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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) is 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 was again been remanded to the agency with instructions to initiate rule-making and the final rule was recently published. See 73 Fed. Reg. 19433 (April 10, 2008). No appeal will be taken and this case will now be closed and taken off the docket.
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