ALASKA FEDERATION OF NATIVES, ET AL., PETITIONERS V. ALASKA FISH AND WILDLIFE FEDERATION AND OUTDOOR COUNCIL, INC., ET AL. No. 87-1157 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the Federal Respondent in Opposition TABLE OF CONTENTS Question Presented Opinions Below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-32) is reported at 829 F.2d 933. The memorandum opinion of the district court (Pet. App. 33-58) is unreported. JURISDICTION The judgment of the court of appeals was entered on October 9, 1987. The petition for a writ of certiorari was filed on January 7, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Alaska Game Law of 1925, ch. 75, 43 Stat. 739, repeals the provisions of the Migratory Bird Treaty Act (16 U.S.C. 703 et. seq.) and related statutes that limit the closed season taking of migratory game birds. STATEMENT 1. In August 1916, the United States and Great Britain, acting on behalf of Canada, signed a convention in which they agreed to protect migratory birds from "indiscriminate slaughter" and to insure their preservation. See Convention for the Protection of Migratory Birds, Aug. 16, 1916, United States-Great Britain, 39 Stat. 1702, T.S. No. 628. This convention, known as the "Canadian Treaty," defined three categories of migratory birds needing protection: (a) migratory game birds, including all waterfowl (such as brant, wild ducks, and geese); (b) migratory insectivorous birds; and (c) other migratory nongame birds, including auks, auklets, guillemots, murres, and puffins. See id. art. I(1)(a), I(2), I(3), 39 Stat. 1702-1703. It established a closed season on the hunting of migratory game birds "during which no hunting shall be done except for scientific or propagating purposes under permits issued by proper authorities," although it further provided that "Indians may take at any time scoters for food but not for sale" (id. art. II(1), 39 Stat. 1703). It also imposed a closed season on the hunting of migratory nongame birds, permitting only Eskimos and Indians to "take at any season auks, auklets, guillemots, murres and puffins, and their eggs, for food and their skins for clothing" (id. art. II(3), 39 Stat. 1703). Finally, it prohibitied the taking of nests or eggs of migratory game birds, migratory insectivorous birds, and migratory nongame birds, except for scientific or propagating purposes (id. art. V, 39 Stat. 1704). In 1918, Congress gave effect to the Canadian Treaty by enacting the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq. Section 2 of the MBTA makes it unlawful "at any time, by any means or in any manner, to pursue, hunt, take, capture (or) kill * * * any migratory bird (or) any part, nest, or eggs or any such bird," unless such action is authorized by regulations issued pursuant to Section 3 of the statute (16 U.S.C. 703). Section 3 of the statute in turn authorizes and directs the Secretary of Agriculture to determine "when, to what extent, if at all, and by what means, it is compatible with the terms of the convention to allow hunting, taking, * * * or export of any (migratory) bird * * *" (16 U.S.C. 704). /1/ Following the MBTA's enactment, the Secretary of Agriculture adopted regulations specifying "when, to what extent, * * * and by what means" migratory birds could be hunted. Proclamation of July 31, 1918, 40 Stat. 1812. /2/ These regulations create a limited waterfowl hunting season for the State of Alaska and establish bag limits on the number of waterfowl a person can take in one day. /3/ They make an exception, however, for the taking of certian migratory nongame (but not game) birds by Native Alaskans. /4/ The regulations have been periodically revised over the years, but the revisions have not disturbed the closed season established for the hunting of migratory game birds in Alaska. See, e.g., Proclamation of May 17, 1921, 42 Stat. 2240; Proclamation of Mar. 8, 1922, 42 Stat. 2265; Proclamation of June 11, 1923, 43 Stat. 1915-1916; Proclamation of July 2, 1924, 43 Stat. 1961-1962; Proclamation of June 22, 1925, 44 Stat. 2579-2580. 