Petition for Writ of Certiorari — Alaska, Petitioner v. Deb Haaland, Secretary of the Interior, et al.

Supreme Court briefOct 27, 2022

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APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Ninth Circuit

(April 18, 2022) . . . . . . . . . . . . . . . App. 1

Appendix B Order re Rule 54(b) Determination in

the United States District Court for

the District of Alaska

(February 5, 2021) . . . . . . . . . . . App. 44

Appendix C Amended Judgment in a Civil Action

in the United States District Court for

the District of Alaska

(February 8, 2021) . . . . . . . . . . . App. 53

Appendix D Order re Motions for Summary

Judgment in the United States

District Court for the District of

Alaska

(November 13, 2020) . . . . . . . . . . App. 55

Appendix E Order Denying Petition for Rehearing

En Banc in the United States Court of

Appeals for the Ninth Circuit

(July 29, 2022). . . . . . . . . . . . . . App. 136

Appendix F Statutory and Regulatory Provisions

Involved . . . . . . . . . . . . . . . . . . . App. 138

App. 1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 21-35030

D.C. Nos.

3:17-cv-00013-SLG

3:17-cv-00014-SLG

[Filed April 18, 2022]

_________________________________________

SAFARI CLUB INTERNATIONAL,

)

Plaintiff-Appellant,

)

and

)

STATE OF ALASKA,

)

Plaintiff,

)

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;

)

App. 2

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

)

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. )

_________________________________________ )

No. 21-35035

D.C. Nos.

3:17-cv-00013-SLG

3:17-cv-00014-SLG

_________________________________________

)

STATE OF ALASKA,

Plaintiff-Appellant,

)

App. 3

and

)

SAFARI CLUB INTERNATIONAL,

Plaintiff,

)

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

)

WILDLIFE REFUGES; DENALI CITIZENS

)

COUNCIL; COPPER COUNTRY ALLIANCE;

)

KACHEMAK BAY CONSERVATION SOCIETY;

)

DEFENDERS OF WILDLIFE; NATIONAL PARKS )

CONSERVATION ASSOCIATION; NATIONAL

)

WILDLIFE REFUGE ASSOCIATION; NORTHERN )

App. 4

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. )

_________________________________________ )

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

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.

App. 5

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.

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

App. 6

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 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 noncompetitive uses was a permissible exercise of the

Service’s authority under ANILCA. The Improvement

Act did not require the Service to allow all Statesanctioned 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;

App. 7

(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 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

App. 8

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

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.

App. 9

COUNSEL

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

Club International, Washington, D.C., for PlaintiffAppellant Safari Club International.

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

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

Attorney General, Anchorage, Alaska; for PlaintiffAppellant 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.

OPINION

GOULD, Circuit Judge:

Plaintiffs-Appellants State of Alaska (the State) and

Safari Club International separately sued DefendantAppellees 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

App. 10

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 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

App. 11

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 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

App. 12

is typically not required absent

circumstances, 40 C.F.R. § 1501.4.

extraordinary

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).

App. 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

App. 14

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 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

App. 15

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 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 Stateapproved 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.

App. 16

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

“[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

App. 17

“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 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.”).

App. 18

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. 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).

App. 19

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 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.

App. 20

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

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

App. 21

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. § 668dd(c), (m). ANILCA

authorizes FWS to enact regulations preempting Stateapproved hunting in the Kenai Refuge, Bernhardt, 946

F.3d at 558, and when ANILCA and the Improvement

App. 22

Act are in tension, the former prevails, see Pub. L. 10557 § 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.

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.

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.

App. 23

“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.

App. 24

The State urges us to void the Kenai Rule on the

basis that FWS improperly considered a predator

control factor 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.”

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

App. 25

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 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 humancaused 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

App. 26

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 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.

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

App. 27

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 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

App. 28

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 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

App. 29

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 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.

App. 30

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.

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 does not yet

exist”). And Safari Club identifies no studies on how

App. 31

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 preexisting 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).

App. 32

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 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

App. 33

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

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.

App. 34

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.

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).

Safari Club contests the Kenai Rule on the basis

that FWS did not explain its changed reason for

App. 35

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. 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.

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

App. 36

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).

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.

App. 37

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 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.

App. 38

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 necessary predicate findings that the

baiting of brown bears and the hunting of coyotes, lynx,

App. 39

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

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

App. 40

these restrictions in the Kenai Rule is consistent with

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

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).

App. 41

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 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

App. 42

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 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

App. 43

The district court properly entered summary

judgment for FWS on all claims.

AFFIRMED.

App. 44

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. 3:17-cv-00013-SLG

CONSOLIDATED

Case No. 3:17-cv-00014-SLG

[Filed February 5, 2021]

______________________________________

STATE OF ALASKA,

)

Plaintiff,

)

SCOTT DE LA VEGA, in his official

)

capacity as acting Secretary of the

)

U.S. Department of the Interior, et al.,

)

Federal Defendants,

)

and

)

ALASKA WILDLIFE ALLIANCE, et al., )

)

Intervenor-Defendants.

)

______________________________________

SAFARI CLUB INTERNATIONAL,

)

Plaintiff,

)

App. 45

)

SCOTT DE LA VEGA, in his official

)

capacity as acting Secretary of the

)

U.S. Department of the Interior, et al.,

)

Federal Defendants,

)

and

)

ALASKA WILDLIFE ALLIANCE, et al., )

)

Intervenor-Defendants.

)

______________________________________ )

ORDER RE RULE 54(b) DETERMINATION

On November 16, 2020, the Court entered a

judgment in these two consolidated cases.1 Federal

Rule of Civil Procedure 54(b) authorizes a court to

“direct entry of a final judgment as to one or more, but

fewer than all, claims . . . if the court expressly

determines that there is no just reason for delay.” The

Court’s judgment did not contain any reference to Rule

54(b). As discussed below, the Court finds that a Rule

54(b) determination is warranted.

As a preliminary matter, the Court notes that the

filing of a notice of appeal divests a district court of

jurisdiction to consider any issue that is the subject of

Case No. 3:17-cv-00013-SLG at Docket 220; Case No 3:17-cv00014-SLG at Docket 69.

App. 46

the appeal.2 Plaintiff Safari Club International filed a

notice of appeal on January 8, 2021.3 Plaintiff State of

Alaska filed a notice of appeal on January 12, 2021.4

Federal Defendants filed a notice of appeal on January

15, 2021.5 However, a district court retains jurisdiction

to make a Rule 54(b) determination after an appeal is

filed, so long as the issue of the sufficiency of a prior

Rule 54(b) determination has not already been raised

before the Ninth Circuit.6 Because of the potential

confusion the entry of a partial judgment without a

Rule 54(b) certification could cause at the appellate

level,7 the Court elects to exercise that jurisdiction and

enter this order.8

Nat’l Ass’n of Home Builders v. Norton, 325 F.3d 1165, 1167 (9th

Cir. 2003).

Docket 223 (Case No. 3:17-cv-00013-SLG).

Docket 225 (Case No. 3:17-cv-00013-SLG).

Docket 228 (Case No. 3:17-cv-00013-SLG).

Norton, 325 F.3d at 1168.

See Rollins v. Mortg. Elec. Registration Sys., Inc., 737 F.3d 1250,

1254 (9th Cir. 2013) (“It may be that, by entering judgment, the

[multi-district litigation] court intended for the judgment to be

appealable, but without a Rule 54(b) certification, we cannot be

certain.”); Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 889

(9th Cir. 2003) (“[P]ermitting jurisdiction without a clear

indication of finality [pursuant to a Rule 54(b) determination]

would confuse the parties and the public, possibly leading to

premature or untimely appeals.”).

If the Court is incorrect and in fact it does not have jurisdiction

to enter a Rule 54(b) certification at this juncture, the Court

App. 47

These consolidated cases raise challenges to two

distinct sets of hunting regulations. The Court’s

November 2020 order addressed Plaintiffs’ legal

challenges with respect to the “Kenai Rule,” which are

certain hunting regulations adopted by the U.S. Fish

and Wildlife Service (“FWS”) for the Kenai National

Wildlife Refuge.9 The order and resultant judgment

fully resolved all claims related to the Kenai Rule. Still

unresolved, and in fact still in the briefing stage, are

Plaintiffs’ claims with respect to an entirely different

set of regulations promulgated by the National Park

Service (“NPS”) regarding certain hunting and fishing

regulations in Alaska, the “NPS Rule.”10

Before issuing a Rule 54(b) certification, a “district

court must first determine that it has rendered a ‘final

judgment,’ that is, a judgment that is ‘an ultimate

disposition of an individual claim entered in the course

of a multiple claims action.’”11 A district court must also

“determine whether there is any just reason for

delay.”12 “It is left to the sound judicial discretion of the

intends that this order put the parties on notice of its intent if the

case is remanded for such a determination. Fed. R. Civ. P. 62.1;

Fed. R. App. P. 12.1. The Court recognizes that no party has

sought a Rule 54(b) certification from this Court.

81 Fed. Reg. 27030 (May 5, 2016) (codified at 50 C.F.R. § 36.39).

80 Fed. Reg. 64325 (Oct. 23, 2015) (codified at 36 C.F.R. § 13).

Wood v. GCC Bend, LLC, 422 F.3d 873, 878 (9th Cir. 2005)

(quoting Curtiss–Wright Corp. v. General Electric Co., 446 U.S. 1,

7 (1980)).

Id.

App. 48

district court to determine the appropriate time when

each final decision in a multiple claims action is ready

for appeal. This discretion is to be exercised in the

interest of sound judicial administration . . . .

[C]onsideration of judicial administrative interests is

necessary to assure that application of the Rule

effectively preserves the historic federal policy against

piecemeal appeals.”13

Here, the November 2020 judgment is final and

resolved all claims related to the Kenai Rule and the

Kenai National Wildlife Refuge. The Court also

determines that “there is no just reason for delay” in

entering judgment as to those claims, because the

remaining claims in this action are distinct, both

factually and legally, from the Kenai Rule claims, such

that a Rule 54(d) determination as to the Kenai Rule

claims is consistent with sound judicial administration.

The remaining claims not resolved in the Court’s

order at Docket 219 challenge the NPS Rule.14 After a

June 2020 amendment, the remaining portions of the

NPS Rule include regulations on the taking of wildlife

in national preserves in Alaska15; regulations on

subsistence fishing, hunting, and trapping16; and

changes to procedures for closing National Park

Id. (internal quotations omitted) (citing Curtiss–Wright Corp.,

446 U.S. at 8).

80 Fed. Reg. 64325 (Oct. 23, 2015) (codified at 36 C.F.R. § 13).

36 C.F.R. § 13.42.

36 C.F.R. §§ 13.470, 13.480, 13.490.

App. 49

System areas to certain activities, including taking fish

and wildlife.17 According to Plaintiffs, these changes

“liberalize the process for closure procedures for

National Preserves . . . in a way that deprives Alaska’s

hunters of proper notice of and recourse when the

NPS . . . intend[s] to close some or all federal lands to

hunting.”18

Although Plaintiffs have alleged that both rules

violate the Alaska National Interest Lands

Conservation Act (“ANILCA”), different provisions of

that act apply to each rule.19 Plaintiffs’ challenges to

the Kenai Rule focused on Title III of ANILCA, which

applies to wildlife refuges.20 In contrast, Titles II, VIII,

and XIII of ANILCA apply to national preserves.21

Plaintiffs also alleged the Kenai Rule violated the

National Wildlife Refuge System Improvement Act,

which does not apply to national preserves.22 Briefing

on the NPS Rule has not been filed, so it is not clear yet

exactly what the bases of Plaintiffs’ challenges to the

NPS Rule will be. But it is clear that Plaintiffs’

36 C.F.R. § 13.50.

Docket 59 at 4, ¶ 3(f) (Safari Club International’s Amended

Complaint) (Case No. 3:17-cv-00013-SLG).

Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16 U.S.C.

§ 3101 et. seq.).

ANILCA §§ 304(a); 303(4)(B); 16 U.S.C. § 668dd (note).

ANILCA §§ 203, 816, 1313; 16 U.S.C. §§ 410hh-2, 3126, 3201.

Docket 60 at 37–38, ¶¶ 136–41 (State of Alaska’s Amended

Complaint) (Case No. 3:17-cv-00013-SLG); 16 U.S.C. § 668dd–ee.

App. 50

challenges to each agency’s statutory authority to

promulgate the Kenai Rule and the NPS Rule arise

from distinct provisions of law.

Additionally, unlike the “routine employment

discrimination” claims at issue in Wood v. GCC Bend,

LLC,23 Plaintiffs’ challenges to each rule arise from

distinct facts. The challenges involve separate rules,

each of which has had its own rulemaking process,

comment period, and administrative record. The rules

apply to different geographical regions and were

promulgated by different federal agencies. Plaintiffs

also challenge separate NEPA analyses on different

bases; FWS determined that the Kenai Rule

constituted a categorical exclusion, whereas NPS

prepared an environmental assessment for the NPS

Rule and issued a finding of no significant impact.24

Because Plaintiffs’ challenges to the Kenai Rule and

the NPS Rule are plainly based on separate underlying

facts, a Rule 54(b) determination as to the Kenai Rule

is appropriate at this time, as “no appellate court would

have to decide the same issues more than once.”25

422 F.3d at 880 (“First, as Wood herself acknowledges, this case

would inevitably come back to this court on the same set of facts.”).

NPS prepared an environmental assessment pursuant to 40

C.F.R. § 1501.3 (as effective prior to Sept. 13, 2020). See Wildlife

Harvest on National Park System Preserves in Alaska:

Environmental Assessment September 2014 (available at

https://parkplanning.nps.gov/document.cfm?parkID=1&projectI

D=49062&documentID=61261 (last accessed Feb. 4, 2021).

Wood, 422 F. 3d at 878 n.2; see also Curtiss–Wright Corp., 446

U.S. at 8 (“Consideration of [judicial administrative interests] is

necessary to assure that application of the Rule effectively

App. 51

The Court’s determination is reflected by the fact

that after multiple stays pending proposed rulemaking,

Plaintiffs requested a briefing schedule that separated

the challenges to the Kenai Rule and the NPS Rule,

explaining that

[b]ecause the FWS Kenai Rule and the NPS

Rule were adopted by different agencies within

the Department of the Interior on separate

administrative records, Plaintiffs submit that

there is no reason that briefing regarding

judicial review challenges to those rules needs to

be filed on the same schedule, and indeed, prior

scheduling orders (DE 83 and 104) have

provided for separate briefing of challenges to

the FWS Kenai Rule and the NPS Rule, albeit

on the same schedule.26

As a result, the Court decided the Kenai Rule challenge

in November 2020, while the State of Alaska’s opening

brief on its claims challenging the NPS Rule is not due

until February 8, 2021.27

In light of the foregoing, the Court expressly

determines that there is no just reason for delay as to

the judgment entered regarding the Kenai Rule on

‘preserves the historic federal policy against piecemeal appeals.’”

(quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438

(1956))).

Docket 157-1 at 5 (Case No. 3:17-cv-00013-SLG).

Docket 222 (Case No. 3:17-cv-00013-SLG).

App. 52

November 16, 2020.28 The Clerk of Court is directed to

issue an amended judgment that includes this express

determination.

IT IS SO ORDERED.

DATED this 5th day of February, 2021 at Anchorage,

Alaska.

/s/ Sharon L. Gleason

UNITED STATES DISTRICT JUDGE

Case No. 3:17-cv-00013-SLG at Docket 220; Case No

3:17-cv-00014-SLG at Docket 69.

App. 53

APPENDIX C

UNITED STATES DISTRICT COURT

for the

District of Alaska

Civil Action No. 3:17-cv-00013-SLG

[Filed February 8, 2021]

_____________________________

STATE OF ALASKA, et al.

)

Plaintiff

)

DAVID BERNHARDT, et al.

)

Defendant

)

_____________________________ )

AMENDED JUDGMENT IN A CIVIL ACTION

(Kenai Rule Challenge Only)

9 JURY VERDICT. This action came before the court

for a trial by jury. The issues have been tried and the

jury has rendered its verdict.

: DECISION BY COURT. This action came to trial or

decision before the Court. The issues have been tried or

determined and a decision has been rendered.

IT IS ORDERED AND ADJUDGED:

THAT this case, with regard to the Kenai Rule

challenge only, is dismissed pursuant to the Alaska

App. 54

National Interest Lands Conservation Act, the

National Wildlife Refuge System Improvement Act,

and the Administrative Procedure Act, and also

pursuant to the National Environmental Protection

Act with respect to the Skilak Wildlife Recreation

Area hunting restriction and the bear baiting

restriction.

FURTHER THAT with respect to the firearms

restriction in the Kenai River and Russian River

corridors, that portion of the Kenai Rule is

remanded to the Fish and Wildlife Service for

further analysis in accordance with the

requirements of the National Environmental

Protection Act.

Pursuant to the Federal Rules of Civil Procedure,

Rule 54(b), the Court expressly determines there is

no just reason for delay in the entry of judgment as

to the Kenai Rule. See Order at Docket 234.

APPROVED:

s/Sharon L. Gleason

Sharon L. Gleason

United States District Judge

Date: February 8, 2021

Brian D. Karth

Clerk of Court

Note: Award of prejudgment interest, costs and

attorney’s fees are governed by D.Ak. LR 54.1, 54.2, and

58.1.

App. 55

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Case No. 3:17-cv-00013-SLG

CONSOLIDATED

Case No. 3:17-cv-00014-SLG

[Filed November 13, 2020]

______________________________________

STATE OF ALASKA,

)

Plaintiff,

)

DAVID L. BERNHARDT, in his official )

capacity as acting Secretary of the

)

U.S. Department of the Interior, et al.,

)

Federal Defendants,

)

and

)

ALASKA WILDLIFE ALLIANCE, et al., )

)

Intervenor-Defendants.

)

______________________________________

SAFARI CLUB INTERNATIONAL,

)

Plaintiff,

)

App. 56

)

DAVID L. BERNHARDT, in his official )

capacity as acting Secretary of the

)

U.S. Department of the Interior, et al.,

)

Federal Defendants,

)

and

)

ALASKA WILDLIFE ALLIANCE, et al., )

)

Intervenor-Defendants.

)

______________________________________ )

ORDER RE MOTIONS FOR SUMMARY

JUDGMENT

This is a consolidated action in which the State of

Alaska and Safari Club International seek invalidation

of portions of the Fish and Wildlife Service’s Kenai

Rule that prohibit certain hunting activities on the

Kenai National Wildlife Refuge.1 The challenged

portions of the Kenai Rule codified restrictions on

hunting within the Skilak Wildlife Recreation Area,

prohibited certain firearms discharges along the Kenai

and Russian rivers, and clarified that hunting brown

bears over bait was not permitted on the Kenai

81 Fed. Reg. 27030; codified at 50 C.F.R. § 36.39.

App. 57

National Wildlife Refuge.2 Briefing on the merits was

completed on August 20, 2020.3 Oral argument was

held on September 25, 2020.4

BACKGROUND

The Kenai National Wildlife Refuge (“Kenai NWR”)

is a 1.92 million-acre refuge located on the Kenai

Peninsula in Southcentral Alaska.5 The refuge was

originally called the Kenai National Moose Range and

was created in 1941 for the purpose of “protecting the

natural breeding and feeding range of the giant Kenai

moose on the Kenai Peninsula, which in this area

presents . . . an unusual opportunity for the study in its

natural environmental of the practical management of

a big game species that has considerable local economic

value.”6

The refuge was expanded and renamed as the Kenai

NWR by Congress in 1980 with the passage of the

Alaska National Interest Lands Conservation Act

See 50 C.F.R. § 36.39(i)(5)–(6); 81 Fed. Reg. 27030; 81 Fed. Reg.

27043–48; FWL013575–80.

Docket 202.

Docket 215.

FWL013562. “FWL” refers to the U.S. Fish and Wildlife Service’s

administrative record, which is filed at Docket 207.

FWL013562 (quoting Exec. Order No. 8979, 6 F.R. 6471 (Dec. 18,

1941)).

App. 58

(“ANILCA”).7 ANILCA also expanded the purposes of

the Kenai NWR, identifying them as follows:

(1) To conserve fish and wildlife populations and

habitats in their natural diversity including, but

not limited to, moose, bears, mountain goats,

Dall sheep, wolves and other furbearers,

salmonoids and other fish, waterfowl and other

migratory and nonmigratory birds;

(2) To fulfill the international treaty obligations

of the United States with respect to fish and

wildlife and their habitats;

(3) To ensure, to the maximum extent

practicable and in a manner consistent with the

purposes set forth in (1), above, water quality

and necessary water quantity within the Refuge;

(4) To provide, in a manner consistent with (1)

and (2), above, opportunities for scientific

research, interpretation, environmental

education, and land management training; and

(5) To provide, in a manner compatible with

these purposes, opportunities for fish and

wildlife-oriented recreation.8

In 1982, the United States Fish and Wildlife Service

(“the Service”) and the State of Alaska (“the State”)

entered into a Master Memorandum of Understanding

Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16 U.S.C.

§ 3101 et. seq.); FWL004688.

Pub. L. No. 96-487 § 303(4)(B).

App. 59

(“MMU”) which “reflects the general policy guidelines

within which the two agencies agree to operate” with

respect to the Kenai NWR.9 The MMU lays out a

cooperative approach under which the Service and the

State agree “[t]o consult with each other when

developing policy and legislation which affect the

attainment of wildlife resource management goals and

objectives or management plans.”10 In the MMU, the

State agreed “[t]o recognize the Service as the agency

with the responsibility . . . on Service lands in Alaska

to conserve fish and wildlife and their habitats and

regulate human use.”11 The MMU also states that “the

taking of fish and wildlife . . . on Service lands in

Alaska is authorized in accordance with applicable

State and Federal law unless State regulations are

found to be incompatible with documented Refuge

goals, objectives, or management plans.”12

ANILCA instructs the United States Secretary of

the Interior (“Secretary”) to “prepare, and from time to

time, revise, a comprehensive conservation plan . . . for

each refuge.”13 Between 1980 and 1985, the Service

worked with the public and the State to develop the

first Comprehensive Conservation Plan (“CCP”) for the

FWL001551.

FWL001553.

FWL001552.

FWL001553–54.

Pub. L. No. 96-487 § 304(g)(1).

App. 60

Kenai NWR.14 The first CCP was completed in 1985.15

It offered broad management guidance and provided

that “[t]he entire refuge would remain open to hunting

and trapping, except for areas where public safety is a

concern” as well as “the Skilak Loop Special

Management Area, where special restrictions on

hunting and trapping will apply.”16 The CCP provided

that the Skilak Loop Special Management Area “would

be managed to provide enhanced opportunities for

wildlife viewing.”17 In 1988, this area was renamed the

Skilak Wildlife Recreation Area (“Skilak WRA”).18

Pursuant to the CCP, the Service created a species

management plan for the Skilak area to provide

“wildlife viewing and interpretation opportunities.”19 In

1987, the Alaska Board of Game (“BOG”) adopted

regulations that had been jointly proposed by the

Service and the Alaska Department of Fish and Game;

the regulations prohibited trapping, allowed taking of

small game by archery, and provided for a moose hunt

by special permit within the Skilak area.20 The Service

FWL000980–82.

