Safari Club International v. Debra Haaland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SAFARI CLUB INTERNATIONAL, No. 21-35030
Plaintiff-Appellant,
D.C. Nos.
and 3:17-cv-00013-SLG
3:17-cv-00014-SLG
STATE OF ALASKA,
Plaintiff,

v.

DEBRA HAALAND, in her official
capacity as Secretary of the
Department of the Interior;
MITCH ELLIS, in his official
capacity as Chief of Refuges for
the Alaska Region of the United
States Fish and Wildlife
Service; SARA BOARIO, in her
official capacity as Alaska
Regional Director, United States
Fish and Wildlife Service;
MARTHA WILLIAMS, in her
official capacity as Director of
U.S. Fish and Wildlife Service;
BERT FROST, in his official
capacity as Alaska Regional
Director, National Park Service;
CHARLES F. SAMS, III, in his
official capacity as Director of
the National Park Service;
2 SAFARI CLUB INT’L V. HAALAND

UNITED STATES FISH AND
WILDLIFE SERVICE; NATIONAL
PARK SERVICE; U.S.
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,

ALASKA WILDLIFE ALLIANCE;
ALASKANS FOR WILDLIFE;
FRIENDS OF ALASKA NATIONAL
WILDLIFE REFUGES; DENALI
CITIZENS COUNCIL; COPPER
COUNTRY ALLIANCE;
KACHEMAK BAY
CONSERVATION SOCIETY;
DEFENDERS OF WILDLIFE;
NATIONAL PARKS
CONSERVATION ASSOCIATION;
NATIONAL WILDLIFE REFUGE
ASSOCIATION; NORTHERN
ALASKA ENVIRONMENTAL
CENTER; THE WILDERNESS
SOCIETY, INC.; WILDERNESS
WATCH; SIERRA CLUB; CENTER
FOR BIOLOGICAL DIVERSITY;
THE HUMANE SOCIETY OF THE
UNITED STATES,
Intervenor-Defendants-
Appellees.

STATE OF ALASKA, No. 21-35035
Plaintiff-Appellant,
D.C. Nos.
and 3:17-cv-00013-SLG
3:17-cv-00014-SLG
 SAFARI CLUB INT’L V. HAALAND 3

SAFARI CLUB INTERNATIONAL,
Plaintiff,
OPINION
v.

DEBRA HAALAND, in her official
capacity as Secretary of the
Department of the Interior;
MITCH ELLIS, in his official
capacity as Chief of Refuges for
the Alaska Region of the United
States Fish and Wildlife
Service; SARA BOARIO, in her
official capacity as Alaska
Regional Director, United States
Fish and Wildlife Service;
MARTHA WILLIAMS, in her
official capacity as Director of
U.S. Fish and Wildlife Service;
BERT FROST, in his official
capacity as Alaska Regional
Director, National Park Service;
CHARLES F. SAMS, III, in his
official capacity as Director of
the National Park Service;
UNITED STATES FISH AND
WILDLIFE SERVICE; NATIONAL
PARK SERVICE; U.S.
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,

ALASKA WILDLIFE ALLIANCE;
ALASKANS FOR WILDLIFE;
FRIENDS OF ALASKA NATIONAL
4 SAFARI CLUB INT’L V. HAALAND

WILDLIFE REFUGES; DENALI
CITIZENS COUNCIL; COPPER
COUNTRY ALLIANCE;
KACHEMAK BAY
CONSERVATION SOCIETY;
DEFENDERS OF WILDLIFE;
NATIONAL PARKS
CONSERVATION ASSOCIATION;
NATIONAL WILDLIFE REFUGE
ASSOCIATION; NORTHERN
ALASKA ENVIRONMENTAL
CENTER; THE WILDERNESS
SOCIETY, INC.; WILDERNESS
WATCH; SIERRA CLUB; CENTER
FOR BIOLOGICAL DIVERSITY;
THE HUMANE SOCIETY OF THE
UNITED STATES,
Intervenor-Defendants-
Appellees.
 SAFARI CLUB INT’L V. HAALAND 5

Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, Chief District Judge, Presiding

Argued and Submitted February 18, 2022
San Francisco, California

Filed April 18, 2022

Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Jennifer G. Zipps, * District Judge.

