Native Village of Eyak v. Gary Locke

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIVE VILLAGE OF EYAK; NATIVE 

VILLAGE OF TATITLEK; NATIVE

VILLAGE OF CHENEGA; NATIVE

VILLAGE OF NANWALEK; NATIVE No. 09-35881

VILLAGE OF PORT GRAHAM,

Plaintiffs-Appellants,  D.C. No. 3:98-cv-00365-HRH v. OPINION REBECCA BLANK, Acting Secretary of Commerce, Defendant-Appellee.  Appeal from the United States District Court for the District of Alaska H. Russel Holland, Senior District Judge, Presiding

Argued and Submitted September 21, 2011—San Francisco, California

Filed July 31, 2012

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder, Harry Pregerson, Andrew J. Kleinfeld, Michael Daly Hawkins, Sidney R. Thomas, William A. Fletcher, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, and Richard R. Clifton, Circuit Judges.

Per Curiam Opinion; Dissent by Judge W. Fletcher COUNSEL

Natalie A. Landreth (argued), Native American Rights Fund, Anchorage, Alaska; Goriune Dudukgian, Alaska Legal Ser- vices Corp., Anchorage, Alaska; Richard de Bobo, Robin Wechkin, Susan Acquista and Clive McClintock, Hogan &…

with whom PREGERSON, THOMAS, and RAWLINSON, Circuit Judges, join, and with whom HAWKINS, Circuit Judge, joins as to Part I, dissenting:

I respectfully dissent.

In an unsigned opinion, the majority concludes that Alaskan Native Villages of Eyak, Tatitlek, Chenega, Nanwalek, and Port Graham (“the Chugach”) failed to establish aboriginal hunting and fishing rights on part of the Outer Continental Shelf (“OCS”) in the Gulf of Alaska because they did not show exclusive use and occupancy of any part of the claimed area. In so doing, the majority misstates the law and misreads plain English.

I would hold, based on the district court’s findings, that the Chugach have established aboriginal hunting and fishing rights in at least part of the claimed area of the OCS, and that these rights are consistent with federal paramountcy. I would reverse and remand with instructions to the district court to find, under the proper legal test, precisely where within the claimed area the Chugach have aboriginal rights.

I. Aboriginal Rights

The Chugach claim that they have the right to exercise nonexclusive hunting and fishing rights in part of the Gulf of Alaska south of Prince William Sound and the…

PER CURIAM Opinion; Dissent by Judge W. FLETCHER.

OPINION

The Alaskan Native Villages of Eyak, Tatitlek, Chenega, Nanwalek and Port *621 Graham (“Villages”) assert that, beginning thousands of years before European contact and continuing through modem times, their members fished, hunted and otherwise exploited portions of the Outer Continental Shelf (“OCS”) in the Gulf of Alaska. Based on this history, the Villages claim they possess non-exclusive aboriginal hunting and fishing rights in the areas of the OCS they’ve traditionally used.

The OCS fisheries are regulated by the Secretary of Commerce. In 1993, the Secretary promulgated regulations limiting access to the halibut and sablefish fisheries after a “race for fish” led to conservation and management problems. See 16 U.S.C. §§ 1801-83 ; 16 U.S.C. §§ 773 -773k; 57 Fed.Reg. 57130, 57130-32 (Dec. 3, 1992); Alliance Against IFQS v. Brown, 84 F.3d 343, 344-45 (9th Cir.1996) (holding that Individual Fishing Quota regulations were a permissible exercise of agency authority to prevent fishery depletion). Prior to the regulations, there was no limit on the number of vessels that could engage in the commercial harvest of halibut or…