FWL014229; FWL000982.

FWL014224.

FWL000982.

FWL013571.

FWL000982.

App. 61

developed public use facilities for the Skilak WRA over

the following years.21

In 1993, the Service issued nationwide refugespecific hunting and fishing regulations.22 A section

titled “General provisions regarding hunting on wildlife

refuges” stated that the “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).”23 The regulations further provided that

“Alaska refuges are opened to hunting, fishing and

trapping pursuant to the Alaska National Interest

Lands Conservation Act.”24

In 1997, Congress passed the National Wildlife

Refuge System Improvement Act (“Improvement

Act”).25 The Improvement Act consolidated all the

various wildlife refuges, wildlife ranges, game ranges,

and other areas for the protection of fish and wildlife

into the National Wildlife Refuge System.26 The system

is administered by the Director of the Fish and Wildlife

Service. A provision in the Improvement Act states that

in the event of a conflict between provisions in the

FWL000982, FWL013571.

58 Fed. Reg. 5064–5100.

58 Fed. Reg. 5065 (codified at 50 C.F.R. § 32.2(h)).

58 Fed. Reg. 5069 (codified at 50 C.F.R. § 32.21).

Codified at 16 U.S.C. §§ 668dd–668ee.

16 U.S.C. § 668dd(a)(1).

App. 62

Improvement Act and ANILCA, “the provision in

[ANILCA] shall prevail.”27

The Improvement Act strives for consistency

between state and federal hunting regulations, stating

that federal regulations “shall be, to the extent

practicable, consistent with State fish and wildlife

laws, regulations, and management plans.”28 The Act

also provides that “compatible wildlife-dependent

recreational uses are the priority general public uses of

the [National Wildlife Refuge] System and shall receive

priority consideration in refuge planning and

management.”29 A “compatible use” is defined as “a

wildlife-dependent recreational use or any other use of

a refuge that, in the sound professional judgment of the

Director [of the Fish and Wildlife Service], will not

materially interfere with or detract from the fulfillment

of the mission of the [National Wildlife Refuge] System

or the purposes of the refuge.”30 The Improvement Act

additionally provides that “when the Secretary [of the

Interior] determines that a proposed wildlife-dependent

recreational use is a compatible use within a refuge,

that activity should be facilitated, subject to such

restrictions or regulations as may be necessary,

Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory

construction note regarding 16 U.S.C. § 668dd with respect to

Alaska).

28 16 U.S.C. § 668dd(m).

16 U.S.C. § 668dd(a)(3)(C).

16 U.S.C. § 668ee(1).

App. 63

reasonable, and appropriate.”31 However, the

Improvement Act also instructs the Director of the Fish

and Wildlife Service not to “initiate or permit a new use

of a refuge or expand, renew, or extend an existing use

of a refuge, unless the Secretary has determined that

the use is a compatible use and that the use is not

inconsistent with public safety.”32

In 2007, the Service issued a Compatibility

Determination (“CD”) pursuant to the Improvement

Act that found black bear baiting for the purposes of

hunting was a compatible use of the Kenai NWR.33

Black bear baiting was permitted by federal regulation

in accordance with state regulations.34 The CD was

limited only to baiting black bears;35 brown bear

baiting in the Game Management Unit that contains

the Kenai NWR was not allowed under state law at

that time.

In 2007, the Service also published a Revised Final

Management Plan for the Skilak WRA.36 The Service

16 U.S.C. § 668dd(a)(3)(D).

16 U.S.C. § 668dd(d)(3)(A)(i).

FWL000071–72.

FWL000066 (“baiting is authorized in accordance with State

regulations on national wildlife refuges in Alaska”) (citing 50

C.F.R. § 32.2(h)).

FWL000069.

FWL000976.

App. 64

did so after completing a draft plan and accompanying

draft environmental assessment (“EA”) in 2006

pursuant to the National Environmental Protection Act

(“NEPA”) that resulted in a Finding of No Significant

Impact.37 Although the Service considered opening the

Skilak WRA to the hunting of small game as well as

lynx, coyote, red fox, and squirrel, that proposal was

ultimately rejected.38 Instead, the final plan

maintained the Skilak WRA as “a special area . . . that

would be managed to increase opportunities for wildlife

viewing, and environmental education and

interpretation.”39 However, the Service did approve a

limited “youth-only” small game firearms hunt.40 That

same year, the BOG adopted State regulations that

were consistent with the Revised Final Management

Plan.41

In 2010, the Service issued an updated CCP for the

Kenai NWR. 42 The Service completed an

Environmental Impact Statement (“EIS”) regarding the

CCP pursuant to NEPA.43 The EIS considered five

FWL001042–59.

FWL001043.

81 Fed. Reg. 27038; FWL013570.

81 Fed. Reg. 27038; FWL001044–55, 013570.

81 Fed. Reg. 27038; FWL013570

FWL001068; Section 304(g) of ANILCA provides that CCPs

should be revised “from time to time.”

81 Fed. Reg. 27033; FWL013565.

App. 65

different alternatives; in each alternative, the Skilak

WRA would be “managed to provide enhanced

opportunities for wildlife viewing, environmental

education, interpretation, and photography.”44

In 2013, the BOG proposed new regulations that

would allow hunting brown bears over registered black

bear baiting stations in the Kenai NWR and open the

Skilak WRA to the hunting of wolves, coyote, and lynx

in late fall and winter.45 In response, the Service sent

a letter to the BOG advocating against these proposed

changes, explaining that it considered “reducing

predator populations in support of intensive

management program objectives” to be “the underlying

reason for the Board’s actions” and that such objectives

“fundamentally differ” from the Service’s mandates.46

The letter also listed regulatory measures the Service

intended to take if the BOG adopted the proposals.

These measures would include restricting “the legal

take of animals over bait to black bears under terms

and conditions of a Special Use Permit” and

promulgating “regulations maintaining existing

restrictions on hunting and trapping in the [Skilak]

WRA.”47

FWL000303.

81 Fed. Reg. 27038–40; FWL013570–72.

FWL002113

FWL002115.

App. 66

The BOG adopted the regulations, which became

effective on July 1, 2013.48 The Service responded by

closing the Skilak WRA to hunting and trapping on

November 10, 2013, just before the State-authorized

late fall and winter hunting season began.49 The

Service also blocked the BOG’s authorization of brown

bear baiting in the Kenai NWR, although the BOG

regulation became effective elsewhere on the Kenai

Peninsula.50

On May 21, 2015, the Service published a proposed

rule, referred to here as the Kenai Rule.51 Among other

provisions, the proposed rule would:

(2) Codify restrictions on hunting and trapping

within the Skilak Wildlife Recreation Area

recently established in accordance with the

procedures set forth at 50 CFR 36.42 (public

participation and closure procedures);

(3) Expand a prohibition on the discharge of

firearms to include areas of intensive public use

along the Kenai and Russian rivers; [and]

(4) Clarify the intent of an existing regulation

addressing hunting over bait.52

81 Fed. Reg. 27038; FWL013570.

78 Fed. Reg. 66061–62.

81 Fed. Reg. 27036–37; FWL013568–69.

80 Fed. Reg. 29277–86; FWL008725–34.

80 Fed. Reg. 29278; FWL008726.

App. 67

Regarding the Skilak WRA, the “proposed rule

would codify the Service’s November 2013 permanent

closure . . . to hunting and trapping,” with exceptions

for the “historical State regulations . . . of hunting of

small game with bow and arrow and falconry, moose

hunting by permit, and youth-only firearm hunting of

small game.”53 The closure was “in response to action

taken by the Alaska Board of Game . . . which opened

the Skilak Wildlife Recreation Area to taking of lynx,

coyote, and wolf within the area under State hunting

regulations.”54 The Service proposed the regulation

because it “determined that this hunting of lynx,

coyote, and wolf negatively impacts meeting objectives

in approved Refuge management plans to provide

enhanced wildlife viewing, environmental education,

and interpretation opportunities in the area.”55

The proposed rule would also “establish a

prohibition on the discharge of firearms within ¼ mile

of the Kenai and Russian rivers (with the exception of

firearms used for dispatching legally trapped animals

and use of shotguns for waterfowl hunting) . . . .”56 This

proposed change was intended “to help ensure

protection of public safety” on “river corridors [that]

receive intensive recreational use for sport fishing from

shorelines and boats during open seasons for salmon

80 Fed. Reg. 29279; FWL008727.

80 Fed. Reg. 29280; FWL008728.

80 Fed. Reg. 29279; FWL008727.

App. 68

and resident fish . . . and, on the upper Kenai River for

river floating, from late spring to freeze-up.”57

With respect to bear baiting, the proposed rule

would “clarify an existing regulation which allows

hunting over bait for the harvest of black bears under

the terms and conditions of a special use permit.”58 The

proposal explained that “[a]ll other hunting over bait is

in effect prohibited on the Refuge,” and that “[t]his

clarification is necessary in light of recent action by the

Alaska Board of Game to allow for the take of brown

bears at registered black bear baiting stations.”59

The Service concluded that it considered the

proposed Kenai Rule to constitute a categorical

exclusion under NEPA pursuant to the “Department of

the Interior policy in part 516 of the Departmental

Manual,” which categorically excludes “[t]he 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 has resulted

in adverse environmental effects.”60 The Service stated

that the rulemaking supported “the management

direction identified through approved Refuge

management plans, including the 2010 Kenai NWR

Revised CCP and the 2007 Kenai NWR Skilak

80 Fed. Reg. 29280; FWL008728.

80 Fed. Reg. 29281; FWL008729 (citing 516 Dept. Man.

8.5(C)(3)).

App. 69

Recreation Area Revised Final Management Plan.”61

The Service referenced the EIS it had prepared for the

2010 CCP and the EA it had prepared for the Skilak

WRA management plan it had completed in October

2006; both documents were prepared after notice and

public comment.62

During the comment period for the proposed Kenai

Rule, the Service received 28 comments from

individuals, organizations including Safari Club

International and the Humane Society the United

States (“Humane Society”), and the State of Alaska.63

The State explained that its “overarching concern with

the proposed regulation package is the limited, or in

many cases, absence of justification provided in the

Notice.”64 The State opposed the Skilak WRA

restrictions on hunting and trapping, maintaining that

“the Service is favoring one wildlife dependent

recreational use (wildlife viewing) over another

(hunting) when both are compatible uses that can be

effectively managed to avoid user conflicts” and that

“no data has been provided to support this continued

closure.”65 The State also opposed the “expansion of the

prohibition [on discharging firearms] for the entire

length of the Kenai River adjacent to refuge lands and

80 Fed. Reg. 29281; FWL008729.

80 Fed. Reg. 29281–82; FWL008729–30.

FWL008912—009165.

FWL008984.

FWL008986.

App. 70

from the Russian River to the Russian River Falls.”66

The State explained that “the Notice does not explain

why discharging firearms for waterfowl and small

game hunting does not pose a safety hazard when the

use of firearms to take big game apparently does.”67

The State also protested the bear baiting proposal.

