Wolf Song of Alaska News

Comments In Opposition to the Alaska Board of Game Proposed Regulations

Priscilla Feral / Friends of Animals / February 24, 2006

Alaska's Board of Game has hastily put together new predator control regulations. The Board did this in light of Friends of Animals' pressure in court which resulted in the aerial wolf-killing scheme being held invalid. In short: The wolves won, so now they want to change the rules.

Aerial-wolf killing is not a private matter to be handled by Alaska's officials alone.

Friends of Animals' position is that the aerial killing of wolves violates not only state law, but also federal law. Indeed, our position is that it violates Constitutional law itself. Here are Friends of Animals' comments on the new proposed predator control regulations.

We'll continue to use all legal and public channels to stop this wrong.

On Proposals 162-166, Adoption of New Predator Control Regulations by the Board of Game, Regarding Compliance with the Federal Airborne Hunting Act

To: State of Alaska, Department of Fish and Game, Juneau, AK

From: Friends of Animals By: Priscilla Feral, President / Lee Hall, Legal Director
Date: 23 February 2006

Re: Proposals 162-166, adopted 25 Feb. 2006 as emergency regulations.

I. Reason and Scope of This Comment and Petition

On 27 January 2006, the Board of Game issued a Notice of Adoption of new regulations for predator control. Point # 4, the reason for the proposed action, marks "compliance with court order" and additionally includes "other: compliance with federal law."

These comments only address the matter of aerial gunning in Alaska in relation to the federal Airborne Hunting Act of 1971[1] (hereinafter "the Act"). The Federal Airborne Hunting Act prohibits shooting or attempting to shoot any animal from an aircraft while airborne or using an aircraft to harass any animal. A principal impetus for the enactment of the federal statute was the concern of Congress about a televised NBC documentary depicting the airborne tracking and shooting of wolves in Alaska and elsewhere. As soon as the law was enacted, Alaska discontinued the practice.

The State has asserted that the aerial wolf control it proposes here is acceptable because it falls under an exemption to the Act. The State has further asserted that the federal Fish and Wildlife Service supports the State's interpretation of the exemption.

We understand that, for a variety of important reasons, deference is due to the federal agency-in this case, the federal Fish and Wildlife Service-charged with administering a federal statute. But deference has limits. This submission asserts the following:

    * The State of Alaska cannot legally conduct its business in ways that run contrary to the U.S. Constitution.

    * The State of Alaska is regulating aerial wolf control in ways that run contrary federal law which pre-empts conflicting state law under the U.S. Constitution' Supremacy Clause, U.S. Const. art VI, cl. 2.

    * We submit that the aerial gunning in Alaska does conflict with federal law, and assert that the State's regulations are illegal as the conduct they purport to allow activities on the part of permit-holders violates federal law.

On these bases, but not limited to them, Friends of Animals opposes the proposed regulations. The proposed regulations would directly affect Friends of Animals membership.[2] The effect would accrue both to the membership in Alaska and to the organization and its entire membership as an entity involved in litigation in Alaska over the topic of these regulations. Friends of Animals is specifically named as being directly affected in the Proposals themselves. The proposed regulations on wolf control, if passed, will affect our members' interests as it will be additionally necessary for Friends of Animals to petition for a repeal of the regulations, pursuant to provisions in the Administrative Procedure Act of the State.[3]

II. Deference to the Department of Fish and Wildlife and Parks Should Be Questioned in the Matter of Aerial Wolf Control; Interpretive Rules Are Needed

To date, deference has been given to a letter from the Acting Assistant Secretary for Fish and Wildlife and Parks.[4] This letter was written in reply to an earlier letter, dated 2 Feb 2004, from Rodger O. Schlickeisen, who asked the federal government to issue interpretive regulations to the State of Alaska regarding wolf control activities carried out under the Act. Subsequently the State (including the Superior Court and, more to the point of these comments, the Board of Game) has treated the substantive issues related to the Act in a generally cursory manner.