2. In Janury 1925, Congress enacted the Alaska Game Law (AGL) ch. 75, 43 Stat. 739, 48 U.S.C. (1958 ed.) 192 et seq. (repealed). Section 8 of this law made it unlawful for any person "to take, possess, transport, sell, offer to sell, purchase, or offer to purchase any game animal, land fur-bearing animal, wild bird, or any parts thereof, or any nest or egg of any such bird," except as permitted by the statute itself or by regulations issued pursuant thereto (43 Stat. 743). Section 10 of the law authorized the Secretary of Agriculture to adopt regulations determining "when, to what extent, if at all, and by what means" game animals land fur-bearing animals, game birds, nongame birds, and nests or eggs of such birds could be taken, possessed, transported, bought, or sold (43 Stat. 743). Section 10 further provided, however, that no regulation could "prohibit any Indian or Eskimo, prospector, or traveler to take animals or birds during the close(d) season when he is in absolute need of food and other food is not available," unless the Secretary determined "that the supply of such species of animals or birds is in danger of extermination," /5/ and that no regulation could "contravene any of the provisions of the (M)igratory (B)ird (T)reaty Act and regulations" (43 Stat. 744). Section 16 of the statute stated "(t)hat the provisions of existing laws relating to the protection of * * * birds, and nests and eggs of birds in (Alaska) shall remain in full force and effect until the expiration of ninety days from the date of the publication of regulations of the Secretary of Agriculture adopted pursuant to the provisions of this Act" (43 Stat. 747). The first regulations adopted to implement the AGL stated that "(t)he Alaska game law (act of January 13, 1925) and the regulations thereunder supersede all previous Federal laws and regulations for the protection of game animals, land fur-bearing animals, and birds in the Territory, except the (M)igratory (B)ird (T)reaty (A)ct of July 3, 1918 (40 Stat. 755), * * * and the regulations thereunder" (Alaska Game Law and Regulations and Federal Laws Relating to Game and Birds In The Territory (May 1925) (Fed. Deft. Exh. E)). These regulations further provided that "(a)n Indian, Eskimo, or half-breed who has not severed his tribal relations by adopting a civilized mode of living, or by exercising the right of franchise, and an explorer, prospector, or traveler may take animals or birds in any part of the Territory at any time for food when in absolute need of food and other food is not available, but he shall not ship or sell any animal, or bird, or part thereof, so taken" (id. at Reg. 8). Nineteen years later, this exception was amended to exclude migratory birds. See 9 Fed. Reg. 5270, 5271 (1944). As amended, the regulations remained in effect until 1960, when all regulations implementing the AGL were deleted from the Code of Federal Regulations as having been "superseded by operation of the Alaska Statehood Act (Act of July 1958; 72 Stat. 339), as amended" (25 Fed. Reg. 7681 (1960)). 3. The Fish and Wildlife Service (FWS) is charged with the responsibility for administering and enforcing the MBTA (Pet. App. 7). In this regard, the FWS has long taken the position that the MBTA prohibits the harvesting of migratory birds between March 10 and September 1 of each year (ibid.). The FWS has also recognized, however, that subsistence hunters in Alaska have great needs for fresh meat in the spring and summer months and that political and geographic considerations render traditional law enforcement methods ineffective in the vast reaches of rural Alaska (ibid.). Accordingly, in recent years, it has not expended its limited resources on efforts to ensure compliance with the MBTA in Alaska (ibid.). The FWS has, however, taken steps to reduce the take of declining migratory bird species (Pet. App. 8). Thus, in January 1984, the FWS entered into an agreement -- called the Hooper Bay Agreement -- with the Alaska Department of Fish and Game (ADF&G), the California Department of Fish and Game (CDF&G), and the Association of Village Council Presidents of Alaskan Natives to limit the hunting of four species of migratory game birds -- the cackling Canada geese, brant, white-fronts, and emperor geese -- during the 1984 season (ibid.). While not prohibiting all takings of such species, the agreement placed a moratorium on all harvesting of cackling Canada geese; prohibited all egg gathering for cackling Canada geese, brant, and white-fronts; imposed a fifty-percent reduction on the open season sport-hunting harvest of brant and white-fronts; and barred closed season subsistence hunting of these two species during nesting, rearing, and molting periods (ibid.; see also Excerpt of Record (ER) Tab 24). FWS renewed and refined these agreements in 1985 and in each succeeding