ENVIRONMENTAL LAW
United States Court of Appeals for the Ninth Circuit (2025)
Mike Galane
In State, Department of Fish & Game v. Federal Subsistence Board 139 F.4th 773 (9th Cir. 2025), the United States Court of Appeals for the Ninth Circuit held that ANILCA provides the Federal Subsistence Board the power to authorize an emergency subsistence hunt on federal public lands (Id. at 778). In April 2020, the Federal Subsistence Board authorized a subsistence hunt, known as the “Kake hunt,” on federal public lands for the Organized Village of Kake because the COVID-19 pandemic significantly diminished their food supply. (Id. at 777). The Federal Subsistence Board initially requested the State’s view on the Tribe’s request but received no response. (Id. at 780). The Federal Subsistence Board then authorized the hunt based on Section 811 of the Alaska National Interests Lands Conservation Act (ANILCA). (Id.). This federal law states that the Board “shall ensure that rural residents engaged in substance uses shall have reasonable access to subsistence resources on public lands.” (Id. at 781). The Alaska Department of Fish & Game sued. They argued that ANILCA allows the Federal Subsistence Board to provide physical access to federal lands but not access to subsistence resources like wildlife located on federal lands. (Id. at 781). The United States Court of Appeals for the Ninth Circuit rejected the Department of Fish & Game’s arguments. (Id. at 782). The United States Court of Appeals for the Ninth Circuit reasoned that Section 811 of ANILCA’s clear language granting “access to subsistence resources on public lands” authorized the hunting of wildlife on federal lands, not just physical access to the federal lands on which the wildlife lives. (Id.). Additionally, the United States Court of Appeals for the Ninth Circuit ruled that the ANILCA allows the Federal Subsistence Board, when the State has not acted, to authorize subsistence hunts on federal land when there are no practical alternative means to replace diminished food supplies. (Id. at 785). Accordingly, the United States Court of Appeals for the Ninth Circuit held that ANILCA provides the Federal Subsistence Board the power to authorize an emergency subsistence hunt on federal public lands. (Id. at 778).
