 |
Attorney: Heather Kendall-Miller
Case Update
Background: Some years ago
Safari Club International filed a complaint which included three
primary claims: Count I) the standards and procedures utilized
by the Federal Subsistence Bureau (FSB) to make customary and traditional
use findings are flawed and therefore illegal; Count II) the legal
validity of all 180 customary and traditional use findings that
have been made by the FSB to date were done by flawed procedures
and therefore are illegal; and, Count III) the composition of
the Regional Area Councils (RACs) are illegal as purportedly failing
to comport with the "fair balance" requirements
of the Federal Advisory Council Act (FACA). We moved to intervene
on behalf of the Native Village of Venetie and others to defend
the existing FSB system and to bring a cross-claim against the
federal government to challenge the FSB's recent decision to expand
the RAC membership to include additional seats specifically for
sport, recreational and commercial interests. Safari Club opposed
our intervention. The federal government did not oppose our intervention
to defend Board action but objected to our cross-claim.
The court granted our request to intervene and
to bring a cross-claim against the federal government on the FSB's
decision to expand the RAC membership to include additional seats
specifically for sport, recreational and commercial interests.
The parties completed their briefing on the merits and an Order
was issued on January 22, 2004. Judge Holland denied Safari Club's
challenge on counts 1 and 2 but found that they have standing for
purposes of challenging the fair balance requirements of the RAC
composition under FACA. The Court further held that the FSB was
required to go through the proper rule-making procedure when making
such a fundamental change to the RACs. Because the FSB adopted
the 70/30 quota allocation for board membership without first allowing
for public comment, the Court enjoined further implementation of
that policy until the FSB undertakes the proper rule-making procedures.
The Court granted Venetie's summary judgment in part and denied
it in part. Final rule-making expanding the RACs to accommodate
a quota for sport and commercial interests was issued on October
14, 2004. The Court then lifted its stay and requested a status
report from the parties. Tribal intervenors filed an amended complaint
on March 12, 2005 to challenge the new regulations that again
adopted the 70/30 quota. Intervenors filed their summary judgment
motion (based on the new record) on September 13, 2005. The Government
filed its brief in opposition on November 8, 2005 and Safari Club
filed its brief in opposition on November 23, 2005. Plaintiffs
filed their Joint Reply on December 23, 2005.
On June 12, 2006 the Court issued an order rejecting
Intervenors' arguments that a single interest membership structure
of RAC members violated ANILCA and FACA but held in favor of Intervenors
on their APA claim. The Court again enjoined the agency from implementing
the 70/30 rule because the agency failed to consider any significant
alternatives to a quota system, a failure the Court found particularly
troubling "given the history of the regional advisory council make-up,
and the long history of antagonism between competing groups." The
action has again been remanded to the agency with instructions to
initiate rule-making.
|
|