It maintained that the proposal was not a mere

clarification of existing bear baiting rules because

“[t]he Notice neglects to inform the public that baiting

is allowed on all refuges in Alaska in accordance with

state regulations,” and that “at the time the existing

Kenai Refuge regulation was promulgated, state

regulations only authorized black bear baiting.”68

Hence, the State asserted that “[r]elying on the existing

regulation as justification to prohibit this newly

authorized use is inconsistent with Refuge law,

regulation, and policy.”69 The State’s nine pages of

comments did not reference NEPA.

Safari Club International submitted comments

which opposed expanding the prohibition of firearms

discharges along the Kenai and Russian rivers,

agreeing with the State that “[t]here are no data

provided that document a public safety issue, and there

is no resource basis for the refuge to enact this

FWL008988

FWL008988.

FWL008989 (citing 50 C.F.R. § 32.2(h)).

FWL008989.

App. 71

prohibition.”70 Safari Club International also opposed

the hunting and trapping restrictions in the Skilak

WRA, asserting the Service “provided no data to

demonstrate an impact to wildlife viewing in this area”

and that the “preemptive closures of hunting and

trapping opportunities in favor of wildlife viewing are

unnecessary and inconsistent with refuge management

mandates” in the Improvement Act.71 Safari Club

International also opposed the proposal to continue the

ban on brown bear baiting because “[t]he biological

information the [Service] used to justify prohibiting

this take of brown bear was inaccurate in terms of

comparison to population density in other areas and

relationship of conservative harvests to long-term

sustainability.”72 Safari Club International’s comments

did not reference NEPA.

The Humane Society submitted comments

requesting a supplemental EA or an EIS pursuant to

NEPA that would consider “all the direct, indirect and

cumulative impacts to wildlife from the proposed

changes to the hunting and trapping regulations.”73

On May 5, 2016, the Service published the final

Kenai Rule.74 The Kenai Rule includes all of the

FW00L8928.

FWL008928–29.

FWL008929–30.

FWL010054.

81 Fed. Reg. 27030; 50 C.F.R. § 36.39; FWL013562.

App. 72

relevant portions of the proposed rule: a prohibition on

hunting within the Skilak WRA with exceptions for

moose hunts by special permit, hunting small game by

archery and falconry, and limited youth-only small

game firearms hunt;75 a prohibition on hunting animals

by bait in the Kenai NWR other than black bears by

special permit;76 and a prohibition on discharging

firearms within ¼ mile of the Kenai and Russian rivers

with exceptions for dispatching lawfully trapped game,

using shotguns to hunt waterfowl and small game, and

taking game in defense of life and property.77

As it had done with the proposed rule, the Service

determined that the Kenai Rule constituted a

categorical exclusion under NEPA, because it was

considered “[t]he 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 has resulted in adverse

environmental effects” under the Department of the

Interior departmental manual.78 The Service

additionally determined that the Kenai Rule

constituted a categorical exclusion because the rule is

“technical and procedural in nature, and the

environmental effects are too broad, speculative, or

81 Fed. Reg. 27045; 50 C.F.R. § 36.39(i)(6); FWL013577.

81 Fed. Reg. 27045; 50 C.F.R. § 36.39(i)(5)(ii); FWL013577.

81 Fed. Reg. 27045; 50 C.F.R. § 36.39(i)(5)(i); FWL013577.

81 Fed. Reg. 27043 (citing 516 Dept. Man. 8.5(C)(3)

(www.doi.gov/sites/doi.gov/files/elips/documents/516-dm-8-chapterfinal-7-29-20.pdf)); FWL013575.

App. 73

conjectural to lend themselves to meaningful

analysis.”79 The Service again explained that the Kenai

Rule “supports the Service’s management direction

identified through . . . the 2010 Kenai NWR revised

CCP and the 2007 Kenai NWR Skilak WRA revised

final management plan.”80

In its response to the Humane Society’s comment,

the Service explained its categorical exclusion

determination: “This rulemaking will result in small

incremental changes in public use of the Refuge, both

increasing and decreasing use, but overall will

maintain permitted levels of use and will not continue

a level of use that has resulted in adverse

environmental impacts.”81

In 2016, the Service and the Department of the

Interior also issued a rule amending national wildlife

refuge regulations.82 The rule banned brown bear

baiting in all Alaska refuges.83 The rule also stated:

We define “natural diversity” in regulation based

on the legislative history from ANILCA. Natural

diversity means the existence of all fish, wildlife,

and plant populations within a particular

wildlife refuge system unit in the natural mix

81 Fed. Reg. 27043 (citing 43 C.F.R. § 46.210); FWL013575.

81 Fed. Reg. 27043; FWL013575.

81 Fed. Reg. 27033; FWL013565.

81 Fed. Reg. 52247.

81 Fed. Reg. 52252.

App. 74

and in a healthy condition for the long-term

benefit of current and future generations.

Managing for natural diversity includes avoiding

emphasis of management activities favoring

some species to the detriment of others and

assuring that habitat diversity is maintained

through natural means, avoiding artificial

developments and habitat manipulation

programs whenever possible.84

In 2017, Congress vacated this rule under its authority

in the Congressional Review Act.85 Congress did not

vacate the Kenai Rule.

The State of Alaska and Safari Club International

each filed a complaint in this Court challenging the

Kenai Rule, seeking declaratory relief, injunctive relief,

and vacatur of the rule.86 The cases were consolidated

into this action on January 3, 2018.87 On January 6,

81 Fed. Reg. 52252.

Pub. L. No. 115-20, 131 Stat. 86 (2017); 82 Fed. Reg. 52009.

Docket 1 at 45–46, ¶¶ A-I; Case No. 3:17-cv-00014, Docket 1 at

48–49, ¶¶ 1–11; Case No. 3:17-cv-00026, Docket 1 at 36, ¶¶ A–D.

Plaintiffs also challenged a separate rule issued by the Service that

was invalidated by Presidential approval of a joint resolution

during the course of this litigation. Docket 55. Plaintiffs

additionally challenge a rule propagated by the National Park

Service that is not at issue in the instant cross-motions for

summary judgment.

Docket 124. A separate case brought by Alaska Professional

Hunters Association, Sportsmen’s Alliance Foundation, Joey

Klutsch, and Gilbert Huntington had been consolidated into this

action but was dismissed as moot on July 8, 2020. Docket 198.

App. 75

2020, the State and Safari Club International filed

their motion for summary judgment.88 Federal

Defendants filed a cross-motion for summary judgment

on March 9, 2020.89 Alaska Wildlife Alliance and

several other environmental organizations moved to

intervene as defendants on February 8, 2017.90 The

motion was granted on May 3, 2017.91 The IntervenorDefendants filed a cross-motion for summary judgment

on March 16, 2020.92

Docket 170.

Docket 177. The named Federal Defendants are David

Bernhardt, in his official capacity as U.S. Secretary of the Interior;

Mitch Ellis, in his official capacity as Chief of Refuges for the

Alaska Region of the U.S. Fish and Wildlife Service; Gregory

Siekaniec, in his official capacity as Alaska Regional Director of

the U.S. Fish and Wildlife Service; Aurelia Skipworth, in her

official capacity as Director of U.S. Fish and Wildlife Service; Joel

Hard, in his official capacity as acting Alaska Regional Director of

the National Park Service; Margaret Everson, in her official

capacity as acting Director of the National Park Service; U.S. Fish

and Wildlife Service; National Park Service; and U.S. Department

of the Interior.

Docket 6. Intervenor-Defendants are Alaska Wildlife Alliance;

Alaskans For Wildlife; Friends of Alaska Wildlife Refuges; Denali

Citizens Council; Copper County Alliance; Kachemak Bay

Conservation Society; Defenders of Wildlife; National Parks

Conservation Association; National Wildlife Refuge Association;

Northern Alaska Environmental Association; The Wilderness

Society; Wilderness Watch; The Sierra Club; Center for Biological

Diversity; and The Humane Society of the United States.

Docket 54.

Docket 184.

App. 76

JURISDICTION

The Court has subject matter jurisdiction pursuant

to 28 U.S.C. § 1331, which “confer[s] jurisdiction on

federal courts to review agency action, regardless of

whether the Administrative Procedure Act of its own

force may serve as a jurisdictional predicate.”93

LEGAL STANDARD

Plaintiffs bring their claims pursuant to the

Administrative Procedure Act.94 Under that statute, a

reviewing court shall not set aside an agency’s decision

unless it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”95

Agency action is arbitrary and capricious if it

relie[s] on factors which Congress has not

intended it to consider, entirely fail[s] to

consider an important aspect of the problem,

offer[s] an explanation for its decision that runs

counter to the evidence before the agency, or is

so implausible that it c[an]not be ascribed to a

difference in view or the product of agency

expertise.96

Califano v. Sanders, 430 U.S. 99, 105 (1977).

Docket 60 at 46, ¶ C.

5 U.S.C. § 706(2)(A).

Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1034 (9th

Cir. 2019) (alterations in original) (quoting Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)).

App. 77

A court’s review of whether an agency action is

arbitrary and capricious should be “searching and

careful,” but “narrow,” as a court may not substitute its

judgment for that of the administrative agency.97

Courts will generally “uphold agency decisions so long

as the agencies have ‘considered the relevant factors

and articulated a rational connection between the

factors found and the choices made.’”98 “Agency action

is ‘not in accordance with the law’ when it is in conflict

with the language of the statute relied upon by the

agency.”99 “Whether agency action is ‘not in accordance

with law’ is a question of statutory interpretation,

rather than an assessment of reasonableness in the

instant case.”100

DISCUSSION

I. National Environmental Protection Act

The National Environmental Protection Act

(“NEPA”) established the Council on Environmental

Quality (“CEQ”) and created procedures that require

“that federal agencies take a ‘hard look’ at the

Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416

(1971)).

Protect Our Cmtys. Found., 939 F.3d at 1034 (quoting City of

Sausalito v. O’Neill, 386 F.3d 1186, 1206 (9th Cir. 2004)).

City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007).

100

Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010) (citing Nw.

Envtl. Advocates v. U.S. Envtl. Prot. Agency, 537 F.3d 1006, 1014

(9th Cir. 2008)).

App. 78

environmental consequences of their actions.”101 NEPA

requires that agencies prepare an environmental

impact statement (“EIS”) for all “major Federal actions

significantly affecting the quality of the human

environment.”102 “‘Human environment,’ in turn, is

defined in NEPA’s implementing regulations as ‘the

natural and physical environment and the relationship

of people with that environment.”103 When an action “is

not likely to have significant effects or the significance

of the effects is unknown,” the CEQ’s regulations

provide that the “agency shall prepare an

environmental assessment for [the] proposed action.”104

An EA must “provide sufficient evidence and analysis

for determining whether to prepare an environmental

impact statement or a finding of no significant

impact.”105

“For efficiency,” the CEQ also instructs agencies to

“identify . . . categories of actions that normally do not

have a significant effect on the human environment,

and therefore do not require preparation of an

101

California v. Norton, 311 F.3d 1162, 1175 (9th Cir. 2002)

(quoting Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000)); 42

U.S.C. §§ 4321–4370m-12.

102

42 U.S.C. § 4332(C). Accord Metcalf, 214 F.3d at 1142.

103

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) (quoting 40 C.F.R.

§ 1508.14).

