like the Kake

hunt because the conditions of the COVID-19 pandemic

have changed. This framing of the challenged action is too

narrow. See Cal. Energy Res. Conservation & Dev. Comm’n

v. Bonneville Power Admin., 754 F.2d 1470, 1473 (9th Cir.

1985) (finding that defendant characterized “too narrowly”

the type of action challenged); see also Alaska Ctr. For

Env’t, 189 F.3d at 856-57 (explaining that issue was not

whether the exact same permit would be issued again, but

whether the agency would issue other permits like the one

challenged).

In its complaint, Alaska broadly asserted that ANILCA

does not confer statutory authority on the federal

government, including the FSB, to open emergency hunting

seasons. That claim is not based on the particular

circumstances of the Kake hunt, including the status of the

COVID-19 pandemic. Rather, it challenges the FSB’s

general action of opening an emergency hunt. See

Greenpeace Action v. Franklin, 14 F.3d 1324, 1329-30 (9th

Cir. 1992) (“major issue” of whether the agency had

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 11

adequately examined the effects of fishing on sea lions was

likely to recur).

Based on the evidence provided by Alaska, we conclude

that there is a reasonable expectation that this challenged

action will recur. First, there is evidence that the FSB has

opened emergency hunts in the past. See Alcoa, Inc. v.

Bonneville Power Admin., 698 F.3d 774, 787 (9th Cir. 2012)

(“[T]he challenged conduct is capable of repetition where

there is evidence that it has occurred in the past . . . .”). In

2018, in response to a localized food shortage caused by a

power outage, the FSB approved a special action request for

an emergency moose hunt. In 2020, in response to the

COVID-19 pandemic and associated food security concerns,

the FSB received 11 special action requests for emergency

hunts, approving one of them, the Kake hunt. This shows

more than a “mere physical or theoretical possibility” that

the FSB will again approve the opening of an emergency

hunt in the future. See Murphy v. Hunt, 455 U.S. 478, 482

(1982).

In addition, the regulation under which the FSB

authorized the Kake hunt remains in effect, and the FSB has

made no commitment not to rely on the regulation in the

future. Compare Brach v. Newsom, 38 F.4th 6, 13, 15 (9th

Cir. 2022) (en banc) (finding no reasonable expectation of

recurrence when state publicly renounced pursuing the

challenged action in the future) with Native Vill. of Nuiqsut,

9 F.4th at 1212 (holding that continued reliance on an

environmental report “would likely allow Plaintiffs to show

that their claims were ‘capable of repetition’”).

Finally, “public interest in having the legality of the

practices settled, militates against a mootness conclusion.”

United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953).

12 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

Whether ANILCA provides the federal government with

authority to open these emergency hunts is a question of first

impression in this court. 4 Until the issue is settled, the State

and FSB may be unable to effectively manage and conserve

wildlife populations. See Alaska Fish & Wildlife Fed’n &

Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 939 (9th Cir.

1987) (finding a strong public interest mitigating against

mootness where uncertainty as to which laws governed

subsistence hunting of migratory game birds in Alaska could

make it impossible to address the migratory birds’

population decline); see also Greenpeace Action, 14 F.3d at

1330 (finding a continuing public interest in determining the

standards governing the decision to authorize a certain level

of pollock fishing in the Gulf of Alaska). These emergency

action requests arise out of unpredictable situations that need

immediate attention. Clarifying the FSB’s authority to act

in those situations will further the public interest.

Alaska’s claim that the FSB violated ANILCA by

opening the Kake hunt without statutory authority fits within

the mootness exception. The district court did not reach the

merits of this claim. “In general, an appellate court does not

decide issues that the trial court did not decide.” Planned

Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t of

Health & Hum. Services, 946 F.3d 1100, 1110 (9th Cir.

2020). But this rule is “not inflexible,” and the appellate

court has discretion to address a claim in the first instance

4

We disagree with Defendants-Appellees’ argument that John v. United

States, 1994 WL 487830 (D. Alaska Mar. 30, 1994), already resolved

this issue. That case considered the basic question of whether the federal

government has any authority to manage the ANILCA subsistence

priority. Id. at *9. But it did not reach the issue raised in this case of the

parameters of that authority. See State of Alaska v. Babbitt, 72 F.3d 698,

700 n.2 (9th Cir. 1995).