The letter from the Acting Assistant Secretary for Fish and Wildlife and Parks stated:

    Under the Act (Subpart B - Prohibitions), exceptions to the general prohibitions of the Act apply to any person who (1) is acting within the scope of his official duties as an employee of the State or the United States to administer or protect or aid in the administration or protection of land, water wildlife [sic], livestock, domesticated animals, human life or crops; or (2) is acting within the limitations of a permit (referred to in the Act). These limitations apply on Federal and State permits. In this case, the permits are being issued by the State of Alaska (Subpart D - State Permits and Annual Reporting requirements) to protect and manage populations of native wildlife. The regulations that address Subpart D state, "except as provided in S. 19.3 ['Relation to other laws'], States may issue permits to persons to engage in airborne hunting or harassing of wildlife for purposes of administering or protecting land, water, wildlife, livestock, domesticated animals, human life or crops. States may not issue permits for the purpose of sport hunting."

    The Alaska Board of Game has elected to use the authority provided to them under the Airborne Hunting Act to reduce wolf populations in Unit 19 D East, to assist in the recovery and management of moose populations within the Unit. The Service has determined that such action is permitted by the Act, and that interpretive regulations are not warranted and would be inconsistent with the intent of the Act. [5]

The letter from the Acting Assistant Secretary for Fish and Wildlife and Parks raises more questions than it puts to rest.

The letter addresses "recovery and management" in Unit 19 D. On 17 January 2006 the Superior Court decided, however, that the "recovery and management" through the permit plan was not soundly based-in any of the five regions-when the letter above was written.[6] In short, whereas the letter was written on the false assumption that wolf control was being carried out legally, the State's regulations to which the above letter refers with approval were illegal.

Moreover, to apply the view of the Acting Assistant Secretary to any regulations promulgated by the Board of Game would defeat the purpose of the Airborne Hunting Act.

These regulations should not be adopted. Interpretive rules are warranted to preclude illegal issuance of future permits by the Board of Game.

III. The Case of United States v. Helsley Does Not Support Alaska's Use of the Airborne Hunting Act's Exemption

The federal Airborne Hunting Act, regulates private conduct, exempting State officials and those to whom the State grants permits.[7] Although that exemption was meant to ensure that the Act does not infringe upon the traditional responsibility of the States,[8] it was not intended to permit states to use aircraft to manipulate predation relationships between naturally occurring species.

United States v. Helsley[9] is the Ninth-Circuit case briefly discussed in the Superior Court's decision of 17 January 2006,[10] but not given a through analysis-expressly in deference to the letter from the Acting Assistant Secretary for Fish and Wildlife and Parks.

In Helsley, airborne shooting conducted as predator control under Montana law was deemed within the Airborne Hunting Act's exception specifically because it involved "the protection of livestock, domestic animals or human life"-spheres of state sovereignty.[11] Notably, stating that "[t]he power to regulate commerce is plenary," the Court expressly rejected the argument that "the inherent police power of the states enables the states exclusively to regulate wildlife within their boundaries."[12] The Court noted that the Supreme Court made clear that "the states" control over wildlife is not exclusive and absolute in the face of federal regulation."[13]

Here, under the doctrine of plenary power invoked in Helsley, the federal Act conflicts with State regulations and practice. Unlike the Montana enactments, Alaska's actions are not parallel to the federal law, but antithetical to it.[14]

Alaska's appeal to the federal law's exemption, then, fails to legitimize the State permit scheme. The Acting Assistant Secretary for Fish and Wildlife and Parks in fact highlights the conflict of law issue by noting that the Federal Regulations related to the Act's Subpart D state, "except as provided in S. 19.3 ['Relation to other laws'], States may issue permits to persons to engage in airborne hunting or harassing of wildlife for purposes of administering or protecting land, water, wildlife, livestock, domesticated animals, human life or crops."[15]

Alaska's point, moreover, is artificially boosting moose populations to benefit human hunters. Stretching the Act's exemption to the point that the success of residents' hunting outings are augmented would mean the exemption swallows the Act.[16] The limits of the Act are noted in Helsley, the Ninth-Circuit case that speaks to the issue, the case that is cited in as interpretive in the Annotations to the Act itself.[17]

Harry R. Bader and Greg Finstad cite Helsley as specifically "holding that Congress had authority under the Commerce Clause to regulate airborne hunting."[18] The federal government possesses no inherent police power; yet, as Bader and Finstad observe: "This does not, however, appreciably limit federal ability to manage wildlife when it does so pursuant to one of its delegated powers."[19] Bader and Finstad explain: "When the federal government exercises police-like power pursuant to any of these clauses [the U.S. Constitution's Commerce Clause, Property Clause, Treaty Clause], the federal action pre-empts conflicting state law under the U.S. Constitution's Supremacy Clause."[20]

And that's just what the federal government was and is doing by putting an end to the state of Alaska's airborne hunting by enacting the federal statute.