104

40 C.F.R. § 1501.5(a).

105

40 C.F.R. § 1501.5(c)(1).

App. 79

environmental assessment or environmental impact

statement.”106 Such actions are termed “categorical

exclusions.” “However, an agency adopting a

categorical exclusion must ‘provide for extraordinary

circumstances in which a normally excluded action may

have a significant environmental effect,’” which

triggers the requirement of preparation of an EIS or an

EA.107

“When an agency decides to proceed with an action

in the absence of an EA or EIS, the agency must

adequately explain its decision” and “cannot avoid its

statutory responsibility under NEPA merely by

asserting than an activity it wishes to pursue will have

an insignificant effect on the environment.”108 Instead,

it “must supply a convincing statement of reasons why

potential effects are insignificant.”109 In reviewing

whether an agency’s action is arbitrary or capricious, a

court must look to “whether the decision was based on

a consideration of the relevant factors and whether

there has been clear error of judgment.”110 Agency

106

40 C.F.R. § 1501.4(a).

107

Norton, 311 F.3d at 1168 (quoting 40 C.F.R. § 1508.4).

108

Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 859

(9th Cir. 1999) (quoting Jones v. Gordon, 792 F.2d 821, 828 (9th

Cir. 1986)).

109

Id. (quoting The Steamboaters v. FERC, 759 F.2d 1382, 1393

(9th Cir. 1985)).

110

Id. (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378

(1989)).

App. 80

determinations based on consideration of the proper

factors are entitled to deference.111

a. Applicability

As a threshold matter, the Court must determine

whether NEPA procedures apply to the challenged

aspects of the Kenai Rule. Federal Defendants

maintain that NEPA does not apply to the Skilak WRA

closure or the brown bear baiting rule because each of

those provisions “simply maintain the environmental

status quo on the Kenai refuge that has been in place

for three decades.”112 Plaintiffs respond by asserting

that “NEPA procedures are required here . . . because

the Kenai Rule reduces the effectiveness of State

wildlife management by preempting BOG authorized

harvest opportunities and methods of take and

restricting the use of firearms.”113 Plaintiffs maintain

this preemption of “State wildlife management will

have a demonstrable impact on the physical

environment,” and thus, NEPA procedures apply.114

In Kootenai Tribe of Idaho v. Veneman, the Ninth

Circuit considered whether NEPA applied to the Forest

Service’s adoption of a Roadless Rule on national forest

lands.115 The Court recognized its prior decisions in

111

Id.

112

Docket 178 at 48.

113

Docket 189 at 37–38.

114

Docket 189 at 38.

115

313 F.3d at 1113–15.

App. 81

which it had held that NEPA procedures did not apply

when the agency action “maintain[ed] the

environmental status quo.”116 But the Court

determined that “the reduction in human intervention

that would result from the Roadless Rule actually does

alter the environmental status quo” such that NEPA

compliance was required.117 “By altering how the Forest

Service manages inventoried roadless areas, the

Roadless Rule will have a demonstrable impact on the

physical environment.”118

California ex rel. Lockyer v. U.S. Department of

Agriculture involved the same Roadless Rule.119 The

agency replaced the Roadless Rule with the State

Petitions Rule, which allowed states a more active

forest management role. The agency maintained the

State Petitions Rule was a procedural rule and fell

within the categorical exclusion for “Rules . . . to

establish . . . administrative procedures,” such that no

116

Id. at 1114 (citing Burbank Anti–Noise Grp. v. Goldschmidt, 623

F.2d 115, 116–17 (9th Cir.1981)) (NEPA does not apply when

agency financed purchase of an airport that was already built).

Accord Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343–44 (9th

Cir. 1995) (NEPA does not apply when agency transferred title to

wetlands already used for grazing); Bicycle Trails Council of Marin

v. Babbitt, 82 F.3d 1445, 1448–49 (9th Cir. 1996) (closure of bicycle

trails did not trigger need for an EIS).

117

Kootenai Tribe of Idaho v. Veneman, 313 F.3d at 1115.

118

Id.

119

459 F. Supp. 2d 874 (N.D. Cal. 2006).

App. 82

EIS was necessary.120 The State of California and

several environmental organizations maintained that

an EIS was required. The District Court for the

Northern District of California agreed, reasoning that

the State Petitions Rule “substantively repealed the

Roadless Rule . . . eliminated the uniform nationwide

protections for roadless areas, . . . and reinstated the

less protective, varied forest plans . . . .”121 Because

“eliminating a major program triggers the obligation to

perform environmental analysis,” the categorical

exclusion did not apply.122

In California v. Bureau of Land Management, the

District Court for the Northern District of California

considered whether NEPA applied to a decision by the

Bureau of Land Management (“BLM”) to repeal a rule

regulating hydraulic fracking.123 BLM had issued the

final rule, but the rule had never gone into effect due to

a preliminary injunction.124 The plaintiffs maintained

that because BLM had “previously reported

environmental benefits” the rule would cause, “any

action to rescind these benefits required a ‘hard look’

and an EIS, because it could significantly affect the

120

Id. at 894 (emphasis in original).

121

Id. at 898.

122

Id. (citing Andrus v. Sierra Club, 442 U.S. 347, 363 n.22 (1979)).

123

Case No. 18-cv-00521-HSG, ___ F. Supp. 3d ___, 2020 WL

1492708 (N.D. Cal. Mar. 27, 2020).

124

Id. at *1–2.

App. 83

environment.”125 BLM maintained “that it was not

required to conduct a NEPA analysis because the

Repeal rescinded a rule that had never gone into

effect.”126 The district court agreed with BLM,

reasoning that “[b]ecause enactment of the 2015 Rule

was enjoined before it ever went into effect, its

‘benefits’ and ‘protections’ remained hypothetical and

unrealized at the time the Repeal was promulgated,”

and therefore, “the environmental status quo never

changed.”127 The district court distinguished Lockyer on

the ground that the Roadless Rule in Lockyer had been

legally in effect for seven months before it was

enjoined, whereas the fracking rule had never gone into

effect.128

Similarly, in National Wildlife Federation v. Espy

the agency took title to a ranch subject to a mortgage

from a party who used it for grazing.129 The agency

later quitclaimed title to the bank who owned the

mortgage. The bank in turn sold the ranch to a third

party who also used the land for grazing. Even though

there was a change in ownership, the Ninth Circuit

125

Id. at *14.

126

Id.

127

Id. at *15.

128

Id.

129

Nat’l Wildlife Fed. v. Espy, 45 F.3d 1337 (9th Cir. 1995).

App. 84

held the environmental status quo was unchanged

because the activities on the land were the same.130

In the instant case, the Skilak WRA hunting

restrictions and the brown bear baiting prohibition

maintained the exact same effects on the human

environment that had been in place for years. Unlike

the agency actions in Kootenai Tribe and Lockyer, the

Skilak WRA hunting restrictions and the bear baiting

rule did not result in a “reduction in human

intervention that would . . . alter the environmental

status quo” nor the “eliminat[ion of] a major program

. . . .” Rather, with respect to those two components of

the Kenai Rule, this case is akin to both California v.

BLM and National Wildlife Federation v. Espy in that

these aspects of the Kenai Rule had no effect on the

human environment.

Plaintiffs’ contention that preemption of State

regulations “reduces the effectiveness of State wildlife

management” and therefore, has “a demonstrable

impact on the physical environment” is not supported

by the case law.131 As the cases discussed above

demonstrate, in order for an action to affect the human

environment, it must affect the environment on the

ground. Plaintiffs have not pointed to any case that

requires an EA or an EIS based solely on a change in

who is enforcing the rules when the environmental

status quo remains unchanged. For the foregoing

reasons, NEPA does not apply to either the Skilak

130

Id. at 1343–44.

131

Docket 189 at 37–38.

App. 85

WRA restrictions or the brown bear baiting prohibition

portions of the Kenai Rule.

However, the foregoing analysis does not apply to

the portion of the Kenai Rule that restricts firearm

discharges along the Kenai and Russian rivers, which

was not previously in effect under either Federal or

State law and is discussed below.

b. Categorical Exclusions

Plaintiffs challenge the Service’s reliance on

categorical exclusions. Federal Defendants emphasize

that during the comment period, Plaintiffs did not

challenge the Service’s determination that the Kenai

Rule fell within a categorical exclusion.132

“Persons challenging an agency’s compliance with

NEPA ‘must structure their participation so that it . . .

alerts the agency to the [persons’] position and

contentions,’ in order to allow the agency to give the

issue meaningful consideration.”133 However, the Ninth

Circuit “has declined to adopt ‘a broad rule which

would require participation in agency proceedings as a

condition precedent to seeking judicial review of an

132

133

Docket 178 at 49–50.

Dept. of Trans. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (quoting

Vt. Yankee Nuclear Power Corp. v. Nat’l Res. Def. Council, Inc., 435

U.S. 519, 553 (1978)) (holding that parties forfeited objection that

EA failed to consider proposed alternatives by not identifying

alternatives during EA’s public comment period).

App. 86

agency decision.’”134 Instead, it “has drawn a distinction

between situations in which NEPA plaintiffs submitted

comments that did not alert the agency to their

concerns or failed to participate when the agency

looked into their concerns and situations in which

plaintiffs allege procedural violations of NEPA.”135

However, “the agency bears the primary responsibility

to ensure that it complies with NEPA, and an EA’s or

an EIS’ flaws might be so obvious that there is no need

for a commentator to point them out specifically in

order to preserve its ability to challenge a proposed

action.”136 A flaw is “so obvious” that it does not result

in waiver “where the agency had independent

knowledge of the issues that concerned Plaintiffs.”137

Federal Defendants contend that Plaintiffs waived

their NEPA challenges by not raising them in their

comments on the proposed Kenai Rule.138 They assert

that neither Plaintiffs “nor any other commenter said

134

‘Ilio’ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir.

2006) (quoting Kunaknana v. Clark, 742 F.2d 1145, 1148 (9th Cir.

1984)).

135

Id.

136

Dept. of Trans. v. Pub. Citizen, 541 U.S. at 765.

137

Ilio’ulaokalani, 464 F.3d at 1092 (citing Friends of Clearwater

v. Dombeck, 222 F.3d 552, 558–59 (9th Cir. 2000)) (holding

plaintiffs did not waive objection by failing to raise it to agency

where “the record [was] replete with evidence that the Army

recognized the specific shortfall of the PEIS raised by Plaintiffs”)).

138

Docket 178 at 49–50.

App. 87

anything about categorical exclusions or extraordinary

circumstances in their comments on the proposed

Kenai Rule.”139 Because “Plaintiffs’ NEPA arguments

are new objections that were not presented in

comments to the agency,” Federal Defendants maintain

that they “may not form a basis for reversal of an

agency decision.”140

Plaintiffs respond by asserting that their challenge

to the Service’s “improper reliance on categorical

exclusions to avoid conducting any environmental

analysis” is a “procedural claim,” and thus, they “had

no obligation to preserve their NEPA-based procedural

claim in the rulemaking process via comments.”141

Determining whether a NEPA claim has been

waived based on a failure to raise the issue before the

agency is not a particularly clear inquiry. Much of the

case law in this area involves allegations that an

agency failed to consider a specific alternative action or

failed to examine certain scientific considerations in an

EA or an EIS; these objections are usually deemed

waivable on appeal unless first raised to the agency.142

139

Docket 178 at 50.

140

Docket 178 at 51 (quoting Havasupai Tribe v. Robertson, 943

F.2d 32, 34 (9th Cir. 1991)).

