State of Alaska Department of v. Federal Subsistence Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF ALASKA No. 22-35097
DEPARTMENT OF FISH AND
GAME, D.C. No.
Plaintiff-Appellant, 3:20-cv-00195-
SLG
v.
FEDERAL SUBSISTENCE BOARD; OPINION
DAVID SCHMID, in his official
capacity as the Regional Supervisor
for the United States Forest Service;
SONNY PERDUE, in his official
capacity as the United States Secretary
of Agriculture; GENE PELTOLA, in
his official capacity as Alaska
Regional Director, Bureau of Indian
Affairs; GREGORY SIEKANIEC, in
his official capacity as Alaska
Regional Director, United States Fish
and Wildlife Service; CHAD
PADGETT, in his official capacity as
State Director for Alaska, United
States Bureau of Land Management;
DON STRIKER, in his official
capacity as Alaska Regional
Supervisor, National Park Service;
DAVID BERNHARDT, in his official
capacity as the United States Secretary
2 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
of the Interior; ANTHONY
CHRISTIANSON, in his official
capacity as Chair of the Federal
Subsistence Board; CHARLIE
BROWER, in his official capacity as
Member of the Federal Subsistence
Board; RHONDA PITKA, in her
official capacity as Member of the
Federal Subsistence Board,
Defendants-Appellees,
and
ORGANIZED VILLAGE OF KAKE,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, Chief District Judge, Presiding
Argued and Submitted December 9, 2022
San Francisco, California
Filed March 14, 2023
Before: Jacqueline H. Nguyen and Lucy H. Koh, Circuit
Judges, and Stephen R. Bough, * District Judge.
Opinion by Judge Bough
*
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 3
SUMMARY **
Alaska National Interest Lands Conservation
Act/Mootness
The panel reversed in part and vacated in part the district
court’s decision in an action challenging the Federal
Subsistence Board’s approval in 2020 of two short-term
changes to hunting practices on federal public lands in
Alaska, specifically (1) the Board’s opening of an
emergency hunt for Intervenor, the Organized Village of
Kake; and (2) the Board’s partial temporary closure of public
lands in game management Unit 13 to nonsubsistence users.
The State of Alaska Department of Fish and Game
brought this action against the Board and several federal
officials, alleging that the changes violated the Alaska
National Interest Lands Conservation Act (“ANILCA”) and
the Administrative Procedure Act. Before the district court
issued its decision, the Kake Hunt ended, and the district
court deemed the challenge to it moot. And while this
appeal was pending, the partial Unit 13 closure expired.
The panel first held that Alaska’s claim that the Board
violated ANILCA by opening the 60-day emergency Kake
hunt without statutory authority was not moot because it fit
within the mootness exception of being capable of repetition
yet evading review. First, there was evidence that the Board
had opened emergency hunts in the past. Second, the
regulation under which the Board authorized the Kake hunt
remained in effect. Finally, the public interest in having the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
legality of the practices settled militated against a mootness
conclusion. Alaska’s claim that ANICLA did not authorize
the federal government to open emergency hunting seasons
raised a question of first impression in this circuit and
required resolution of complicated issues of statutory
interpretation. Noting that the district court had not reached
the merits, the panel remanded this claim to the district court.
With regard to Alaska’s partial Unit 13 closure claim, the
panel vacated the part of the district court’s order that
addressed the claim and remanded with instructions to
dismiss that claim as moot. From the regulations and record,
it was clear that the Board would rely on new facts and
analysis in responding to any future temporary closure
request.
COUNSEL
Laura Wolf (argued) and Cheryl R. Brooking, Assistant
Attorneys General, Office of the Alaska Attorney General,
Anchorage, Alaska, for Plaintiff-Appellant.
Kevin W. McArdle (argued), Rachel Heron, Shannon
Boylan, and Paul A. Turcke, Attorneys, Environment and
Natural Resources Division; Todd Kim, Assistant Attorney
General; United States Department of Justice; Washington,
D.C.; Kenneth M. Lord, Attorney, United States Department
of the Interior, Washington, D.C.; for Defendants-Appellees.
Whitney A. Leonard (argued), Richard D. Monkman, and
Lloyd B. Miller, Sonosky Chambers Sachse Miller &
Monkman, Anchorage, Alaska; Eric C. Dougherty Lynch,
Megan R. Condon, Maggie Massey, Heather Kendall Miller,
and Matthew N. Newman, Native American Rights Fund,
Anchorage, Alaska; for Defendant-Intervenor-Appellee.