Alaska's Constitution obliges all public officers to support and defend the U.S. Constitution.[21] Therefore they cannot issue a permit that disregards a federal statute enacted pursuant to the authority extended by the Commerce Clause.[22] Thus, although deference to the letter would normally be reasonable, automatic deference to the agency interpretation is unacceptable here. By the same reasoning, the State cannot officially condone acts by permit-holders that violate federal law.

A final note on Helsey. The Ninth Circuit, in that case, noted the Act's underlying legislative purpose as regulating for the safety of the national air space.[23] Assigning anything that would violate the Act to private actors would defeat the purpose of Act by increasing the likelihood of breaches of safety and security in the national airspace. The importance of safety and security is in no way diminished in present-day Alaska. The element of sport-hunting in the aerial pursuit of wolves underscores the point.

IV. Aerial Gunning Permits Sanction Sport-Hunting under the Guise of Predator Control, Violating 50 C.F.R. S. 19.31(a).

Sport hunting is a salient element in the permit scheme, whether or not officially licensed as such when it's done. Private persons-not paid officials-spend significant private monies to ready their aircraft for outings in which they go up into the air and have a day of wolf chasing. This is not a commercial enterprise for the gunners, and there is no commercial market for pelts from Alaska to other states.

The state has ensured that aerial gunners have trapping permits and not hunters' permits. But aerial hunting has long appealed to thrill-seekers. Fifty years ago, The Alaska Sportsman described aerial wolf-hunters chasing a wolf for some minutes until "he suddenly stopped short, whirled around and leaped, snarling, straight at the plane-ready to do battle. I have seen a number of wolves do this, and it never fails to impress me".  The author explains that the team circled at shot at the wolf three times "before the poor devil was done in. I might add that considerable cockiness and self respect were done in with him."[24]

The magazine's photo caption reads: "Wolf hunting from a fast-moving airplane is a challenging occupation. Shooting a moving wolf from the air with a twelve-gauge shotgun isn't easy in itself, and the element of danger and the subzero Arctic weather adds zest and spice to the fascinating business."

Today, when teams of pilots and hunters act in a similar way under the permit scheme, the Board of Game insists that sport-hunting is not involved. To put it in common language, if it walks like a duck and quacks like a duck and the state signs a paper calling it a trapper so that it won't be called a duck, it's still a duck. The Board cannot do an end run around the Act by issuing official permits for the practice, whether the private actors are licensed as trappers or hunters.

V. Alaska Has Historically Expanded Wolf-Killing Plans Beyond Its Assurances of Deference to Federal Law

In 1993, then-Senator Frank H. Murkowski of Alaska spoke in the U.S. Congress specifically defending use of aircraft in relation to the Airborne Hunting Act. In 1993, explained Sen. Murkowski, Alaska planned "to eliminate approximately 50 to 100 animals" in order to protect caribou in about 3 percent of the State's land mass.[25] Sen. Murkowski entered into the Record a letter from Alaska's Fish and Game Commissioner, Carl Rosier, to Congressmember Peter DeFazio (House of Representatives, Oregon).[26]

Rosier cited both federal and state law, observing that "the regulations prohibit shooting from airplanes, or using airplanes to drive herd, molest or otherwise be an integral part of taking and we vigorously enforce these prohibitions." Rosier distinguishes the "same day airborne regulation" from "the state's ground based wolf control program which is occurring on state land in less than one percent of our state," explaining:

    In late June of this year in response to a proposal by trappers, the Alaska Board of Game added wolves to the list of animals that may be taken after flying the same day. We expect the regulation to result in less than 25 additional wolves taken per year statewide.[27]

On the basis of that letter, Sen. Murkowski asserted that the Airborne Hunting Act would not be a factor. Although we do not comment here on the legal significance of Sen. Murkowski's argument, it's illustrative of the hydraulic pull to characterize the federal Act as inconsequential as possible while expanded wolf-killing plans in spite of it.

