ELR Citation: ELR 20156
No(s). 86-3657 (9th Cir. Oct 9, 1987)

The court holds that a 1925 statute authorizing migratory bird subsistence hunting in Alaska does not supersede the 1918 Migratory Bird Treaty Act (MBTA) or its implementing regulations, which prohibit subsistence hunting of migratory game birds during the closed season. The court first holds that plaintiff conservation groups have standing to sue. Plaintiffs have alleged injury-in-fact, since the decrease in number of certain migratory bird species has injured plaintiffs' members who wish to hunt, photograph, or study the birds. Secondly, the injury is traceable to actions taken by the defendants, since the federal and state defendants entered into an agreement allowing subsistence hunting of migratory birds during the closed season, and subsistence hunting is one cause of the decline in migratory bird populations. Thirdly, there is a substantial likelihood that a declaration by this court that closed-season subsistence hunting violates federal law will redress the injury. The court holds that plaintiffs are proper representatives of those who are injured, since plaintiffs' members would have standing in their own right, preventing the extinction of migratory game birds is germane to the associations' purposes, and the request for declaratory and injunctive relief does not require the participation of plaintiffs' members in the litigation.

The court holds that a decision in favor of plaintiffs would not infringe on the prosecutorial discretion of the Fish and Wildlife Service (FWS). Although failure of an agency to prosecute is presumptively unreviewable under the Administrative Procedure Act, plaintiffs are not relying solely on FWS' failure to enforce the MBTA as the basis for their claim. Plaintiffs alleged that the FWS violated the MBTA by entering into an agreement with state officials not to enforce subsistence hunting restrictions, and the agency's discretion is limited to actions in accordance with the treaties the MBTA implements. The court holds the litigation is not moot. Although the challenged cooperative agreements are not in effect for the 1987 season, the very shortness of their duration made it difficult to obtain judicial review while they were in force. Moreover, plaintiffs have shown that there is a sufficient likelihood that defendants will continue to take actions relating to official sanctioning of closed-season hunting that are injurious to migratory bird populations. The public interest also argues against mootness, since until the parties are sure which laws govern the subsistence game birds in Alaska it may not be possible to adequately address the birds' population decline.

The court then holds that the MBTA does not permit closedseason subsistence hunting by Alaskan natives. Although the Secretary of the Interior is authorized to issue regulations permitting subsistence hunting, he may only do so to the extent that the regulations are in accord with all four treaties implemented by the MBTA, and the narrowest of the treaties does not contain exceptions for the hunting of the species listed in the challenged agreements. The court holds that the 1925 Alaska Game Law, regulating the hunting of various animals and birds in Alaska, did not expressly or implicitly repeal the 1918 MBTA. Two seemingly contradictory clauses in the 1925 law, one proscribing restrictions on emergency subsistence hunting and the other prohibiting regulations conflicting with the MBTA, can be reconciled, since the former can be read to permit all subsistence hunting except that of migratory birds where prohibited by the MBTA. The court holds that another section repealing all prior wildlife legislation applicable to Alaska did not repeal the MBTA, since the 1925 law also specifically stated that the provisions of the MBTA were not to be contravened. Moreover, the FWS' long-standing interpretation has been that Congress did not intend to permit subsistence hunting of migratory birds or to have the 1925 law supersede the MBTA.

Counsel for Plaintiffs-Appellants
Gregory F. Cook
7753 N. Douglas Highway, Douglas AK 99824
(907) 586-9719

Counsel for Defendant-Appellee
James C. Kilbourne, Edward J. Shawaker, J. Carol Williams
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7371

Counsel for Intervenors-Appellees
Donald C. Mitchell
1552 Orca St., Anchorage AK 99501
(907) 276-1969

Before Fletcher and Vukasin Jr.,^[*] JJ.