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 5
James H. Lister and Brian V. Gerd, Birch Horton Bittner &
Cherot PC, Washington, D.C., for Amicus Curiae Alaska
Outdoor Council.
OPINION
BOUGH, District Judge:
In 2020, the Federal Subsistence Board (“FSB”)
approved two short-term changes to hunting practices on
federal public lands in Alaska. First, the FSB opened an
emergency hunt for Intervenor, the Organized Village of
Kake (“Kake hunt”). Second, the FSB instituted a partial,
temporary closure of public lands in game management Unit
13 to nonsubsistence users (“partial Unit 13 closure”).
Plaintiff-Appellant State of Alaska Department of Fish and
Game (“Alaska”) brought this action against Defendants-
Appellees, the FSB and several federal officials, alleging
that the changes violated the Alaska National Interest Lands
Conservation Act (“ANILCA”) and the Administrative
Procedure Act (“APA”). 1 We have jurisdiction under 28
U.S.C. § 1291.
Before the district court issued its decision, the Kake
Hunt ended, and the district court deemed the challenge to it
moot. We review a dismissal for mootness de novo. See
Am. Diabetes Ass’n v. United States Dep’t of the Army, 938
F.3d 1147, 1151 (9th Cir. 2019). While this appeal was
1
Alaska also claimed that the FSB violated the Open Meetings Act in
various ways, including by delegating rulemaking authority without
allowing public observation. Alaska does not raise this cause of action
on appeal, and it is therefore forfeited. See Orr v. Plumb, 884 F.3d 923,
932 (9th Cir. 2018).
6 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
pending, the partial Unit 13 closure expired. We are
therefore obligated to address mootness as to the partial Unit
13 closure for the first time here. See Renee v. Duncan, 686
F.3d 1002, 1016 (9th Cir. 2012). We reverse in part, vacate
in part, and remand.
I. BACKGROUND
Under ANILCA, the federal government, through the
FSB, manages subsistence uses of fish and wildlife on
federal public lands in Alaska. See Ninilchik Traditional
Council v. United States, 227 F.3d 1186, 1189 (9th Cir.
2000); see also 50 C.F.R. § 100.10(a). The FSB has
regulatory authority to enact special actions to open and
close hunting on public lands. See 50 C.F.R. § 100.19; 36
C.F.R. § 242.19. In emergency situations, the FSB may
immediately open or close hunting on public lands for up to
60 days, if necessary for certain permissible reasons. See 50
C.F.R. § 100.19(a); 36 C.F.R. § 242.19(a). The FSB may
also temporarily open or close hunting on public lands for
longer periods, not to exceed the current regulatory cycle.
See 50 C.F.R. § 100.19(b); 36 C.F.R. § 242.19(b). However,
those temporary special actions require adequate notice and
public hearing. See 50 C.F.R. § 100.19(b); 36 C.F.R. §
242.19(b).
Alaska brought this action to challenge the FSB’s
approval of two special action requests.
First, in early 2020, with the onset of the COVID-19
pandemic, the FSB received numerous emergency special
action requests from subsistence users related to food
security concerns. The Organized Village of Kake, a
federally recognized tribe, submitted a special action request
for the opening of an emergency season on public lands to
harvest five deer and two moose. The FSB approved the
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 7
request for reasons of public safety, and the Kake hunt was
completed in August 2020.
Second, in February 2020, the FSB received a temporary
special action request from an Alaskan resident to close all
public lands in game management Unit 13 to caribou and
moose hunting for nonsubsistence uses during the 2020
season. 2 The special action request asserted that a closure
was necessary to address public safety concerns related to
hunting practices in the unit as well as the impact of those
practices on subsistence hunting. The FSB received
analyses and recommendations from the Office of
Subsistence Management and the Interagency Staff
Committee. The FSB also held a public hearing for
comments and testimony from interested parties. In July
2020, the FSB approved the temporary special action
request, with modifications, finding it was necessary for the
continuation of subsistence uses and for public safety. The
FSB limited the closure to subunits 13A and 13B because it
was in those areas where the most overcrowding, disruption
of hunts, and safety concerns had occurred. The FSB
granted the partial closure for two years to reduce
administrative burdens associated with processing additional
requests. The partial Unit 13 closure expired on June 30,
2022.