The state has also posited that a vague piece of 1971 legislative history, Ted Stevens's expression of "serious reservations" about the Act, answers the matter in support of the Board of Game's current position. Stevens said:

    I would like the record to show and very clearly state that I have serious reservations about a bill which prohibits shooting animals solely from aircraft. We in our state prohibit shooting animals from aircraft, and the intent of the bill both in this body and in the House apparently seems to be that it would affect situations such as the so-called wolf men television program, and I think this is misleading.

    We feel that the shooting of animals from any moving vehicle, whether it is a snowmachine or snowbuggy or dune-buggy or truck or motor boat, or whatever it might be, ought to be prohibited, and that we should move in that direction. As a matter of fact, we do use aircraft and other vehicles for the control of predators. This bill would allow that.

    The bill is being pushed at this time to convince the public, apparently, that situations such as that which occurred in the wolf man type documentary, where aircraft are used to control predators, would be prohibited: and that is not so. A close reading of the bill discloses that would not be prohibited.

This history is hardly an approval of the Board of Game's proposed regulations. Ted Stevens was not a sponsor of the Act, nor can a single legislator change the intent of the entire Congress simply by making a statement on the floor. As for the substance of the statement, Stevens wanted to ban hunting from all moving vehicles, arguing that the bill singled out activity involving small aircraft but omitted other forms of transportation. Stevens then said that the Act would allow aerial predator control. As noted above in Section III., the case law confirms that point-but only in a "livestock" protection situation.

Nor is there precedent for classifying free-roaming animals as "livestock" simply because Alaska manages substinence hunting. Any argument that Alaska is different because it manages substinence hunting inappropriately avoids the argument that this hunting is outside of the federal exception, given the interpretive case of Helsley. Any such argument suggests that Alaska could resort to the exemption no matter if the permits were for trapping or hunting, and to promote virtually any result in Alaska's wildlife population. That suggestion would mean that the exemption swallows the Act.

VI. Conclusion

Wildlife control has wiped out wolves nationwide. Wolves once ranged in great numbers from Canada to Mexico. Today, Mexico hasn't seen a wolf for 10 years. As for the U.S. wolf population: only Minnesota and Alaska have populations exceeding 1,000.

As the plethora of news reports on this issue demonstrate, the aerial killing of wolves in Alaska is a subject of global controversy. The well-being of the wolves, or the disregard for it, sends a message to the world about how we treat free-living populations of animals, even as we purport to be an international model of enlightened treatment of native animals. Alaska's government-which was indeed such a model during its early days of statehood-is now forging the same reputation it once wisely sought to transcend.

Alaska's Supreme Court has never spoken on this issue, and the Superior Court, invoking deference to a letter from the Acting Assistant Secretary of Fish and Wildlife and Parks, expressly declined to look at the question. We submit that a careful analysis of the issue obliges the Board of Game to suspend the permit regime for the aerial killing of wolves.

For all of the reasons above, we submit that the proposed regulations are improper. Friends of Animals opposes the proposed regulations, and assert that they contravene federal statutory and Constitutional law.

We have stated in other legal submissions additional reasons for our opposition to the proposed regulations; nothing in this document supersedes our objections to the regulations on State law grounds.

Submitted by:

Priscilla Feral, President
Friends of Animals
777 Post Road
Darien, Connecticut 06820
Phone: 203-656-1522

Lee Hall
Legal Director, Friends of Animals
Admitted to the Bar in the State of Maryland

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Footnotes

   1. Pub.L.No.92-159, 85 Stat. 480 (codified at 16 U.S.C. § 742j-l).

   2. See Board of Game, "Reviewer Letter" (Feb. 2006) at, e.g., page 29: "Who is likely to suffer? Anyone opposed to intensive control of predator populations."

   3. Administrative Procedure Act, Section 44.62.220, Right to petition.

   4. Letter from Paul Hoffman, signing as Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior, addressed to Rodger O. Schlickeisen (31 Mar. 2004), submitted by the State with its summary judgment brief and referred to in Order of Motions for Summary Judgment in the case of Friends of Animals, et al., 3 An-03-13489 CI (17 Jan. 2006) (holding predator control plans invalid for five areas in Alaska).

 

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   5. Letter from Paul Hoffman to Rodger O. Schlickeisen, ibid.

