You Can’t Let Nature Run Wild: Predator Control in Alaska

Posted on March 28, 2017 by Peter Van Tuyn

Seeking to explain Alaska’s aggressive predator control policies, Alaska Governor Wally Hickel famously said in the early 1990s that “you can’t let nature run wild.”  In Alaska this means that wildlife management is focused on maximizing the number of some human prey species such as deer, caribou and moose, by allowing the killing of bears and wolves that also prey on those animals.  A majority in the current United States Congress apparently agree with Alaska’s predator control approach to wildlife management, at least as it might apply in our nation’s largest national wildlife refuges within Alaska’s borders. 

Congress this week sent to the president’s desk a Congressional Review Act resolution rejecting a 2016 U.S. Fish and Wildlife Service rule that banned aggressive state sport hunting practices designed to reduce populations of predators on state land.  The rule banned just the most egregious of these practices on the roughly 77 million acres of national wildlife refuge land in Alaska. 

The Congressional Review Act is a legislative instrument which Congress can use to reject in the whole recently-passed federal rules.  This blunt “up or down” action is not subject to filibuster in the Senate, and if a rule is rejected through this process agencies are prohibited from passing “substantially similar” rules in the future.  Prior to the 115th Congress the Congressional Review Act had only successfully been used once before, to reject a Clinton Administration workplace ergonomics rule in the early days of the George W. Bush Administration.  Based on this history and the flurry of recent resolutions, it seems the primary and perhaps sole utility of the Act is during a change in administration from Democrat to Republican, when Republicans have a majority in both chambers of Congress. 

The resolution sponsors argued that the FWS rule impinged on Alaska’s sovereign ability to manage wildlife within its borders as it sees fit.  Supporters of the rule pointed out that the rule’s focus is only on the most extreme predator control practices and that to allow such practices on refuge lands is inhumane, is aimed at upsetting the natural balance of special ecosystems and in any event is not proven effective at meeting the goal of increasing game populations.  The resolution passed both chambers largely along party lines, and the president is expected to sign it. 

Alaska has long pushed aggressive predator control practices.  In some instances, Alaska’s rules allow the take of adult bears and cubs that are lured by bait, and of wolves and pups in their dens; methods that have elsewhere been rejected as unfair, inhumane and ineffective at increasing game populations.  Alaska permits such practices, even when doing so might otherwise seem to go against its interests.  For example, one of the great draws for the hundreds of thousands of annual visitors to Denali National Park is the wildlife that can be seen in its wide-open landscapes, including wolves that spend time near the road through the Park.  Alaska, however, allows the killing of those wolves on the Park’s north and east boundaries, for the benefit of one to three trappers in any given year.  According to a local group, the effect of the decline of wolf packs that den inside the park is a reduction in the likelihood of visitors seeing wolves along the road from 45% in 2010 to 5% in 2015. 

From a pure economic perspective, one would think that the value to Alaska of live wolves in Denali would far exceed that of wolves killed over the border.  But those who make the rules today, like Gov. Hickel before them, apparently don’t want to let nature run wild.


More Chinks in the Permit Shield Armor

Posted on September 24, 2014 by Eric Fjelstad

The history of the Clean Water Act (CWA) permit shield provision was recently addressed in a blog post by David Buente on July 31, 2014.  This post covers an update on one of the referenced cases that was pending before the Ninth Circuit Court of Appeals.  The case Alaska Community Action on Toxics v. Aurora Energy Services, LLC (“ACAT”) involved a facility in Seward, Alaska that conveyed coal onto ships where it was exported into international markets.  The facility had been covered under the Multi-Sector General Permit (“MSGP”) since the mid-1980s.  The MSGP authorized the discharge of stormwater and also identified eleven categories of non-stormwater discharges which were authorized under the MSGP.  None of these categories covered discharges of coal.

The plaintiffs filed a CWA citizens suit in early 2010 alleging that coal was discharged from a conveyor into the ocean during ship loading operations and that these discharges were not covered under the MSGP.  The alleged discharges involved small chunks of coal falling from the underside of the conveyor belt on the “return” trip and incidental dust or chunks unintentionally released during the loading of ships.  The district court granted summary judgment in favor of the facility, applying the principles in  Piney Run Pres. Ass’n v. City Comm’rs, 268 F.3d 255 (4th Cir. 2001).

On appeal, the Ninth Circuit reversed, holding that the MSGP did not cover discharges of coal.  The court found that all non-stormwater discharges were prohibited except those identified in the list of eleven permissible non-stormwater discharges.  The Ninth Circuit’s decision is most striking for what it does not say.  First, there is no discussion in the opinion of the fact that the permittee had, in fact, disclosed its coal discharges during the permitting process.  Second, the court places no weight - indeed, did not even mention - the fact that EPA and its state counterpart actively oversaw the facility, including its discharges of coal.  In contrast, the district court specifically found that all the relevant parties - EPA, the Alaska Department of Environmental Conservation (“ADEC”), and the permittee - viewed the MSGP as extending to discharges of coal.  As the district court found, “the discharges were not only ‘reasonably contemplated’ by EPA, but were actively regulated by the agencies under the General Permit.”

The Ninth Circuit’s decision in ACAT should make any MSGP permittee shudder since it suggests that many facilities may not be properly permitted.  Specifically, if a non-stormwater discharge is not identified on the list of permissible non-stormwater sources, ACAT suggests that discharge is not covered by the MSGP.  The case also reaffirms the point that reliance on agency communications and “course-of-dealing” with agencies can be a perilous exercise.

Time will tell whether the ACAT court’s analysis will be applied outside of the MSGP context to IPs and other GPs.  In the meantime, when considering permit shield issues, permittees and their counsel would be wise to carefully focus on the language of permits and what a permit purports to cover (and not cover).