On August 10, 2020, Alaska filed suit against the FSB
and several federal officials alleging that the special action
decisions violated ANILCA and APA. The district court
granted the Organized Village of Kake’s motion to intervene
2
Federal regulation divides Alaska into twenty-six game management
units. See 50 C.F.R. § 100.4. “Nonsubsistence uses” here refers to
hunting that does not qualify as “subsistence uses” by “rural Alaska
residents” under Section 803 of ANILCA. 16 U.S.C. § 3113.
8 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
and denied Alaska’s motions for a temporary restraining
order and a preliminary injunction.
The district court issued its final decision in December
2021. Dep’t of Fish & Game v. Fed. Subsistence Bd., 574 F.
Supp. 3d 710 (D. Alaska 2021). The district court found
Alaska’s Kake hunt claims moot because the hunt had been
completed and the claims did not fit within the “capable of
repetition, yet evading review” exception to the mootness
doctrine. As for Alaska’s claims challenging the partial Unit
13 closure, the district court found that the FSB did not act
arbitrarily or capriciously when it determined that the partial
closure was necessary for the continuation of subsistence
uses and for public safety, and that extending the partial
closure for a two-year period was consistent with
regulations. Alaska timely appealed.
II. ANALYSIS
“Judicial review of administrative action, like all
exercises of the federal judicial power, is limited by the
requirement that there be an actual, live controversy to
adjudicate.” Campesinos Unidos, Inc. v. U.S. Dep’t of Lab.,
803 F.2d 1063, 1067 (9th Cir. 1986). Here, the Kake hunt is
complete, and the partial Unit 13 closure has expired.
Alaska implicitly acknowledges that its claims are moot but
argues they may still be reviewed because they are capable
of repetition and would otherwise evade review.
“Generally, an action is mooted when the issues
presented are no longer live and therefore the parties lack a
legally cognizable interest for which the courts can grant a
remedy.” Alaska Ctr. For Env’t v. U.S. Forest Serv., 189
F.3d 851, 854 (9th Cir. 1999). However, we may decline to
dismiss an otherwise moot action if the challenged conduct
is “capable of repetition, yet evading review.” This
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 9
exception to the mootness doctrine is met when “(1) the
duration of the challenged action is too short to allow full
litigation before it ceases or expires, and (2) there is a
reasonable expectation that the plaintiffs will be subjected to
the challenged action again.” Karuk Tribe of Cal. v. U.S.
Forest Serv., 681 F.3d 1006, 1018 (9th Cir. 2012). The
plaintiff has the burden of showing that the exception
applies. See Native Vill. of Nuiqsut v. Bureau of Land
Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021) (explaining that
unlike the initial mootness question, where the defendants
have the burden, the plaintiff has the burden of showing that
there is a reasonable expectation that they will once again be
subjected to the challenged activity).
A. Kake Hunt
Alaska challenges the district court’s mootness
determination as to only one of its claims related to the Kake
hunt: that ANILCA does not authorize the federal
government to open emergency hunting seasons. 3 Alaska
argues that claim is excepted from mootness because the
opening of an emergency hunt is capable of repetition and
will evade review. We agree.
An issue evades review if the underlying action will
almost certainly run its course before full litigation can be
completed. See Biodiversity Legal Found. v. Badgley, 309
F.3d 1166, 1173 (9th Cir. 2002). The FSB’s authorization
for the emergency hunt was limited to the 60 days permitted
under the regulations. See 50 C.F.R. § 100.19(a); 36 C.F.R.
§ 242.19(a). We have determined that actions of longer
3
This claim appears in Alaska’s complaint as its second claim for relief.
Alaska’s other claims for relief related to the Kake hunt are not raised in
the opening brief, and so are forfeited. See Orr, 884 F.3d at 932.
10 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
duration evade review. See e.g., Native Vill. of Nuiqsut, 9
F.4th at 1209 (winter exploration program lasting five
months evaded review); Nat. Res. Def. Council, Inc. v.
Evans, 316 F.3d 904, 910 (9th Cir. 2003) (one-year time
span for challenged specifications too short to allow for full
litigation). Neither the government nor the Organized
Village of Kake challenge this conclusion. The first prong
of the mootness exception is satisfied.
