Ninth Circuit revives Alaska objection to subsistence hunt

(CN) — A Ninth Circuit panel on Tuesday ruled a federal judge was wrong to dismiss a complaint filed by the state of Alaska over a subsistence hunt granted to a Native American tribe experiencing food insecurity during the early months of the Covid pandemic.

The Organized Village of Kake is a federally recognized tribe living in Kake, Alaska, a small town of just over 500 on one of roughly 1,100 islands in the Alexander Archipelago, on the southeast arm of the state. The town of Kake does not contain a wealth of food options — it has only one small grocery store and one mini-mart, which sells mostly processed foods brought in from the lower 48 states. In March and April 2020, as most of the world shut down in response to the pandemic, Kake began experiencing food shortages.

"The commercial food vendors in Kake had a hard time meeting the needs of the village small store and mini-mart and had a difficult time procuring various foods, fresh and frozen alike," lawyers for the tribe wrote in a 2020 court filing. "Meat and canned goods were especially difficult to obtain."

With the fall hunting season still months away, the tribe submitted a request to the Federal Subsistence Board for permission to hunt "two bull moose and five male deer per month on Forest Service land for a period of 60 days." After a public meeting, the board authorized a 30-day hunt. During two days in June, Kake hunters "harvested two moose and five deer, and the meat was then processed and distributed to over 100 households in the community," according to the court filing.

Unrelatedly, an unnamed Alaska resident asked the Federal Subsistence Board to temporarily ban caribou and moose hunting for non-subsistence uses on public land in a different part of Alaska, citing concerns about public safety. As one proponent of the closure testified, "the area is too crowded to safely hunt as people aim guns at one another and shoot over people’s heads.” There were also worries about the effects hunting might have on those residents who relied on subsistence hunting. The board agreed to a closure, in a much smaller area of land than requested, for two years.

Alaska sued over both actions taken by the Federal Subsistence Board, arguing two federal laws had been violated: the Alaska National Interest Lands Conservation Act and the Administrative Procedure Act. In its complaint, the state said "the Federal Subsistence Board’s decisions may deprive Alaskans, including local subsistence-dependent Alaskans, of subsistence resources in the future."

U.S. District Court Judge Sharon Gleason dismissed the suit in December 2020, ruling that the objections to the emergency hunt were moot since the hunt was over. As for the closure of certain lands to hunting, Gleason found "the record contained ample evidence to support the board’s decision."

Alaska appealed, arguing that the issue of the emergency hunt wasn't moot because it could easily be granted again.

In a unanimous decision, U.S. District Judge Stephen Bough, a Barack Obama appointee sitting by designation from the Western District of Missouri wrote, "there is a reasonable expectation that this challenged action will recur."

Writing for the panel, Bough continued: "These emergency action requests arise out of unpredictable situations that need immediate attention. Clarifying the FSB’s authority to act in those situations will further the public interest."

But the three-judge panel declined to weigh in on that issue, and instead ordered the lower court to figure out whether the Federal Subsistence Board has the authority to issue emergency hunts.

Having ruled that the first issue at hand was moot, the panel then decided the second issue — the closure of land to hunting — was moot, since the closure period ended in 2022, before the appeal.

U.S. Circuit Judges Jacqueline Nguyen, an Obama appointee, and Lucy Koh, a Joe Biden appointee, rounded out the panel.

A spokesperson for the Federal Subsistence Board declined to comment on the ruling. Lawyers for the state of Alaska did not respond to an email requesting a comment.

Whitney Leonard, an attorney representing the Kake tribe, said in an email, "The Organized Village of Kake had hoped the Ninth Circuit would simply affirm the district court and end the litigation over a hunt that took place nearly three years ago. But in light of the court’s conclusion that the issue is not moot, the tribe agrees it is appropriate for the district court to consider the merits in the first instance."

She added: "The emergency hunt was extremely important for the health and well-being of the Village of Kake during a time of critical need at the height of the pandemic. The tribe will continue to defend the federal government’s authority to open that hunt and will continue to vigorously defend the subsistence rights of its Tribal members."

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