141

Docket 189 at 38 (emphasis in original) (citing ‘Ilio’ulaokalani,

464 F.3d at 1091–92).

142

See, e.g., Vt. Yankee Nuclear Power Corp., 465 U.S. 519, 553

(`978) (objections to EIS were not preserved where plaintiffs

objected to the draft EIS and “the agency continually invited

further clarification” but plaintiffs “declined to participate” in

App. 88

On the other hand, the Ninth Circuit has cited

Northwest Environmental Defense Center v. Bonneville

Power Administration143 as an example of a nonwaivable claim, although it involved a different

statute.144 The plaintiffs in Bonneville Power alleged a

“procedural violation of a statute that governs the

public comment process.”145 The Ninth Circuit

determined that in contrast to “a specific factual

contention regarding the substantive content of an

EIS,” the agency had “a duty to comply with public

participation processes provided for in the Northwest

Power Act regardless of whether participants complain

of violations.”146

subsequent fact-finding related to their objections); Public Citizen,

541 U.S. at 764–65 (plaintiffs “forfeited any objection to the EA on

the ground that it failed adequately to discuss potential

alternatives” where they did not identify any such alternatives in

their comments); Havasupai Tribe v. Robertson, 943 F.2d 32, 34

(9th Cir. 1991) (holding that where plaintiff did not raise claim

that EIS impermissibly failed to consider effects on groundwater

before agency, “such belatedly raised issues may not form a basis

for reversal of an agency decision”).

143

117 F.3d 1520 (9th Cir. 1997).

144

‘Ilio’ulaokalani, 464 F.3d at 1092 (“Although the Bonneville

Power case dealt with the Northwest Power Act, that act is

analogous to NEPA in that it ‘governs the public comment

process.’”).

145

146

Bonneville Power, 117 F.3d at 1535

Id. (citing Citizens for Clean Air v. EPA, 959 F.2d 839, 846–47

(9th Cir. 1992)).

App. 89

Plaintiffs cite to United States v. Coalition for

Buzzards Bay; there, the First Circuit held that a

challenge to an agency’s application of a categorical

exclusion to its decision to eliminate tugboat escorts

following an oil spill was “functional” and hence not

waived even though the issue had not been raised to

the agency.147 The First Circuit distinguished its case

from Public Citizen where “the dispute was one about

the substance of what evidence the agency should have

considered” in its environmental analysis.148 In

Buzzards Bay, the agency’s reliance on a categorical

exclusion “permitted it to avoid any environmental

analysis.”149 Defendants argue Buzzards Bay is

distinguishable because Plaintiffs’ “NEPA claim is not

‘so obvious’ that they were relieved of their obligation

to present it to the agency,” whereas the NEPA claim

in Buzzards Bay implicated a fear of environmental

harm that was “not implausible.”150 However, Buzzards

Bay was not decided on the “so obvious” exception, but

instead seems to suggest that the First Circuit

considers all objections to the use of categorical

exclusions “functional” and thus non-waivable.

On the other hand, in Alliance for The Wild Rockies

v. Tidwell, the District Court for the District of

Montana held that the plaintiffs’ objection to the

agency’s reliance on a categorical exclusion was waived

147

644 F.3d 26, 35 (1st Cir. 2011).

148

Id.

149

Id. (emphasis in original).

150

Docket 201 at 32–33 (quoting Buzzards Bay, 644 F.3d at 36).

App. 90

when the plaintiffs failed to challenge the agency’s “no

extraordinary circumstances” determination at the

agency level.151 The plaintiffs asserted that the agency’s

no extraordinary circumstances finding was marred by

an inadequate soil analysis of the watershed at issue;

they had not raised their concern during the NEPA

comment period.152 The district court determined that

the plaintiffs “‘had some obligation to raise these issues

during the comment process,’” and “allowing the

plaintiff[s] to raise the issue on appeal places the

agency at an unfair disadvantage.”153

The Court need not resolve the waiver issue here

because even if Plaintiffs’ objection to the categorical

exclusion should have been raised at the agency level,

“the agency bears the primary responsibility to ensure

that it complies with NEPA,” and the Service’s failure

to “adequately explain its decision” is “so obvious that

there is no need for a commentator to point [it] out

specifically in order to preserve its ability to challenge”

it.154 The Ninth Circuit has been clear that an “agency

cannot avoid its statutory responsibilities under NEPA

151

623 F. Supp. 2d 1198, 1206 (D. Mont. 2009) (quoting Havasupai,

943 F.2d at 34).

152

Id. at 1205.

153

Id. at 1206 (quoting Havasupai, 943 F.2d at 34).

154

Ilio’ulaukalani, 464 F.3d at 1092. See also Barnes v. U.S. Dep’t

of Transp., 655 F.3d 1124, 1134–35 (9th Cir. 2011) (holding that

agencies’ failure to discuss environmental impact of proposed

action “is a flaw ‘so obvious’ that there was no need for petitioners

to point it out specifically in order to preserve their ability to

challenge the EA on this ground”).

App. 91

merely by asserting that an activity it wishes to pursue

will have an insignificant effect on the environment”

such that the Service should have independent

knowledge of this requirement.155 Rather than explain

how the restriction on firearm discharges along the

rivers is “technical and procedural in nature,” why the

“environmental effects are too broad, speculative, or

conjectural to lend themselves to meaningful analysis,”

or how it “maintain[s] essentially the permitted level of

use,”156 the Service merely “restated the exclusion[s]”

and “did not give sufficient reasons for its decision.”157

Reciting the text of a categorical exclusion without

elaboration or explanation does not constitute the

required “convincing statement of reasons” and does

not allow the Court to determine “whether the decision

was based on a consideration of the relevant factors

and whether there has been a clear error of

judgment.”158

c. Extraordinary Circumstances

The Service also “did not discuss whether an

exception to the categorical exclusion[s]” based on

extraordinary circumstances applied to the firearm

discharge restriction.159 Plaintiffs point to the agency’s

155

Alaska Ctr. for the Env’t., 189 F.3d at 859.

156

81 Fed. Reg. 27043, FWL013575.

157

Alaska Ctr. for the Env’t, 189 F.3d at 859.

158

Id. (internal quotations omitted).

159

Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986) (holding that

agency unreasonably determined not to prepare EIS where it

App. 92

regulation that identifies as an extraordinary

circumstance “individual actions . . . that [h]ave highly

controversial environmental effects or involve

unresolved conflicts concerning alternative uses of

available resources” and maintain that the Kenai Rule

may meet this criteria.160 The Service itself recognized

the possibility of public controversy in its outreach plan

for the proposed rule, stating there that the Kenai Rule

was “expected to be moderately controversial as the

State of Alaska and some affected user groups will

likely oppose some aspects of the rule.”161 Federal

Defendants point to this statement as evidence that the

Service considered the possibility of public controversy

and so any failure to document its analysis in the

Kenai Rule is harmless.162 But the Kenai Rule itself

“failed to explain adequately its decision not to prepare an

environmental impact statement” and failed to discuss whether an

exception applied).

160

Docket 190 at 45 (quoting 43 C.F.R. § 46.215(c)).

161

FWL004690. Federal Defendants also point to an e-mail which

notes the “quiet roll-out” of the proposed rule. See FWL008749

(copy of e-mail). It is not at all clear that the e-mail is referring to

public controversy regarding the substance of the rule as opposed

to a lack of surprise at the proposal because it explains that the

quietness is assumed to be due to “the thorough outreach Refuges

did to inform all interested parties.” In any event, that the Service

received numerous comments from various parties contradicts the

implication that the proposal did not draw much controversy.

162

Docket 178 at 53 (citing Motor Vehicles Mfrs. Ass’n v. State

Farm Mut., 463 U.S. 29, 43 (1983) (“We will, however, uphold a

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

reasonable be discerned.”) (internal quotation omitted)).

App. 93

does not contain the words “public controversy” or

“extraordinary circumstances.” Such an omission

violates the Service’s statutory duty to adequately

explain its decision and is not harmless because it is

not apparent from the single statement in the outreach

plan that the Service conducted a thorough analysis of

the issue.

Federal Defendants also assert that any error in the

Service’s NEPA procedures is harmless because the

record shows on its face that no public controversy

exists. They contend that at most the comments show

general opposition to the firearm discharge restrictions,

but that “[c]ontroversy does not refer to the existence

of opposition to a use” and instead is evidenced by a

“substantial dispute . . . as to [its] size, nature, or

effect.”163 However, comments received by the Service

raised questions about how the rule would affect

hunting opportunities and pointed out that the “river

corridor firearm restriction[]” was “not previously

evaluated in the CCP.”164 These comments are

sufficient to raise the possibility of public controversy.

“When an agency decides to proceed with an action in

the absence of an EA or EIS, the agency must

adequately explain its decision.”165 Here, the Kenai

Rule is silent on whether extraordinary circumstances

apply.

163

Docket 178 at 54 (quoting Bonneville Power, 117 F.3d at 1536).

164

FWL008986.

165

Alaska Ctr. for the Envt., 189 F.3d at 859 (quoting Jones v.

Gordon, 792 F.2d 821, 828 (9th Cir. 1986)).

App. 94

For the foregoing reasons, remand to the agency is

warranted with respect to the Kenai and Russian

rivers firearms restriction so that the agency may

“provide a reasoned explanation for its reliance on the

categorical exclusion[s], including an explanation of

why the exceptions do not apply” or provide a reasoned

explanation of whatever course it elects to pursue.166

II.

Alaska

National

Conservation Act

Interest Lands

The parties dispute the correct interpretation and

interplay between several sections of ANILCA. Section

304(a) requires that “[e]ach refuge shall be

administered by the Secretary of the Interior, subject

to valid existing rights, in accordance with the laws

governing the administration of units of the National

Wildlife Refuge System, and this Act.” Section 304(g)(1)

instructs the Secretary to prepare CCPs for each

national wildlife refuge. These plans “shall . . .

designate areas within the refuge according to their

respective resources” and “specify the uses within each

such area which may be compatible with the major

purposes of the refuge.”167 Section 1314(a) states that

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

166

California v. Norton, 311 F.3d 1162, 1178 (9th Cir. 2002); see

also Jones, 792 F.2d at 829 (“We emphasize, however, that we

disagree with the district court’s conclusion that the Service must

prepare [an EIS] . . . Rather, the Service must consider the

requirements of NEPA and regulations thereunder, and must

provide a reasoned explanation of whatever course it elects to

pursue.”).

167

Pub. L. No. 96-487 § 304(g)(3)(A)(i), (iii).

App. 95

the responsibility and authority of the State of Alaska

for management of fish and wildlife on the public lands

except as may be provided in title VIII of this Act.”168

Section 1314(b) states that “[e]xcept as specifically

provided otherwise by this Act, nothing in this Act is

intended to enlarge or diminish the authority of the

Secretary over the management of the public lands.”169

Section 1314(c) prescribes that “[t]he taking of fish and

wildlife in all conservation system units . . . shall be

carried out in accordance with the provisions of this Act

and other applicable State and Federal law.”170

Plaintiffs assert that under § 1314(a), “the State has

authority for management of fish and wildlife,

including methods and means of hunting.”171 Thus,

Plaintiffs maintain that “[t]he Kenai Rule violates

ANILCA because the [Service] tried to take over the

168

16 U.S.C. § 3202(a).

169

16 U.S.C. § 3202(b).

170

16 U.S.C. § 3202(c).

171

Docket 189 at 49. In their opening brief, Plaintiffs also assert

that the saving clause at § 815, 16 U.S.C. § 3202(a), prohibits the

Service from regulating hunting for any reason other than

conservation. Docket 171 at 47–49. Section 815 provides that

“[n]othing in this title shall be construed as . . . authorizing a

restriction on the taking of fish and wildlife for nonsubsistence

uses on the public lands . . . unless necessary for the conservation

of healthy populations of fish and wildlife.” However, “this title”

refers to Title VIII which governs subsistence uses, whereas CCPs

are governed by Title III, and thus, § 815 does not apply here. At

oral argument, Plaintiffs agreed § 815 “is not applicable here.”

