Judge denies State request for injunction against Subsistence Board

  • A federal judge has denied the State of Alaska’s request for a preliminary injunction against the Federal Subsistence Board over its decision to restrict access to popular moose and caribou hunting grounds in Game Management Units 13A and B. (Photo/Becky Bohrer/AP)

Rural subsistence hunters won the initial round in the latest battle between state and federal wildlife managers that also underscores the long-simmering tensions between Alaska’s rural and urban fish and wildlife harvesters.

U.S. District Court of Alaska Judge Sharon Gleason denied the State of Alaska’s petition for a preliminary injunction to reopen federal lands in the area of the popular Nelchina caribou hunt to hunters from across the state in a Sept. 18 order.

Gov. Mike Dunleavy’s administration filed a lawsuit against the Federal Subsistence Board Aug. 10 in an attempt to overturn the board’s July decision to close federal public lands in state game management units 13A and 13B to non-local moose and caribou hunters for the 2020-21 and 2021-22 fall and winter hunting seasons.

State officials contend the federal restrictions on moose and caribou hunting in the Upper Copper River basin violate the Alaska National Interest Lands Conservation Act, or ANILCA, and impair the Alaska Department of Fish and Game’s ability to fairly and effectively manage the game resources.

They additionally allege in the same complaint that the Federal Subsistence Board overstepped its authority by opening special, unrelated moose and deer hunts in Southeast Alaska last summer.

The board approved the closure at its July 16 meeting as a means to reduce competition for game between federally qualified subsistence hunters who live in the area and hunters from elsewhere in the state — often from the Anchorage, Fairbanks or Mat-Su areas.

State law mandates that all Alaska residents are eligible to participate in state-sanctioned subsistence harvests across the state, while federal law can offer preferential harvest status on federally managed lands to residents of qualifying rural areas. The diverging structures have long spurred often convoluted but reliably contentious debates between state and federal land and resource managers.

State Game Management Unit 13 encompasses most of the upper Susitna and Copper River valleys and is a particularly popular region among urban hunters because of its road access. The 13A and B subunits can be reached by Denali, Glenn and Richardson highways.

Many residents of the area have long insisted the annual influx of non-local hunters hinders their ability to successfully harvest moose and caribou for subsistence purposes. The closure, which applies to nearly 3 percent of the land within Unit 13, was first proposed to the board by a resident of Glennallen.

Those federal lands are largely along the Delta and Gulkana rivers.

State attorneys wrote in their original complaint that the board first violated ANILCA and related regulations by issuing the closure to reduce hunter competition, which they claim is an unlawful justification for the move.

“Congress (in ANILCA) did not authorize restrictions on hunting based on competition or number of hunters in the area,” the complaint states.

The board also extended the proposed closure to two years so the board wouldn’t have to address future special requests rather than limiting it to the “minimum period necessary” required by regulation, according to state attorneys.

According to state and federal data compiled by board staff, between 600 and 700 hunters participated in the federal moose hunts for all of Unit 13 in recent years with an average success rate of about 11 percent, compared to state moose hunts in the unit that attract an average of about 4,700 hunters per year with a success rate of about 17 percent.

The number of state Unit 13 caribou hunters — and their success rate — can vary widely year-to-year, primarily due to animal abundance, according to board reports.

In 2016, state hunters harvested 5,785 caribou in Unit 13, but the harvest dropped to 1,411 animals by 2018. Qualified hunters participating in the Unit 13 federal subsistence hunts harvested 320 caribou and 61 moose in 2018 and 102 caribou and 71 moose in 2019, according to Office of Subsistence Management Wildlife Biologist Lisa Maas.

ADFG officials typically do not limit the number of Unit 13 subsistence caribou hunting permits — known as Tier I permits — issued to Alaska residents; rather, managers limit harvest by closing the season early if hunters approach the yearly harvest quota based on in-season reporting.

The Unit 13 Tier I caribou hunt started Aug. 10 and closed Sept. 20. It is scheduled to reopen Oct. 21 following a closure to protect the animals during their breeding season, or rut. The season could remain open until March 31 if the harvest quota is not met before then.

Dunleavy administration officials also argued that the board overstepped its authority in June by approving special moose and deer hunts requested by the Organized Village of Kake. Tribe leaders claimed in court filings that the COVID-19 pandemic caused shortages of food and cleaning supplies in Kake, a Kupreanof Island community with about 550 residents.

In June, the Federal Subsistence Board authorized area U.S. Forest Service officials to permit a special 30-day hunt in which two bull moose and five male Sitka blacktail deer could be harvested by Tribal members.

Hunters harvested those animals in the hunt that took place from June 24 to July 24 and distributed the meat to more than 100 households in Kake, according to court filings.

The Organized Village of Kake intervened as a defendant in the state’s lawsuit against the board.

As for the Unit 13 issues, Gleason in part agreed with the board’s justifications that the closures would “ensure continued subsistence use opportunities” and “address public safety concerns resulting from overcrowding and user conflict along the Richardson Highway,” she wrote in an order denying the state’s request for a preliminary injunction.

Gleason also concluded that at first blush that the two-year closure appears to be in line with the regulatory cycle of the Office of Subsistence Management, or OSM, which the board operates under.

“Because the closure term is consistent with the outer limits of (OSM regulations) — the end of the current regulatory cycle — and the record provides support for the conclusion that two years might be the ‘minimum time period… necessary under the circumstances’ due to the ongoing nature of the issues in Unit 13, the Court finds that the State has not demonstrated either a likelihood of success or serious questions going to the merits of its claim,” she wrote.

Gleason did not rule on the state’s claims regarding the Kake moose and deer hunt or the state’s claims overall.

Elwood Brehmer can be reached at [email protected].

10/07/2020 - 8:59am