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 13

“if the question is a purely legal one and the record has been

fully developed prior to appeal.” See Quinn v. Robinson,

783 F.2d 776, 814 (9th Cir. 1986).

Assuming we have discretion here, we decline to

exercise it. Alaska’s claim raises a question of first

impression in this circuit and requires resolution of

complicated issues of statutory interpretation. See Merritt v.

Countrywide Fin. Corp., 759 F.3d 1023, 1035 (9th Cir.

2014) (declining to decide in the first instance a question that

raised complicated issues of statutory interpretation and

administrative law of first impression). We therefore

remand this claim to the district court.

B. Partial Unit 13 Closure

We next turn to Alaska’s challenge to the FSB’s partial

temporary closures within game management Unit 13. The

parties agree that the FSB has authority to close hunting, but

disagree about whether, in this instance, the FSB’s closure

determination was adequate. We must first decide whether

we have jurisdiction over Alaska’s challenge given that the

partial Unit 13 closure expired in June 2022. See Renee, 686

F.3d at 1016. Alaska argues its claim is excepted from

mootness because it is capable of repetition, yet will evade

review. We disagree.

The two-year closure is of a limited duration sufficient

to meet the first prong of the mootness exception. See Karuk

Tribe of California, 681 F.3d at 1018 (“We have repeatedly

held that [activities impacting the environment] lasting only

one or two years evade[s] review.”); Alaska Ctr. For Env’t,

189 F.3d at 855 (duration of two-year permit too short to

allow for full litigation before expiration of permit). The

FSB contends that this action would not have evaded review

if Alaska had acted more promptly, including seeking

14 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

expedited review. But requesting expedited review is not a

prerequisite for application of this mootness exception. Id.

at 856 (“There is no authority in this circuit for concluding

that the repetition/evasion exception is inapplicable when

the parties fail to seek expedited review under circuit

rules.”). And even if Alaska had sought and been granted

expedited proceedings, there would have been no guarantee

that full judicial review would have occurred before the

partial Unit 13 closure expired. The first prong of the

mootness exception is, therefore, satisfied.

The second prong of the mootness exception requires

that Alaska show it is likely to suffer “the same or very

similar harm” by the FSB. Alcoa, Inc., 698 F.3d at 786. We

have previously found the “capable of repetition”

component to be met where an agency will rely on the same

biological opinion or environmental report to inform its

future actions. See Greenpeace Action, 14 F.3d at 1330

(same challenged action likely to recur where the agency

was relying on the same biological opinion in support of the

same determination the following year); see also Native Vill.

of Nuiqsut, 9 F.4th at 1210 (noting that when “same report”

will be used “in approving a future project . . . the case is not

moot”). In contrast, where the agency will base future

decisions on a new report with different facts and analysis,

we have found that there is no reasonable expectation of

repetition. See Idaho Dep’t of Fish & Game v. Nat’l Marine

Fisheries Serv., 56 F.3d 1071, 1075 (9th Cir. 1995) (holding

there is no reasonable expectation of repetition when agency

would be relying on a new biological opinion in the future);

Native Vill. of Nuiqsut, 9 F.4th at 1212 (finding that plaintiffs

had not met their burden in showing a reasonable

expectation that they would be subjected to challenged

action again where future actions would rely on new

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 15

information). Moreover, when future decisions will be

based on different criteria, factors, or methods, we have also

found no reasonable expectation of repetition. See Ramsey

v. Kantor, 96 F.3d 434, 446 (9th Cir. 1996) (challenge not

capable of repetition “where an agency will be basing its

rulings on different criteria or factors in the future”).

Alaska argues that the FSB will once again close public

lands in Unit 13 to nonsubsistence users for reasons similar

to those cited for its 2020 decision. The temporary special

action regulations that govern the FSB’s closure of public

lands undercut Alaska’s argument. See generally 50 C.F.R.

§ 100.19(b); 36 C.F.R. § 242.19(b). To start, those

regulations require the FSB to provide a new “public

hearing” and, therefore, to accept new rounds of public

comment, for each proposed temporary closure. 50 C.F.R.

