Two state lawsuits hold national implications

This August 2016 photo shows Skilak Lake with Mt. Redoubt in the background on the Kenai National Wildlife Refuge, Alaska. The state of Alaska is engaged in two lawsuits at the federal level with national implications, one of which involves a set of rules for hunting on the Kenai National Wildlife Refuge, finalized in March 2016. (Photo by Elizabeth Earl/Peninsula Clarion, file)

The state of Alaska is caught up in two fish and wildlife-related lawsuits in federal courts that could set precedents around the nation for years to come, both of which heavily involve the Kenai Peninsula.

 

In the first, the state government is suing the U.S. Fish and Wildlife Service and the National Park Service for rules instituted under the prior administration restricting certain hunting practices on wildlife refuges and national preserves in Alaska. The National Park Service finalized the rules in October 2015 and Fish and Wildlife in 2016, and the state subsequently sued in January 2017 in the U.S. District Court of Alaska to overturn them. The state argues that the agencies are effectively intervening with the state’s ability to regulate game populations on the vast tracts of federal land.

In March 2017, Congress repealed part of the rules adopted by Fish and Wildlife through a House Joint Resolution, which President Donald Trump subsequently signed into law in April. However, that resolution did not include the National Park Service rules, nor did it include separate rules specifically on the Kenai National Wildlife Refuge.

In July, the U.S. Department of the Interior — the parent agency for both Fish and Wildlife and the National Park Service — issued directives for the two agencies to reconsider the remaining rules, according to a news release from the Alaska Department of Fish and Game.

“The agencies were directed to reassess the need for the October 2015 and May 2016 rules and give further consideration certain elements, in particular the ‘various prohibitions that directly contradict State of Alaska hunting and trapping authorization and wildlife management decisions,’” the release states.

The memo to the National Park Service from the office of Interior Secretary Ryan Zinke, dated July 14, specifically identifies prohibitions reducing opportunities for sport hunting and commercial trapping on park service lands for reconsideration. The memo to Fish and Wildlife, also dated July 14, mentions only “wildlife-related recreation opportunities on the refuge.”

Most of the argument hinges around the state’s intensive management program, which involves predator control in approved intensive management areas. The state’s Board of Game can authorize predator control activities to boost moose or caribou populations, including aerial gunning or poisoning. The board can authorize a predator control area for future use and Fish and Game does not have to use it, as in the case of the Kenai Peninsula, where the Board of Game reauthorized a predator control area for wolves in Game Management Unit 15C in January.

However, the Board of Game also can also liberalize hunting regulations on predators such as brown bears to encourage hunters, as it did in 2013 on the Kenai National Wildlife Refuge when the board approved baiting for brown bears. Fish and Wildlife prohibited bear baiting on the refuge shortly afterward. Fish and Game argues that this is interference with the state’s ability to manage its game, according to the press release. If the court rules in favor of the state in this case, it could impact wildlife and fish management authority across the country.

“Except when preempted by an act of Congress, all state have the authority to regulate the use of resident fish and wildlife,” the release states. “In Alaska, the Board of Game has the authority to set hunting and trapping regulations based on the principles of sustained yield derived form the Alaska Constitution and as guaranteed by Congress in the Alaska Statehood Act, and the Alaska National Interest Lands Conservation Act. This includes the authority to establish or prohibit methods and means of harvest.”

The second case is an entangled battle over who manages Cook Inlet’s salmon fisheries. As of 2012, the federal government through the North Pacific Fishery Management Council delegated the management of the fishery entirely to the state, even though the fishery occurs partially in federal waters, which are between three and 200 nautical miles offshore.

After the council passed the rule, the United Cook Inlet Drift Association sued and was granted a favorable ruling from a panel of three federal judges in September 2016, reversing an earlier ruling in the U.S. District Court of Alaska. The North Pacific Fishery Management Council began the process of revising the federal Fishery Management Plan to include Cook Inlet’s salmon fisheries in April, but the state appealed to the U.S. Supreme Court to take the case. The court has not yet decided to take up the case, but is scheduled to discuss it at a conference Sept. 25, according to the court calendar.

Fish and Game Commissioner Sam Cotten said during an Aug. 23 field hearing in Soldotna on the Magnuson-Stevens Fishery Conservation and Management Act reauthorization that the state opposes the federal managers getting involved in an already complicated fishery. The other regional federal fishery management councils and state fishery managers will likely have to reevaluate the state-federal management agreements if the decision stands, he said.

“The courts interpreted the statute to say that you always need a federal plan if it’s in the (Exclusive Economic Zone),” he said. “There’s a difference of opinion there. We think it’s not only important here in Alaska for salmon, but the state also manages Tanner crab, lingcod, two different species of rockfish and I’m told that other states would face similar problems. Specifically, pink shrimp on the west coast of the U.S. are managed by states but occur in the EEZ and could also be subject to a challenge as we have seen in the salmon here.”

Fish and wildlife managers from state agencies around the U.S. have identified cooperation with federal agencies as a problem in the past, according to a survey of state fish and wildlife agency directors by the Association of Fish and Wildlife Agencies in 2013. Various federal rules, including the National Environmental Policy Act, the Federal Land Policy and Management Act and the Track and Reporting Actions for the Conservation of Species system, have cause confusion, the report states.

“Nearly universally, state leadership did not identify these federal laws a problems, but rather pointed to subjective and inconsistent application of their precepts,” the survey’s executive summary states. “These findings identify a growing clash of authority and resulting tension between agencies that have similar mandates.”

Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.

Topics

More