season (Pet. App. 8). Before the 1984 nesting season began, however, two non-profit Alaskan corporations, the Alaska Fish and Wildlife Conservation Fund, Inc. (the Fund), and the Alaska Fish and Wildlife Federation and Outdoor Council, Inc. (the Council), filed suit in district court against the Director of the FWS and the Commissioner of the ADF&G (Pet. App. 8-9). They sought to have the district court enjoin the FWS from acquiescing in the taking of any migratory birds by Native Alaskans, for subsistence purposes or otherwise, and to declare that the FWS must comply with the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., before entering into any agreements in which takings of migratory birds are allowed (Pet. App. 8-9). Shortly thereafter, the Alaska Federation of Natives, the Association of Village Council Presidents, and Alaska State Representative Tony Vaska intervened and cross-claimed against the FWS; they sought to have the district court declare that the AGL (rather than the MBTA) governs subsistence hunting of migratory game birds in Alaska and that, until the Secretary of the Interior adopts regulations pursuant to the Fish and Wildlife Improvement Act of 1978 (FWIA), Pub. L. No. 95-616, 92 Stat. 3110, which supplements the statutory protections for migratory birds, Alaskan Natives may engage in subsistence harvesting of migratory birds (Pet. App. 9). The district court granted summary judgment to the intervenors and dismissed the plaintiffs' claims against the FWS and the state defendants (Pet. App. 33-65). With respect to the intervenors' claims, the court ruled that the AGL superseded the MBTA as applied to the State of Alaska, that the AGL incorporated all of the MBTA's terms except in subsistence situations, and, accordingly, that subsistence hunting by Alaska Natives is permitted (id. at 9-10, 37-53); it reasoned that the two exceptions to the Secretary's regulatory authority in Section 10 of the AGL -- one proscribing restrictions on emergency subsistence hunting, the other proscribing regulations that conflict with the MBTA -- "cannot be reconciled" (Pet. App. 40-41), and that the inconsistency is best resolved by treating Section 16 ofthe AGL, which provided that existing laws relating to the protection of migratory birds in Alaska would remain in force for 90 days following the publication of regulations pursuant to the AGL, as an express and implied repeal of the MBTA insofar as it applies to the State of Alaska (Pet. App. 45-47). With respect to the challenges of the plaintiff-Fund and plaintiff-Council to the subsistence hunting agreements that the FWS and the state defendants had negotiated with the Alaskan Natives, the court ruled that, because the AGL repealed the MBTA as applied to the State of Alaska, those agreements were simply voluntary concessions on the part of the Alaskan Natives and that the FWS has no authority to enforce them (id. at 53-54); accordingly, it held that the plaintiffs' claims, including their APA and NEPA claims, were moot (id. at 53-57). 4. On appeal by the Fund, the Ninth Circuit reversed and remanded (Pet. App. 1-32). After rejecting several procedural arguments made by the FWS (id. at 6), the court concluded that "the MBTA governs the hunting of migratory birds" and that "the MBTA currently does not permit closed season subsistence hunting of migratory game birds by Alaskan Natives" (ibid). It thus remanded the case so that the district court could determine in the first instance whether the Hooper Bay Agreement and its successor agreements violate the statutes protecting migratory birds (ibid). On the substantive question, the court began by noting that, as supplemented by the FWIA, the statutes protecting migratory birds expressly "allow() the Secretary of the Interior to adopt regulations permitting subsistence hunting by Alaskan Natives if the regulations are in accordance with the provisions" of the treaties that the United States has entered into with Canada, the Soviet Union, Japan, and Mexico (Pet. App. 19). It then determined that "(t)he United States-Canada Convention is the most restrictive of the four treaties() and that all of the Secretary's regulations must be in accord with that treaty" (id. at 22). Finally, it concluded that, under the Canadian Treaty and the statutes protecting migratory birds, "the Secretary may adopt regulations that permit subsistence hunting for up to three and one-half months between