Docket 218.

App. 96

State’s role in managing wildlife on public lands in

Alaska.”172 They urge that neither § 304(a) or § 304(g)

override “the division of authority in § 1314.”173

Plaintiffs additionally contend that the Service

“misconstrued the Kenai NWR’s purposes to justify the

prohibition of hunting on the Skilak WRA and along

the Kenai and Russian rivers,” which created “a false

conflict between environmental education, hunting,

and other wildlife-dependent uses where no actual

conflict exists.” 174

Federal Defendants respond that the Kenai Rule is

in accordance with ANILCA. Citing § 304(g), they

assert that “Title III of ANILCA authorizes the

Secretary to accommodate incompatible refuge

purposes by specifying different areas of a refuge for

different purposes.”175 Rather than giving the State

plenary authority over wildlife management on federal

lands, “ANILCA maintains the balance of authority

whereby the Service only permits State management of

wildlife to the extent it does not conflict with federal

management priorities.”176 Intervenor-Defendants add

that rather than “granting the State plenary authority

over wildlife on federal lands,” § 1314 merely “reflect[s]

172

Docket 171 at 47.

173

Docket 189 at 50.

174

Docket 189 at 53.

175

Docket 178 at 33.

176

Docket 202 at 8.

App. 97

Congress’s intent for ‘ordinary principles of conflict

preemption to apply.’”177

The Supremacy Clause establishes that “the Law of

the United States . . . shall be the supreme Law of the

Land . . . .”178 The parties do not dispute that Congress

may, if it chooses, preempt State law regarding the

regulation of fish and wildlife within the Kenai

NWR.179 Instead, the question is to what extent

Congress in enacting ANILCA intended to preempt the

State’s wildlife management jurisdiction over federal

lands.

“Congress may expressly preempt state law by

enacting a clear statement to that effect.”180 However,

“Congress may also preempt state law implicitly.”181

The task of determining whether Congress intended to

preempt state law in the absence of an expressly stated

177

Docket 185 at 19–20 (quoting Nat’l Audubon Soc’y, Inc. v. Davis,

307 F.3d 835, 854 (9th Cir. 2002)).

178

U.S. Const. art. VI, cl. 2.

179

The Property Clause of the Constitution empowers Congress “to

dispose of and make all needful Rules and Regulations respecting

the Territory or other Property belonging to the United States.”

U.S. Const. art. IV, § 3, cl. 2. “[T]he ‘complete power’ that Congress

has over public lands necessarily includes the power to regulate

and protect the wildlife living there.” Kleppe v. New Mexico, 426

U.S. 529, 540–41 (1976).

180

In re Volkswagen “Clean Diesel” Mktg., Sales Practices, and

Prods. Liab. Litigation, 959 F.3d 1201, 1211 (9th Cir. 2020) (citing

Kansas v. Garcia, 140 S. Ct. 791, 801 (2020)).

181

Id.

App. 98

intent to do so is “guided by two cornerstones of . . .

pre-emption jurisprudence.” 182 “First, ‘the purpose of

Congress is the ultimate touchstone in every preemption case.’”183 “Second, “[i]n all pre-emption cases,

and particularly in those in which Congress has

‘legislated . . . in a field which the States have

traditionally occupied,’ . . . we ‘start with the

assumption that the historic police powers of the States

were not to be superseded by the Federal Act unless

that was the clear and manifest purpose of

Congress.’”184

The Supreme Court has identified two

circumstances in which “Congress’s implicit intent to

preempt state law clears that high threshold.”185 The

first circumstance occurs “when federal law occupies a

field of regulation so comprehensively that it has left no

room for supplementary state legislation . . . .”186 The

second circumstance occurs “when a state law actually

conflicts with federal law, either because compliance

with both state and federal law is impossible, or

because the state law stands as an obstacle to the

accomplishment and execution of the full purposes and

182

Wyeth v. Levine, 555 U.S. 555, 565 (2009).

183

Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).

184

Id. (quoting Lohr, 518 U.S. at 485) (alternations in original).

185

In re Volkswagen, 959 F.3d at 1212.

186

Id. (quoting Murphy v. Nat’l; Collegiate Athletic Ass’n, 138 S. Ct.

1461, 1480 (2018)) (internal quotations omitted).

App. 99

objectives of Congress . . . .”187 While “a saving clause

raises the inference that Congress did not intend to

preempt state law,” a court “may not interpret a saving

clause as preserving a state law that would so conflict

and interfere with a federal enactment that it would

defeat the federal law’s purpose or essentially nullify

it . . . .”188

In National Audubon Society v. Davis,189 the Ninth

Circuit considered a saving clause in the National

Wildlife Refuge System Improvement Act similar to

§ 1314 of ANILCA, which reads:

Nothing in this Act shall be construed as

affecting the authority, jurisdiction, or

responsibility of the several States to manage,

control, or regulate fish and resident wildlife

under State law or regulations in any area

within the System. Regulations permitting

hunting or fishing of fish and resident wildlife

within the System shall be, to the extent

practicable, consistent with State fish and

wildlife laws, regulations, and management

plans.190

The plaintiffs challenged a leg-trap ban adopted by

California voters. The district court held that the leg187

Id. (internal quotations and citations omitted).

188

Id. at 1213–14.

189

307 F.3d 835 (9th Cir. 2002), opinion amended on denial of

reh’g, 312 F.3d 416 (9th Cir. 2002).

190

16 U.S.C. § 668dd(m).

App. 100

trap ban was preempted by the Improvement Act

insofar as the trapping occurred on national wildlife

refuges (“NWR”). On appeal, the State of California

urged reversal, citing the first sentence of the saving

clause. But the Ninth Circuit affirmed, holding that the

first sentence of the saving clause “was not meant to

eviscerate the primacy of federal authority over NWR

management.”191 Accordingly, the Court held that the

Improvement Act preempts California’s “regulation of

federal trapping on NWRs in California because the

ban on leghold traps conflicts with [the Service’s]

statutory management authority on those federal

reserves.”192 The Ninth Circuit noted its agreement

with the Tenth Circuit’s opinion in Wyoming v. United

States, which offers a more extended analysis of the

Improvement Act provision.193

In Wyoming, the State of Wyoming challenged the

Service’s refusal to allow the State to vaccinate elk on

the National Elk Range (“NER”).194 Citing to the first

sentence of the Improvement Act’s saving clause, the

State argued that the Improvement Act “reserves to the

State the unencumbered right to manage wildlife” on

the NER.”195 The Tenth Circuit began with the

“assumption . . . that the [Improvement Act] was not

191

Audubon Soc’y, 307 F.3d at 854.

192

Id.

193

279 F.3d 1214, 1230–35 (10th Cir. 2002).

194

Id. at 1221–22.

195

Id. at 1227–28.

App. 101

meant to supercede the State of Wyoming’s historical

police powers to manage wildlife on federal lands

within its borders ‘unless that was the clear and

manifest purpose of Congress.’”196 Nonetheless, while

“[t]he first sentence of the [Improvement Act’s] saving

clause, viewed in isolation, seems to support our

assumption that . . . the State retains the absolute

right to manage wildlife on the [National Elk Range],”

the court determined that “[s]uch an interpretation of

the saving clause . . . simply is not feasible in light of

established rules of construction requiring us to

consider the [Improvement Act] in its entirety, mindful

of congressional purposes and objectives.”197 Although

the Improvement Act calls for “state involvement and

participation of the management of the [National

Wildlife Refuge System],” the Improvement Act

requires the Service “to act in conformity with State

objectives only ‘to the extent practicable.’”198 The Tenth

Circuit also observed that the legislative history behind

the saving clause “lends little support to [Wyoming’s]

claim that the saving clause unconditionally reserves

to it the ‘sovereign’ right to manage elk” on the NER.”

The court cited to a statement in the legislative history

that noted the Improvement Act was “designed to

maintain the status quo relative to the dispute between

the States and the [DOI] over the issue of which entity

196

Id. at 1231 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947)).

197

198

Id. at 1231.

Id. at 1232 (quoting 16 U.S.C. § 668dd(e)(1)(A)(iii) and citing

§ 668dd(e)(3)).

App. 102

has the authority to control, manage, and regulate fish

and resident wildlife on areas within the System.”199

The Tenth Circuit explained that “the proposition that

the [Service] lacks the power to make a decision

regarding the health of wildlife on the NER when a

State, for whatever reason, disagrees with that decision

proves too much” because “[s]uch a construction of the

saving clause would be inconsistent with the

[Improvement Act’s] ‘mission . . . to administer a

national network of lands.’”200 Instead, the Tenth

Circuit determined that the saving clause reflected

only that “Congress did not intend to displace entirely

state regulation and management of wildlife on federal

public lands,” and instead “intended ordinary

principles of conflict preemption to apply . . . .”201

Similar logic applies to § 1314 of ANILCA. Like the

Improvement Act, ANILCA does not unconditionally

direct the Secretary to conform federal regulations to

state law, but instead provides that “[e]ach refuge shall

be administered . . . in accordance with the laws

governing the administration of units of the National

Wildlife Refuge System, and this Act.”202 ANILCA

instructs the Secretary to prepare CCPs that “specify

the uses within each such area which may be

compatible with the major purposes of the refuge,”

199

Id. at 1232–33 (quoting S. Rep. No. 1463, at 6–7, reprinted in

1966 U.S.C.C.A.N. at 3347–48).

200

Id. at 1233–34 (quoting 16 U.S.C. § 668dd(a)(2)).

201

Id. at 1234.

202

Pub. L. No. 96-487 § 304(a).

App. 103

without mention of conformity to state law.203 While

ANILCA aims to strike a “balance between the

reservation of national conservation system units and

those public lands necessary and appropriate for more

intensive use and disposition,” Plaintiffs do not point to

any provision in ANILCA that explicitly states that

federal regulations governing NWRs must conform to

state law.204 Instead, they point to § 1314(a), which by

itself seems to support the proposition that the State

retains ultimate control over wildlife on federal lands;

however, this construction of § 1314 would be contrary

to ANILCA’s purpose to “provide for the maintenance

of sound populations of, and habitat for, wildlife species

of inestimable value to the citizens of Alaska and the

Nation . . . .”205 Section 1314 itself is at odds with

Plaintiffs’ reading because it provides that “[t]he taking

of fish and wildlife in all conservation system units . . .

shall be carried out in accordance with the provisions

of this Act and other applicable State and Federal

law.”206 Thus, § 1314 specifically contemplates that

federal law will apply to NWRs, and where there is a

clear conflict between federal and state law, the federal

law controls.

203

Pub. L. No. 96-487 § 304(g)(3)(A)(iii).

204

Accord Pub. L. No. 96-487 § 101(d); 16 U.S.C. § 3101(d).

205

Pub. L. No. 96-487 § 101(b); 16 U.S.C. § 3101(b) (emphasis

added).

206

Pub. L. No. 96-487 § 1314(c); 16 U.S.C. § 3202(c) (emphasis

added).

App. 104

Additionally, the legislative record does not support

the State’s sweeping interpretation of § 1314(a).

