Ninth Circuit affirms pandemic-induced emergency moose hunt for Alaskan tribe

(CN) — A Ninth Circuit panel on Monday upheld a federal board’s emergency decision to let a Native American tribe hunt moose and deer amid foot shortages during the early months of the Covid-19 pandemic.

“Given the lack of conservation concerns, if the board could not authorize a hunt to ensure that Kake residents could reasonably access subsistence resources for its survival, the board could not comply with its statutory mandate to ​​’ensure’ that Kake residents had reasonable access to subsistence resources on federal land in Alaska,” U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, wrote in the 29-page opinion.

When the pandemic significantly degraded the food supply chain in 2020, the Federal Subsistence Board authorized the Organized Village of Kake — a federally recognized tribe living in the small town of Kake on one of Alaska’s roughly 1,100 islands in the Alexander Archipelago — to hunt two bull moose and five male deer on federal land.

The harvest was distributed to both tribal and non-tribal residents in Kake, a town of roughly 500. The state sued the tribe, the board and several federal officials, arguing that the approval of the hunt violated the Alaska National Interest Lands Conservation Act and that the board lacked the authority to grant permission for the hunt.

A federal district court initially ruled in favor of the board, finding that the state’s suit was moot because the hunt ended before the court issued its decision. The state appealed, and in 2023, the Ninth Circuit reversed that determination and sent the case back to the lower court. The district court again ruled in favor of the board, finding it was reasonable for it to interpret the Alaska National Interest Lands Conservation Act as granting authority to open emergency subsistence hunts.

The Ninth Circuit on Monday agreed with the lower court’s finding but found it went too far when it ruled on Alaska’s improper delegation claim, which the state had forfeited during its first appeal.

The Alaska National Interest Lands Conservation Act has a provision stating that the Federal Subsistence Board, which is a division of the Department of the Interior, shall “ensure that rural residents engaged in subsistence uses shall have reasonable access to subsistence resources on the public lands.”

The state had argued that the provision only referred to physical access, like allowing entry to property.

“Not so,” Bea wrote. “That text means access to subsistence resources that are on federal land in Alaska, not merely access to the federal land where the subsistence resources may exist and be taken.”

Comparing the provision to other sections of the act, Bea noted that Congress could have defined the scope of “access” to limit it in the way the state had interpreted, but chose not to.

Under that section, the appeals court found that the board “has the power to authorize an emergency subsistence hunt to ensure rural residents have reasonable access to subsistence resources, especially when those rural residents would otherwise have no access to subsistence resources for survival.”

Further, the board made its authorization after determining there were no conservation concerns in allowing two antlered bull moose and five Sitka black-tailed deer to be hunted.

The Ninth Circuit turned to the statutory history of the act to bolster its position, pointing to two regulations from 1992 that recognized the board’s ability to “open” a hunting season. Congress also enacted contingent amendments twice that gave Alaska the opportunity to pass a state constitutional amendment allowing it to implement a compliant subsistence program, but the state failed to do so.

Turning to Alaska’s claim that the board improperly delegated the administration of the hunt to the tribe — which the lower court rejected — the Ninth Circuit stopped short of reaching the merits. When the case was first in the appeals court, the state dropped its improper delegation claim because it didn’t challenge the lower court’s finding that the claim was moot. The appeals court then addressed only the claim challenging the board’s authority and remanded it to the lower court after finding it was not moot.

“In so concluding, we explicitly limited the scope of our remand,” Bea wrote.

Bea acknowledged that there remains some confusion within the Ninth Circuit about whether a claim that was forfeited during an initial appeal falls within the scope of remand but found that it didn’t need to be decided to address this particular case.

“We expressly held that Alaska had forfeited its improper delegation claim on appeal and declined to reach the merits of that forfeited claim; we then expressly remanded only Alaska’s statutory authority claim to the district court,” Bea wrote.

Allowing the state to reignite the claim it previously forfeited would give it a “second bite at the apple” on an issue the court had already disposed of, Bea wrote.

“We conclude that allowing Alaska to reopen its improper delegation claim in this appeal would waste judicial resources and would not further the interests of consistency and finality in our judgments,” Bea wrote.

U.S. Circuit Judges Lucy Koh and Jennifer Sung, both Joe Biden appointees, were also on the panel.