September 1 and March 10 of each year" (ibid.). Having thus resolved that closed season hunting by Alaskan Natives is not permissible under the statutory scheme protecting migratory birds, the court turned to the district court's conclusion "that closed season subsistence hunting by Alaskan Natives is not regulated by the MBTA, but instead by the 1925 Alaska Game Law" (Pet. App. 22). Initially, it agreed with the district court that "(t)he 1925 AGL was ambiguous as to its relationship with the MBTA" (id. at 23), noting that Section 10 "explicitly prohibited the Secretary from adopting regulations contravening the MBTA" (ibid. (footnote omitted)), but that "Section 16 of the 1925 AGL * * * could be read as an implicit repeal ofthe MBTA as it applied to Alaska" (ibid.). It disagreed, however, with the district court's premise that the two exceptions to the Secretary's regulatory authority under Section 10 of the AGL could not be reconciled with each other (Pet. App. 26), finding that "(t)he subsistence hunting provision fairly can be read to permit subsistence hunting of all animals and all birds which are not migratory" (ibid.); that "(e)mergency subsistence hunting of migratory birds would then be permissible insofar as it is permitted by the MBTA" (ibid.); and that, while "(t)he legislative history of the 1925 AGL does not clarify the relationship between these two clauses," "Congress intended to promote * * * policies (relating to) * * * flexibility in meeting local needs and conservation of the natural resources of the area" and that "(t)hese policies support an interpretation of the emergency hunting provision that recognizes the emergency subsistence needs of Alaskan Natives but which also restricts the subsistence hunting of migratory birds" (ibid.). With the district court's premise out of the way, the court of appeals then determined that the ambiguous relationship between the statutory scheme protecting migratory birds and the AGL should be resolved in favor of the protections for migratory birds, noting that, "(b)ecause the statute specifically stated that the provisions of the MBTA were not to be contravened, the plain language of the statute suggests that section 16 did not repeal the MBTA insofar as it applied to Alaska" (id. at 27). It found support for this conclusion in the FWS's "longstanding interpretation * * * that Congress did not intend to permit subsistence hunting of migratory game birds or to have the 1925 AGL supersede the MBTA" (ibid.). ARGUMENT The decision below is correct. It does not conflict with any decision of this Court or of any other court of appeals. Accordingly, review by this Court is not warranted. 1. Petitioners initially err in suggesting (Pet. 16-18) that the decision below involves a question of substantial national importance because it affects Alaskan Natives in more than 200 villages and hundreds of migratory waterfowl populations. We agree, of course, that issues relating to Native subsistence hunting and the plight of migratory waterfowl are of concern to the entire country. But the decision below specifically left intact and recognized as unreviewable the FWS's discretion whether and in what circumstances to prosecute those who may be violating the statutory prohibitions against subsistence hunting of migratory game birds; the decision below addressed only the authority of the FWS to enter into cooperative agreements the terms of which allegedly violate those statutes. See Pet. App. 13-14. Thus, the decision below will have little, if any, effect on the Alaskan Natives in these 200 villages or on the waterfowl to which petitioners refer, and nothing in the decision below affects the FWS's ability to accommodate the needs of Alaskan Natives or the preservationist policies respecting migratory birds. 