Turning to the “capable of repetition” prong, Alaska
must show that there is “some indication that the challenged
conduct will be repeated.” Alaska Ctr. For Env’t, 189 F.3d
at 856. The FSB argues, and the district court concluded,
that there was no reasonable likelihood that the FSB would
again approve an emergency special action like the Kake
hunt because the conditions of the COVID-19 pandemic
have changed. This framing of the challenged action is too
narrow. See Cal. Energy Res. Conservation & Dev. Comm’n
v. Bonneville Power Admin., 754 F.2d 1470, 1473 (9th Cir.
1985) (finding that defendant characterized “too narrowly”
the type of action challenged); see also Alaska Ctr. For
Env’t, 189 F.3d at 856-57 (explaining that issue was not
whether the exact same permit would be issued again, but
whether the agency would issue other permits like the one
challenged).
In its complaint, Alaska broadly asserted that ANILCA
does not confer statutory authority on the federal
government, including the FSB, to open emergency hunting
seasons. That claim is not based on the particular
circumstances of the Kake hunt, including the status of the
COVID-19 pandemic. Rather, it challenges the FSB’s
general action of opening an emergency hunt. See
Greenpeace Action v. Franklin, 14 F.3d 1324, 1329-30 (9th
Cir. 1992) (“major issue” of whether the agency had
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 11
adequately examined the effects of fishing on sea lions was
likely to recur).
Based on the evidence provided by Alaska, we conclude
that there is a reasonable expectation that this challenged
action will recur. First, there is evidence that the FSB has
opened emergency hunts in the past. See Alcoa, Inc. v.
Bonneville Power Admin., 698 F.3d 774, 787 (9th Cir. 2012)
(“[T]he challenged conduct is capable of repetition where
there is evidence that it has occurred in the past . . . .”). In
2018, in response to a localized food shortage caused by a
power outage, the FSB approved a special action request for
an emergency moose hunt. In 2020, in response to the
COVID-19 pandemic and associated food security concerns,
the FSB received 11 special action requests for emergency
hunts, approving one of them, the Kake hunt. This shows
more than a “mere physical or theoretical possibility” that
the FSB will again approve the opening of an emergency
hunt in the future. See Murphy v. Hunt, 455 U.S. 478, 482
(1982).
In addition, the regulation under which the FSB
authorized the Kake hunt remains in effect, and the FSB has
made no commitment not to rely on the regulation in the
future. Compare Brach v. Newsom, 38 F.4th 6, 13, 15 (9th
Cir. 2022) (en banc) (finding no reasonable expectation of
recurrence when state publicly renounced pursuing the
challenged action in the future) with Native Vill. of Nuiqsut,
9 F.4th at 1212 (holding that continued reliance on an
environmental report “would likely allow Plaintiffs to show
that their claims were ‘capable of repetition’”).
Finally, “public interest in having the legality of the
practices settled, militates against a mootness conclusion.”
United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953).
12 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
Whether ANILCA provides the federal government with
authority to open these emergency hunts is a question of first
impression in this court. 4 Until the issue is settled, the State
and FSB may be unable to effectively manage and conserve
wildlife populations. See Alaska Fish & Wildlife Fed’n &
Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 939 (9th Cir.
1987) (finding a strong public interest mitigating against
mootness where uncertainty as to which laws governed
subsistence hunting of migratory game birds in Alaska could
make it impossible to address the migratory birds’
population decline); see also Greenpeace Action, 14 F.3d at
1330 (finding a continuing public interest in determining the
standards governing the decision to authorize a certain level
of pollock fishing in the Gulf of Alaska). These emergency
action requests arise out of unpredictable situations that need
immediate attention. Clarifying the FSB’s authority to act
in those situations will further the public interest.
Alaska’s claim that the FSB violated ANILCA by
opening the Kake hunt without statutory authority fits within
the mootness exception. The district court did not reach the
merits of this claim. “In general, an appellate court does not
decide issues that the trial court did not decide.” Planned
Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t of
Health & Hum. Services, 946 F.3d 1100, 1110 (9th Cir.
