Fishing in Alaskan river

In early 2020, with the onset of the COVID-19 pandemic2020, the Federal Subsistence Board (“FSB”) received numerous emergency special action requests from subsistence users related to food security concerns.

In this context, the FSB approved two short-term changes to hunting practices on federal public lands in Alaska. First, the FSB opened an emergency hunt for the Organized Village of Kake. Second, the FSB instituted a partial, temporary closure of public lands in game management Unit 13 to nonsubsistence users.

The State of Alaska Department of Fish and Game brought action against the Board and several federal officials before the district court of Alaska, alleging that the changes violated the Alaska National Interest Lands Conservation Act (“ANILCA”) and the Administrative Procedure Act. Before the district court issued its decision, the Kake Hunt ended, and the district court deemed the challenge to it moot. In the district court’s view, the challenged change was not capable of repetition since it was inextricably linked to the conditions of the COVID-19 pandemic, which had then changed.

By judgment of 14.3.2023, the Court of Appeals for the Ninth Circuit reversed this decision and remanded the case for further examination. The Court highlighted that in its complaint Alaska broadly asserted that ANILCA does not confer statutory authority on the federal government, including the FSB, to open emergency hunting seasons. That claim was not based on the particular circumstances of the Kake hunt, including the status of the COVID-19 pandemic. Rather, it challenged the FSB’s general action of opening an emergency hunt. Since based on the evidence provided by plaintiff there is a reasonable expectation that this challenged action will recur in the future, the Court held that this cause of action could not be considered moot and remanded the case for further examination.

Reference: State of Alaska Department of Fish and Game v. Federal Subsistence Board et al., United States Court of Appeals for the Ninth Circuit, 14 March 2023.

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