   6. Order of Motions for Summary Judgment in the case of Friends of Animals, et al., 3 An-03-13489 CI (17 Jan. 2006) (holding predator control plans invalid for five areas in Alaska).

   7. See Validity, Construction, and Application of Airborne

unting Act, 16 U.S.C. § 742j-1(b), 179 A.L.R. Fed.; U.S. v. Helsley (1979, CA9 Mont) 615 F2d 784.

   8. The Senate report on legislative history states: "It is not the purpose of this legislation to infringe upon the traditional responsibility of the States to manage fish and resident wildlife within State boundaries." S. Report 121 92, 1st Session [at 1936] 1971.

   9. U.S. v. Helsley (1979, CA9 Mont) 615 F2d 784; see also Annotations: Validity, Construction, and Application of Airborne Hunting Act, 16 U.S.C.A. § 742j-1, 179 ALR Fed 527; Interpretive Notes and Decisions (citing Helsley as confirming the validity of the Airborne Hunting Act as an exercise of federal plenary power under the Commerce Clause).  

 

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  10. Friends of Animals, et al., supra note 4.

  11. 615 F2d 785-86, citing Mont. Admin. R. 32-2.14(1)-S1420.

  12. 615 F2d 788 (citing Hughes v. Oklahoma, 441 U.S. 322 (1979)).

  13. Helsley, 615 F2d 788, citing Hughes v. Oklahoma; Baldwin v. Montana Fish and Game Commission, 436 U.S. 371 (1978). Helsley stated specifically that a state's control over its resources, including wildlife, does not prohibit the proper exercise of federal power under provisions such as the commerce clause, citing Baldwin; Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977); Kleppe v. New Mexico, 426 U.S. 529 (1976); Missouri v. Holland, 252 U.S. 416 (1920).

  14. Helsley, 615 F.2d 784, 788 (citing Mont. Admin. R. 32-2.14(1)-S1420)).

  15. Letter from Paul Hoffman to Rodger O. Schlickeisen, supra note 4 (emphasis added).

  16. Aerial shooting of wolves does not protect moose themselves; rather, it allows them to proliferate and starve, and it alters natural survival patterns that can adversely influence the genetic future of herds. Wiping out wolves to artificially increase moose populations is not an exemplar of protecting and administering wildlife.

 

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  17. See Validity, Construction, and Application of Airborne Hunting Act, 16 U.S.C.A. sec. 742j-1, 179 A.L.R. Fed. 527, secs. 2(b), 3(a). (stating, under Interpretive Notes and Decisions: Constitutionality: "Prohibition of airborne hunting under 16 USCS § 742j-1 is valid exercise of Congressional power under commerce clause. United States v Helsley (1979, CA9 Mont) 615 F2d 784, 10 ELR 20087."

  18. Harry R. Bader and Greg Finstad, Conflicts Between Livestock and Wildlife: An Analysis of Legal Liabilities Arising From Reindeer and Caribou Competition on the Seward Peninsula of Western Alaska," 31 Envtl. L. 549, 570-71 (2001), citing Helsley, 615 F.2d 784, at 786.

  19. Bader and Finstad, Ibid.

  20. Ibid., citing U.S. Const. art VI, cl. 2; and also citing Hunt v. United States, 278 U.S. 96, 100 (1928) (holding that United State's decision to kill deer in Grand Canyon pre-empted state hunting laws).

  21. Art. 12, § 5. Oath of Office.

  22. U.S. Const. art. I, 8, cl. 3. See also the Supremacy Clause in U.S. Const., Art. VI.:

          This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

  23. Helsley, 615 F2d 784, 787 (citing S.Rep.No.92-421, 92d Cong., 1st Sess.).

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  24. Jay Hammond, "Arctic Trouble Shoot," The Alaska Sportsman (1956 edition). Hammond went on to become the Governor in the mid-1970s.

  25. "Alaska's Wolf Program," Congressional Record - Senate, 4 Oct. 1993, 103rd Cong. 1st Sess., Vol. 139 No. 132 (139 Cong. Rec. S. 12905).

  26. Ibid., including Letter from Carl L. Rosier, Commissioner, to Hon. Peter A. DeFazio (dated 27 Sep. 1993).   27. Letter from Carl L. Rosier, ibid

  27. Letter from Carl L. Rosier, ibid.

 

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