2020). But this rule is “not inflexible,” and the appellate
court has discretion to address a claim in the first instance
4
We disagree with Defendants-Appellees’ argument that John v. United
States, 1994 WL 487830 (D. Alaska Mar. 30, 1994), already resolved
this issue. That case considered the basic question of whether the federal
government has any authority to manage the ANILCA subsistence
priority. Id. at *9. But it did not reach the issue raised in this case of the
parameters of that authority. See State of Alaska v. Babbitt, 72 F.3d 698,
700 n.2 (9th Cir. 1995).
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 13
“if the question is a purely legal one and the record has been
fully developed prior to appeal.” See Quinn v. Robinson,
783 F.2d 776, 814 (9th Cir. 1986).
Assuming we have discretion here, we decline to
exercise it. Alaska’s claim raises a question of first
impression in this circuit and requires resolution of
complicated issues of statutory interpretation. See Merritt v.
Countrywide Fin. Corp., 759 F.3d 1023, 1035 (9th Cir.
2014) (declining to decide in the first instance a question that
raised complicated issues of statutory interpretation and
administrative law of first impression). We therefore
remand this claim to the district court.
B. Partial Unit 13 Closure
We next turn to Alaska’s challenge to the FSB’s partial
temporary closures within game management Unit 13. The
parties agree that the FSB has authority to close hunting, but
disagree about whether, in this instance, the FSB’s closure
determination was adequate. We must first decide whether
we have jurisdiction over Alaska’s challenge given that the
partial Unit 13 closure expired in June 2022. See Renee, 686
F.3d at 1016. Alaska argues its claim is excepted from
mootness because it is capable of repetition, yet will evade
review. We disagree.
The two-year closure is of a limited duration sufficient
to meet the first prong of the mootness exception. See Karuk
Tribe of California, 681 F.3d at 1018 (“We have repeatedly
held that [activities impacting the environment] lasting only
one or two years evade[s] review.”); Alaska Ctr. For Env’t,
189 F.3d at 855 (duration of two-year permit too short to
allow for full litigation before expiration of permit). The
FSB contends that this action would not have evaded review
if Alaska had acted more promptly, including seeking
14 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
expedited review. But requesting expedited review is not a
prerequisite for application of this mootness exception. Id.
at 856 (“There is no authority in this circuit for concluding
that the repetition/evasion exception is inapplicable when
the parties fail to seek expedited review under circuit
rules.”). And even if Alaska had sought and been granted
expedited proceedings, there would have been no guarantee
that full judicial review would have occurred before the
partial Unit 13 closure expired. The first prong of the
mootness exception is, therefore, satisfied.
The second prong of the mootness exception requires
that Alaska show it is likely to suffer “the same or very
similar harm” by the FSB. Alcoa, Inc., 698 F.3d at 786. We
have previously found the “capable of repetition”
component to be met where an agency will rely on the same
biological opinion or environmental report to inform its
future actions. See Greenpeace Action, 14 F.3d at 1330(same challenged action likely to recur where the agency
was relying on the same biological opinion in support of the
same determination the following year); see also Native Vill.
of Nuiqsut, 9 F.4th at 1210 (noting that when “same report”
will be used “in approving a future project . . . the case is not
moot”). In contrast, where the agency will base future
decisions on a new report with different facts and analysis,
we have found that there is no reasonable expectation of
repetition. See Idaho Dep’t of Fish & Game v. Nat’l Marine
Fisheries Serv., 56 F.3d 1071, 1075 (9th Cir. 1995) (holding
there is no reasonable expectation of repetition when agency
would be relying on a new biological opinion in the future);
Native Vill. of Nuiqsut, 9 F.4th at 1212 (finding that plaintiffs
had not met their burden in showing a reasonable
expectation that they would be subjected to challenged
action again where future actions would rely on new
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 15
information). Moreover, when future decisions will be
based on different criteria, factors, or methods, we have also
found no reasonable expectation of repetition. See Ramsey
v. Kantor, 96 F.3d 434, 446 (9th Cir. 1996) (challenge not
capable of repetition “where an agency will be basing its
rulings on different criteria or factors in the future”).
Alaska argues that the FSB will once again close public
lands in Unit 13 to nonsubsistence users for reasons similar
to those cited for its 2020 decision. The temporary special
action regulations that govern the FSB’s closure of public
lands undercut Alaska’s argument. See generally 50 C.F.R.
§ 100.19(b); 36 C.F.R. § 242.19(b). To start, those
regulations require the FSB to provide a new “public
hearing” and, therefore, to accept new rounds of public
comment, for each proposed temporary closure. 50 C.F.R.