Instead, the record explains that § 1314 “is a perfecting

amendment designed to maintain the status quo in

historic Federal-State relations concerning fish and

wildlife management, except as specifically modified by

this Act in the Subsistence Title.”207 This statement

closely resembles the statement the Wyoming court

cited as evidence that Congress did not intend the

Improvement Act to confer plenary authority over

wildlife on federal lands to the States.208

This interpretation of ANILCA is further supported

by the 1982 MMU between the State and the Service,

which “reflects the general policy guidelines within

which the two agencies agree to operate.”.209 In the

MMU, the Service agreed “[t]o adopt refuge

management plans whose provisions . . . are in

207

126 Cong. Rec. 31109 (statement of Sen. Ted Stevens).

208

See Wyoming, 279 F.3d at 1232–33 (quoting S. Rep. No. 1463, at

6-7, reprinted in 1966 U.S.C.C.A.N. at 3347–48) (“Your committee

has added a provision to this subsection which makes it clear that

this bill does not diminish or increase the authority, jurisdiction,

or responsibility of the States relative to fish and resident wildlife

in any area within the system. The amendment was agreed to by

the President of the International Association of Game, Fish, and

Conservation Commissioners representing all the State fish and

game departments and by the Department of the Interior. It is

designed to maintain the status quo relative to the dispute

between the States and the Department over the issue of which

entity has the authority to control, manage, and regulate fish and

resident wildlife on areas within the System.”).

209

FWL001551.

App. 105

substantial agreement with the [State’s] fish and

wildlife plans, unless such plans are determined

formally to be incompatible with the purposes for which

the respective refuges were established.”210 The Service

and the State mutually agreed that “the taking of fish

and wildlife . . . on Service lands in Alaska is

authorized in accordance with applicable State and

Federal law unless State regulations are found to be

incompatible with documented Refuge goals, objectives,

or management plans.”211 Thus, both the State and the

Service recognized and agreed in the MMU that the

Service retained ultimate authority to manage NWRs

in accordance with the purposes set forth in ANILCA.

Accordingly, the Court declines to “give broad effect

to [a] saving clause[] where doing so would upset the

careful regulatory scheme established by federal

law.”212 Rather, the Court finds that § 1314(a) “was not

meant to eviscerate the primacy of federal authority

over [national wildlife refuge] management” 213 and

instead reflects Congress’s intent that “ordinary

210

FWL001553 (emphasis added).

211

FWL001553–54.

212

Geier v. Am. Honda Motor Co., 529 U.S. 861, 870 (2000)

(internal quotation omitted) (holding that saving clause for tort

liability in federal motor vehicle safety statute that also contains

express preemption clause “does not foreclose . . . the possibility

that a federal safety standard will preempt a state common-law

tort action with which it conflicts”).

213

Nat’l Audubon Society, 307 F.3d at 854.

App. 106

principles of conflict preemption apply” to disputes

involving ANILCA.214

Plaintiffs’ assertion that the Service has

misconstrued the purposes of the Kenai NWR to

prioritize other uses over hunting is also unavailing.

Notably, § 303(4)(B) provides that “opportunities for

scientific research, interpretation, environmental

education, and land management training” within the

Kenai NWR are to be provided “in a manner

consistent” with “conserve[ing] fish and wildlife

populations and habitats in their natural diversity”

and “fulfill[ing] the international treaty obligations of

the United States with respect to fish and wildlife.”215

In contrast, “opportunities for fish and wildlife-oriented

recreation” such as hunting are to be provided “in a

manner compatible with these purposes,” referring to

all the other listed purposes of the Kenai NWR.216

Beginning with the first CCP, the Service determined

that hunting should be restricted in the Skilak WRA

“so wildlife would become more abundant, less wary,

and easily viewed.”217 Even if “Congress did not require

[environmental education and scientific research to] be

carried out to the exclusion of hunting” as urged by

Plaintiffs,218 § 304(g) specifically instructs the

214

Wyoming, 279 F.3d at 1234.

215

Pub. L. No. 96-487 § 303(4)(B)(i)–(iv).

216

Pub. L. No. 96-487 § 303(4)(B)(v).

217

FWL000982.

218

Docket 189 at 53.

App. 107

Secretary to “specify the uses within each such area

which may be compatible with the major purposes of

the refuge.”219 The prohibition on brown bear baiting

and the restrictions on hunting in the Skilak WRA and

along the Kenai and Russian rivers are valid exercises

of the Service’s authority under ANILCA to specify

different uses for different areas within the Kenai

NWR.

For the foregoing reasons, the Court finds that the

challenged aspects of the Kenai Rule do not violate

ANILCA.

III.

National Wildlife

Improvement Act

Refuge

System

Plaintiffs assert that the Kenai Rule violates the

Improvement Act because it impermissibly “elevates

one compatible priority use (viewing) over another

(hunting).”220 They contend that the Service’s reliance

on the Skilak WRA’s “antiquated management goal” is

inappropriate because “the Skilak WRA’s

establishment in 1985 preceded the Improvement Act’s

instruction in 1997 to ‘facilitate’ compatible wildlifedependent recreational uses.”221 Plaintiffs additionally

assert that “the Kenai Rule violates the Improvement

Act and [Service] policy by promoting non-priority uses

over hunting,” such as “hiking, night sky observation,

cross country skiing, and winter camping . . . in the

219

Pub. L. No. 96-487 § 304(g)(1)(A)(iii).

220

Docket 171 at 50.

221

Docket 171 at 51.

App. 108

Skilak WRA” and river floating and hiking on and

along the Kenai and Russian rivers.222 They also

contend that the Service “has not made a formal

finding of incompatibility” and in fact concluded in the

2007 compatibility determination that “hunting is

compatible,” and thus the Service “has no legal basis to

exclude hunting for the benefit of other uses.”223

Plaintiffs also assert that the Service misconstrued the

BOG’s regulations regarding brown bear baiting and

predator hunts in the Skilak WRA as “intensive

management” and erroneously concluded they were

inconsistent with the 2010 Kenai NWR CCP, which

“unnecessarily creat[ed] a conflict with State law.”224

Thus, the Plaintiffs maintain that the Kenai Rule “is

not consistent with State wildlife laws, ‘to the extent

practicable,’”225 and “illegally deprive[s] the State of its

authority” under § 668dd(m).226

Federal Defendants respond by first asserting that

“the Service did not elevate one priority use over

another,” but instead “specified different areas of the

refuge for different purposes that can be incompatible”

which is “authorized by section 304(g) of ANILCA.”227

222

Docket 171 at 52 (citing 81 Fed. Reg. 27034, 27038).

223

Docket 190 at 55.

224

Docket 189 at 56–57.

225

Docket 189 at 57 (quoting 16 U.S.C. § 668dd(m)).

226

Docket 189 at 56 n.25.

227

Docket 178 at 35–36.

App. 109

Regarding the Skilak WRA hunting restrictions, they

contend that although the Skilak WRA was created

and developed pursuant to ANILCA prior to the

passage of the Improvement Act, “any conflict between

the Improvement Act and ANILCA is resolved in favor

of ANILCA,” pointing to § 9(b) of the Improvement Act,

which provides that “any conflict arises between any

provision of this Act and any provision of the Alaska

National Interest Lands Conservation Act, then the

provision in the Alaska National Interest Lands

Conservation Act shall prevail.”228 Federal Defendants

additionally assert that the Skilak WRA hunting

restrictions do not “elevate[] non-priority uses . . . over

hunting”; instead, pursuant to “section 6 of the

Improvement Act, the Service considered whether a

‘new use’ of the Kenai Refuge (open hunting in the

Skilak WRA) was ‘inconsistent with public safety.’”229

Likewise, regarding the prohibition on discharging

firearms along the Kenai and Russian rivers, they

contend that “[w]hile the Service . . . considered general

228

Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory

construction note regarding 16 U.S.C. § 668dd with respect to

Alaska).

229

See 16 U.S.C. § 668dd(d)(3)(A)(i) (“Except as provided in clause

(iv), the Secretary shall not initiate or permit a new use of a refuge

or expand, renew, or extend an existing use of a refuge, unless the

Secretary has determined that the use is a compatible use and that

the use is not inconsistent with public safety. The Secretary may

make the determinations referred to in this paragraph for a refuge

concurrently with development of a conservation plan under

subsection (e).”). See also 16 U.S.C. § 668dd(d)(3)(A)(iii) (“Wildlifedependent recreational uses may be authorized on a refuge when

they are compatible and not inconsistent with public safety.”).

App. 110

river recreation to document levels of river usage, its

public safety concerns are justified under ANILCA and

the Improvement Act.”230 In response to Plaintiffs’

assertion that they misconstrued the BOG’s regulations

as “intensive management,” Federal Defendants

respond that it “is irrelevant to the Kenai Rule

because . . . the Kenai Rule does not rely on notions of

‘intensive management’ or ‘predator control’”; rather,

“the Court need only consider whether the ‘agency’s

stated reasons for’ the Kenai Rule are sufficient . . . .”231

Plaintiffs’ contention that the Service has

impermissibly elevated one priority use over another

priority use by restricting predator hunting in the

Skilak WRA and prohibiting firearm discharges along

the Kenai and Russian rivers is without merit.

ANILCA instructs the Secretary to develop CCPs that

“specify the uses within each such area which may be

compatible with the major purposes of the refuge.”232

Even if the Skilak restrictions constitute impermissible

prioritization of wildlife viewing and photography or

fishing over hunting under the Improvement Act,

ANILCA’s § 304(g) instructs the Service to set aside

different areas for different uses; if the Improvement

Act conflicts with the this provision in ANILCA,

230

Docket 178 at 40.

231

Docket 201 at 29 (quoting Dep’t of Commerce v. New York, 139

S. Ct. 2551, 2573 (2019)).

232

Pub. L. No. 96-487 § 304(g)(1)(A)(iii).

App. 111

§ 304(g) prevails.233 For similar reasons, Plaintiffs’

contention that the Service has “no legal basis to

exclude hunting for the benefit of other uses” because

the “2007 [compatibility determination] concludes that

hunting is compatible” also fails.234 Even though

hunting has been determined to be compatible,

ANILCA still instructs the Secretary to set aside

different portions of the Kenai NWR for different

uses,235 and ANILCA controls if in conflict with the

Improvement Act on this point.236

Plaintiffs’ assertion that the Kenai Rule

impermissibly elevates non-priority uses over hunting

is also unpersuasive. The Improvement Act permits

restrictions on compatible uses that are “necessary,

reasonable, and appropriate.” 237 The Service explained

that the restriction on firearm discharges along the

Kenai and Russian rivers was included “to reduce

233

Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory

construction note regarding 16 U.S.C. § 668dd with respect to Alaska).

234

Docket 190 at 55.

235

Pub. L. No. 96-487 § 304(g)(1)(A).

236

Pub. L. No. 105-57 § 9(b), 111 Stat. 1252 (1997) (statutory

construction note regarding 16 U.S.C. § 668dd with respect to

Alaska).

237

16 U.S.C. § 668dd(a)(3)(D). This provision only applies “when

the Secretary determines that a proposed wildlife-dependent

recreational use is a compatible use within a refuge . . . .” Id. The

Secretary has not determined that brown bear baiting is a

compatible use within the Kenai NWR. Thus, this provision does

not apply to the bear baiting restriction.

App. 112

threats to public safety” in the area.238 The Service also

explained that the Skilak WRA was heavily used such

that expanded hunting activity in that area could pose

public safety issues.239 These restrictions reasonably

238

81 Fed. Reg. 27034 (“Recent takes of brown bears along the

Russian and Kenai rivers during the falls of 2013 and 2014 posed

threats to public safety, as bears were shot in close proximity to

other users fishing from shore, wading, or boating, and firearms

and ammunition with substantial lethal distances were used in

areas where sight distances are extremely limited due to

vegetation and river meanders. These takes occurred on, along, or

immediately adjacent to river shorelines and wi

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