03-06-2025
Federal appeals court upholds emergency subsistence hunt in Southeast Alaska village of Kake
The shoreline of Kake, a Tlingit village of about 500 people, is seen in 2012. (Photo provided by the Alaska Division of Community Affairs)
A three-judge panel of the 9th U.S. Circuit Court of Appeals has ruled that the board which regulates subsistence hunting on federal lands within Alaska acted legally when it created an emergency hunt for a Southeast Alaska village during the COVID-19 pandemic emergency.
The order, issued Monday, is the latest chapter of a five-year-old legal dispute stemming from a hunt authorized by the Federal Subsistence Board because the emergency in 2020 disrupted the normal food supply for the Southeast Alaska village of Kake.
The emergency hunt resulted in the harvest of two moose and five deer, which were distributed to local residents.
The state of Alaska later sued the board, arguing that approving the emergency hunt was beyond its authority and that the board acted inappropriately by delegating the hunt's administration to the Kake tribe.
The Organized Village of Kake joined the lawsuit on the side of the Federal Subsistence board.
The state's initial lawsuit was ruled moot by U.S. District Court Judge Sharon Gleason, but the 9th Circuit overturned that decision and sent the case back to Gleason, who ruled partially in favor of the state and partially in favor of the board.
The state appealed again to the 9th Circuit, but on Tuesday, federal judges Carlos Bea (appointed by George W. Bush), Lucy Koh (Barack Obama) and Jennifer Sung (Joe Biden) confirmed that the hunt was legal.
With Bea writing a statement on the ruling for all three judges, they said that the 1980 Alaska National Interest Lands Conservation Act permits access to subsistence resources on federal land, not just access to the land where those resources may be found.
Bea cited Section 811 of ANILCA, in which Congress directed the Secretary of the Interior to ensure 'reasonable access to subsistence resources on the public lands.'
'Congress intended that the Secretary ensure that rural residents of Alaska have the reasonable opportunity to reach and use subsistence resources that can be found on federal land in Alaska,' Bea wrote.
The decision implies that the board has the authority to create hunts, not just end them, as the state had argued.
The judges also overruled part of a U.S. District Court decision that was partially in favor of the state, saying Gleason improperly handled prior instructions by the 9th Circuit.
'We hold that under Title VIII of (ANILCA), the Board has the power to authorize an emergency subsistence hunt on federal public lands for rural residents of the state of Alaska,' Bea wrote on behalf of the board.
Court of Appeals decisions are considered final, unless appealed to a higher court, such as the U.S. Supreme Court. The decision by the three judges could also be appealed to the entire 9th Circuit.
Doug Vincent-Lang, commissioner of the Alaska Department of Fish and Game, said in an emailed statement that the department doesn't agree with the decision.
'We are disappointed and disagree with this decision. It is both bewildering and perplexing that the court could rule against the plain language of the Alaska National Interest Claims Act, especially in light of the U.S. Supreme Court's ruling on Chevron deference. This ruling fundamentally alters the carefully crafted agreement that Congress made in adopting their language,' he said. 'We are currently reviewing our next steps.'
Attorneys representing Kake said by email that the tribe is pleased with the result.
'Today's decision from the 9th Circuit is a significant victory for the Organized Village of Kake and Alaska Native subsistence rights,' they said. 'The 9th Circuit rejected the State of Alaska's shameful, politically-motivated attempt to gut ANILCA's subsistence provisions, and confirmed the Federal Subsistence Board's authority to open a small hunt to provide desperately needed access to healthy and traditional food to a remote Alaska community at the height of the COVID-19 pandemic. Today's victory is an affirmation of the promises that Congress made to protect subsistence rights, and comes at a time when the State is still seeking to erode those rights in other litigation and actions. The Tribe is very pleased with the result.'