§ 100.19(b); 36 C.F.R. § 242.19(b). They also require
consultation for each proposed temporary closure “with the
State of Alaska and the Chairs of the Regional Councils of
the affected regions,” inevitably resulting in more new
information for the FSB to consider. 50 C.F.R. §
100.19(b)(1)(ii); 36 C.F.R. § 242.19(b)(1)(ii). Moreover,
under the regulations, the FSB is obligated to analyze new
factual information for each proposed temporary closure
because the Board must determine that the proposed
temporary closure “will not interfere with the conservation
of healthy fish and wildlife populations, will not be
detrimental to the long-term subsistence use of fish and
wildlife resources, and is not an unnecessary restriction on
nonsubsistence users.” 50 C.F.R. § 100.19(b)(1); 36 C.F.R.
§ 242.19(b)(1). Finally, the regulations require that the FSB
limit the proposed temporary closure “to the minimum time
period or harvest limit determined by the Board to be
necessary under the circumstances,” which again results in
16 STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD.
the FSB considering a new set of facts and conducting new
analysis for each proposed temporary closure. 50 C.F.R.
§ 100.19(b)(2); 36 C.F.R. § 242.19(b)(2). Thus, although
Alaska argues that the FSB may start to “rubberstamp”
closure requests, the regulations governing temporary
closures belie that claim.
The record in this case exemplifies why Alaska’s claim
lacks merit. In processing the 2020 special action request,
the FSB incorporated information from its consideration of
prior Unit 13 closure requests in 2002 and 2019. But,
consistent with the governing regulations, the FSB also held
a new hearing, accepted new staff analysis and
recommendations, and considered new data on Unit 13,
including new information about animal population size and
composition, harvest success rates, permit usage, and
more. That new information resulted in the Board adopting
a more targeted closure than requested or considered in
2019. In other words, the FSB based its 2020 approval on
the entire record, including new information and analysis not
previously available or considered in prior years. Compare
Idaho Dep’t of Fish & Game, 56 F.3d 1071, 1075 (9th Cir.
1995) (holding there is no reasonable expectation of
repetition when agency would be relying on a new biological
opinion in the future), with Nat. Res. Def. Council, Inc., 316
F.3d at 910 (reasonable expectation that same issue will
recur where agency repeated “the same rationale . . . year
after year”).
From the regulations and record, then, it is clear that the
FSB will rely on new facts and analysis in responding to any
future temporary closure request. Indeed, if the FSB does
consider a request to temporarily close all or part of Unit 13
in the future, it is clear that one entirely new and significant
part of its deliberations will concern the effects of the partial
STATE OF AK DEP'T OF FISH AND GAME V. FED. SUBSISTENCE BD. 17
Unit 13 closure in 2020 through 2022. Our conclusion does
not change simply because the FSB may consider data from
its deliberations regarding prior Unit 13 temporary closure
requests. Given all this, we conclude that the second prong
of the mootness exception is not met. Cf. Native Vill. of
Nuiqsut, 9 F.4th at 1210 (“Our precedent has focused on
whether the environmental report at issue is confined to the
challenged action only, or whether the agency will use that
same report in approving a future project. If the latter is true,
then the case is not moot.”).
Accordingly, the challenge to the FSB decision to
partially close Unit 13 is moot. We vacate the district court’s
decision in part as to that claim and remand with instructions
to dismiss it as moot. See All. for the Wild Rockies v. Savage,
897 F.3d 1025, 1032 (9th Cir. 2018) (“When mootness is not
caused by actions of the party seeking vacatur, we typically
will vacate the district court’s order.”); see also City & Cnty
of San Francisco v. Garland, 42 F.4th 1078, 1088 (9th Cir.
2022) (explaining that partial vacatur of a lower opinion can
be appropriate).
III. CONCLUSION
We reverse the district court’s dismissal of Alaska’s
claim that the FSB did not have authority to open the Kake
hunt and remand that claim to the district court for further
proceedings consistent with this opinion. With regard to
Alaska’s partial Unit 13 closure claim, we vacate the part of
the district court’s order that addresses the claim and remand
with instructions to dismiss that claim as moot. Each party
shall bear its own costs.
REVERSED in part; VACATED in part;
REMANDED.