§ 100.19(b); 36 C.F.R. § 242.19(b). They also require

consultation for each proposed temporary closure “with the

State of Alaska and the Chairs of the Regional Councils of

the affected regions,” inevitably resulting in more new

information for the FSB to consider. 50 C.F.R. §

100.19(b)(1)(ii); 36 C.F.R. § 242.19(b)(1)(ii). Moreover,

under the regulations, the FSB is obligated to analyze new

factual information for each proposed temporary closure

because the Board must determine that the proposed

temporary closure “will not interfere with the conservation

of healthy fish and wildlife populations, will not be

detrimental to the long-term subsistence use of fish and

wildlife resources, and is not an unnecessary restriction on

nonsubsistence users.” 50 C.F.R. § 100.19(b)(1); 36 C.F.R.

§ 242.19(b)(1). Finally, the regulations require that the FSB

limit the proposed temporary closure “to the minimum time

period or harvest limit determined by the Board to be

necessary under the circumstances,” which again results in

16 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.

the FSB considering a new set of facts and conducting new

analysis for each proposed temporary closure. 50 C.F.R.

§ 100.19(b)(2); 36 C.F.R. § 242.19(b)(2). Thus, although

Alaska argues that the FSB may start to “rubberstamp”

closure requests, the regulations governing temporary

closures belie that claim.

The record in this case exemplifies why Alaska’s claim

lacks merit. In processing the 2020 special action request,

the FSB incorporated information from its consideration of

prior Unit 13 closure requests in 2002 and 2019. But,

consistent with the governing regulations, the FSB also held

a new hearing, accepted new staff analysis and

recommendations, and considered new data on Unit 13,

including new information about animal population size and

composition, harvest success rates, permit usage, and

more. That new information resulted in the Board adopting

a more targeted closure than requested or considered in

2019. In other words, the FSB based its 2020 approval on

the entire record, including new information and analysis not

previously available or considered in prior years. Compare

Idaho Dep’t of Fish & Game, 56 F.3d 1071, 1075 (9th Cir.

1995) (holding there is no reasonable expectation of

repetition when agency would be relying on a new biological

opinion in the future), with Nat. Res. Def. Council, Inc., 316

F.3d at 910 (reasonable expectation that same issue will

recur where agency repeated “the same rationale . . . year

after year”).

From the regulations and record, then, it is clear that the

FSB will rely on new facts and analysis in responding to any

future temporary closure request. Indeed, if the FSB does

consider a request to temporarily close all or part of Unit 13

in the future, it is clear that one entirely new and significant

part of its deliberations will concern the effects of the partial

STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 17

Unit 13 closure in 2020 through 2022. Our conclusion does

not change simply because the FSB may consider data from

its deliberations regarding prior Unit 13 temporary closure

requests. Given all this, we conclude that the second prong

of the mootness exception is not met. Cf. Native Vill. of

Nuiqsut, 9 F.4th at 1210 (“Our precedent has focused on

whether the environmental report at issue is confined to the

challenged action only, or whether the agency will use that

same report in approving a future project. If the latter is true,

then the case is not moot.”).

Accordingly, the challenge to the FSB decision to

partially close Unit 13 is moot. We vacate the district court’s

decision in part as to that claim and remand with instructions

to dismiss it as moot. See All. for the Wild Rockies v. Savage,

897 F.3d 1025, 1032 (9th Cir. 2018) (“When mootness is not

caused by actions of the party seeking vacatur, we typically

will vacate the district court’s order.”); see also City & Cnty

of San Francisco v. Garland, 42 F.4th 1078, 1088 (9th Cir.

2022) (explaining that partial vacatur of a lower opinion can

be appropriate).

III. CONCLUSION

We reverse the district court’s dismissal of Alaska’s

claim that the FSB did not have authority to open the Kake

hunt and remand that claim to the district court for further

proceedings consistent with this opinion. With regard to

Alaska’s partial Unit 13 closure claim, we vacate the part of

the district court’s order that addresses the claim and remand

with instructions to dismiss that claim as moot. Each party

shall bear its own costs.

REVERSED in part; VACATED in part;

REMANDED.