Emergency Hunts Due To COVID-19 Can Continue In Alaska

By Diamond Naga Siu
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Law360 (November 20, 2020, 8:50 PM EST) -- The state of Alaska cannot block emergency hunts for moose and deer granted to a tribal community to address food shortages stemming from COVID-19 restrictions, an Alaska federal judge has ruled.

In her order Wednesday denying the state's request for a preliminary injunction, U.S. District Judge Sharon L. Gleason said that opening a federally authorized emergency hunt due to the tribe's food concerns was reasonable and cited the Alaska National Interest Lands Conservation Act's goal of ensuring the "physical well-being of rural residents of Alaska."

"The requesters [tribal members] explained that travel restrictions, reduced transportation of goods, and disruptions in national food supply had diminished or were expected to diminish their communities' food supply," Judge Gleason wrote in her order.

In June, the Federal Subsistence Board authorized a season of up to 60 days for the Organized Village of Kake, but the hunt, in which several animals were taken, ended up lasting only 30 days. In a suit filed in August, Alaska Department of Fish and Game argued that this authorization interfered with the state's ability to manage and regulate the animals in the hunting areas.

The department asked the court to immediately prevent FSB from authorizing any more emergency hunts, revoke the emergency hunting authorization granted to the Kake Village and stop the FSB from what the wildlife agency said was overexerting its power.

Judge Gleason was not persuaded.

"The Court finds that the State has not demonstrated either a likelihood of success or serious questions going to the merits of its claim that Defendants violated ANILCA by infringing on the State's authority to manage wildlife and hunting," she wrote.

An attorney for the village, Erin C. Dougherty Lynch of the Native American Rights Fund, told Law360 in a statement, "The Federal Subsistence Board was well within its authority to approve the Organized Village of Kake's emergency hunt, and we are pleased the court recognized that the State's claims otherwise are unlikely to succeed."

"Alaska Native communities are experiencing myriad hardships caused by the COVID-19 pandemic, and we encourage the State of Alaska to treat Tribes as partners, not adversaries," she added.

Cheryl Brooking, the senior assistant attorney general representing Alaska in the suit, told Law360 in an emailed statement that her side disagreed with some of the findings but will continue with the case.

"The state is disappointed that the request for a preliminary injunction was denied," she wrote. "We are hopeful that ultimately we may have a favorable outcome."

FSB said in its opposition to the suit that providing hunting authorization actually complied with its given powers and duties, such as ensuring that fish and wildlife are taken "for nonwasteful subsistence uses."

The board said in its filing that the hunt was approved based on substantial evidence provided to it, which included "severe shortages" of protein sources like eggs and meat.

Counsel for the FSB declined to comment Friday.

The Alaska Department of Fish and Game is represented by Cheryl R. Brooking of the Alaska Attorney General's Office.

The Federal Subsistence Board and relevant leaders are represented by Paul A. Tucker of the U.S. Department of Justice.

The Organized Village of Kake is represented by Erin C. Dougherty Lynch, Heather Kendall-Miller and Matthew Neil Newman of the Native American Rights Fund and by Lloyd B. Miller and Richard D. Monkman of Sonosky, Chambers Sachse, Miller & Munson LLP.

The case is State of Alaska, Department of Fish and Game v. Federal Subsistence Board et al., case number 3:20-cv-00195, in the U.S. District Court for the District of Alaska.

--Editing by Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

State of Alaska, Department of Fish and Game v. Federal Subsistence Board et al


Case Number

3:20-cv-00195

Court

Alaska

Nature of Suit

Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision

Judge

Sharon L. Gleason

Date Filed

August 10, 2020

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