2. Petitioners also err in suggesting (Pet. 18-20) that the decision below conflicts with this Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The decision in Chevron explained that, "when a court reviews an agency's construction of the statute which it administers, " the court "must give effect to the unambiguously expressed intent of Congress" (467 U.S. at 842-843 (footnote omitted)); but where "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute" (id. at 843 (footnote omitted)). The court below faithfully followed these principles. It determined (Pet. App. 23) that the AGL's relationship to the MBTA is ambiguous: The text and legislative history of the AGL are ambiguous with respect to whether Congress intended in that statute to preclude the Secretary from promulgating regulations that would prohibit Native Alaskans in need of food from taking any migratory game birds; likewise, the text and legislative history are ambiguous with respect to whether Congress intended Section 16 of the AGL to constitute an implied repeal of the MBTA insofar as it applies to the State of Alaska. Faced with these ambiguities in congressional intent, the court below looked to the FWS's interpretation of the statute and found that interpretation to be quite reasonable. While petitioners obviously disagree with the court of appeals' (and with the FWS's) resolution of these questions, there is no basis for suggesting that the court below failed to follow the analysis required by the Chevron decision. 3. Petitioners also err in suggesting (Pet. 21-23) that the court below issued an advisory opinion with respect to whether the FWIA requires the Secretary to ensure that his regulations comply with the provisions of all four of the treaties that the United States has signed concerning the protection of migratory birds. The appellant in this case was the Fund; it argued in the district court that the statutes protecting migratory birds bar closed season hunting of migratory game birds by Alaskan Natives. While the district court declined to reach this question (because it found that the AGL repealed these statutory provisions to the extent that they applied to Alaska), the case was resolved on cross motions for summary judgment. Appellants thus reasserted on apeal their claim that the statutes protecting migratory birds bar such subsistence hunting. See Pltf.-Appellants' Br. vii. The FWIA, of course, supplements those statutes, and the court of appeals could not decide the question presented without resolving whether the FWIA authorizes closed season hunting of migratory game birds by Alaskan Natives. The answer to that question, however, turns on whether the Secretary's regulations must comply with the Canadian treaty, which prohibits spring and summer hunting, or just with the Soviet-American treaty, which allows subsistence hunting during the spring and summer months. /6/ Petitioners' claim that the court of appeals could have decided the question presented without resolving this latter issue is therefore without merit -- and is not in any event a claim that would suggest that the court of appeals' judgment warrants this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General ROGER J. MARZULLA Acting Assistant Attorney General EDWARD J. SHAWAKER J. CAROL WILLIAMS Attorneys MARCH 1988 /1/ In addition to the Canadian convention, the MBTA and related statutes implement hunting conventions with Mexico, Japan, and the Soviet Union. See 16 U.S.C. 703 et. seq.; 16 U.S.C. 712, 715j. The four treaties differ considerably with respect to the issue in this case -- i.e., with respect to subsistence hunting by Native Alaskans. /2/ Section 3 of the MBTA provided that implementing regulations would become effective when approved by the President. See 16 U.S.C. 704. Thus, from 1918 until 1950, MBTA regulations were issued by Presidential proclamation. In 1951, however, the President empowered the Secretary of the Interior to promulgate regulations without prior approval, ratification, or other action of the President. See Exec. Order No. 10,250, 3 C.F.R. 755 (1949-1953 Comp.). /3/ Regulation 4 (40 Stat. 1814) provides, in pertinent part: The open seasons for waterfowls (except wood ducks, eider ducks, and swans) coot, gallinules, and Wilson snipe or jacksnipe shall be as follows: * * * * * In Alaska the open season shall be from September 1 to December 15. /4/ Regulation 7 (40 Stat. 1816) provides: In Alaska Eskimos and Indians may take for the use of themselves and their immediate families, in any manner and at any time, and possess and transport auks, auklets, guillemots, murres, and puffins and their eggs for food, and their skins for clothing. /5/ This provision was amended by the Act of October 10, 1940, ch. 845 54 Stat. 1103-1104, to permit Alaskan Natives to take birds and animals out-of-season "when * * * in need of food and other sufficient food is not available." /6/ Contrary to petitioners' suggestion (Pet. 21), this issue was briefed by the parties on appeal. See Fed. Deft. Br. 12; State Br. 9, 19-20; Intervenor Br. 17-19, 45; Fund Reply Br. 13-15.