Opinion by Judge Gould

SUMMARY **

Environmental Law

The panel affirmed the district court’s summary
judgment in favor of the U.S. Fish and Wildlife Service (the
“Service”) in cases brought by the State of Alaska and Safari
Club International (“plaintiffs”) alleging that the Service
violated federal environmental laws by enacting the Kenai
Rule, which limits certain hunting practices approved by the
State in the Kenai National Wildlife Refuge near Anchorage,
Alaska.

*
The Honorable Jennifer G. Zipps, United States District Judge for
the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
6 SAFARI CLUB INT’L V. HAALAND

In May 2016, the Service published a final rule – the
Kenai Rule – codifying its ban on baiting of Kenai Refuge
brown bears, and its closing of the Skilak Wildlife
Recreation Area (“Skilak WRA”) to coyote, wolf, and lynx
hunts.

The panel held that the Alaska National Interest Lands
Conservation Act (“ANILCA”) preserved the federal
government’s plenary power over public lands in Alaska.
The panel rejected plaintiffs’ two arguments that the Service
exceeded its statutory authority in enacting the Kenai Rule.
First, they asserted that the Alaska Statehood Act and
ANILCA stripped the Service of the power to restrict the
means, methods, or scope of State-approved hunting on
federal lands in Alaska. The panel held that while it was true
that the Alaska Statehood Act transferred administration of
wildlife from Congress to the State, this transfer did not
include lands withdrawn or otherwise set apart as refuges or
reservations for the protection of wildlife – like the Kenai
Refuge, which remains under federal control. Hunting
within the Kenai Refuge is subject to federal law, including
any regulations imposed by the Secretary of the Interior
under its delegated statutory authority to manage federal
lands. This specific mandate prevailed over ANILCA’s
general recognition of the State’s concurrent authority to
manage wildlife on public lands. If Alaska state law
conflicts with federal hunting regulations, the federal
regulations prevail under standard principles of conflict
preemption. Second, plaintiffs contended that even if the
Service could preempt the State’s hunting regulations on
federal lands in Alaska, the Kenai Rule violated a 2017
congressional joint resolution revoking the Refuges Rule,
which expanded the ban on brown bear baiting to all Alaskan
wildlife refuges and restricted other hunting. The panel held
that this claim was unsupported by the law. The 2017 joint
 SAFARI CLUB INT’L V. HAALAND 7

resolution only pertained to the Refuges Rule – not the Kenai
Rule. Accordingly, the 2017 joint resolution that
disapproved of the Refuges Rule did not void the Kenai
Rule.

The panel rejected Safari Club’s contention that the
Skilak WRA aspect of the Kenai Rule violated the National
Wildlife Refuge System Improvement Act of 1997
(“Improvement Act”) by disfavoring the compatible priority
use of hunting relative to the other compatible priority uses
and compatible non-priority uses of the Skilak WRA.
Designation of the Skilak WRA as a special area to be
managed for non-competitive uses was a permissible
exercise of the Service’s authority under ANILCA. The
Improvement Act did not require the Service to allow all
State-sanctioned hunting throughout the Kenai Refuge.

The panel rejected plaintiffs’ numerous arguments that
the Service violated the Administrative Procedure Act
(“APA”) by acting arbitrarily and capriciously in issuing the
Kenai Rule. Specifically, plaintiffs claimed that the Service
acted arbitrarily and capriciously in issuing the brown bear
baiting aspect of the Kenai Rule because: (1) it conflicted
with a different regulation; (2) the Service improperly
considered a predator control factor not contemplated by
Congress; (3) its conservation basis was improper; and
(4) its public safety justification was not grounded in
evidence in the record and constituted an unexplained
change in position by the Service. The panel concluded that
these points were inapt. Apart from its APA claims as to
brown bear hunting, Safari Club argued that the Skilak WRA
hunting part of the Kenai Rule was arbitrary and capricious
because: (1) the Service did not articulate any sufficient
basis for banning coyote, lynx, and wolf hunting in the
Skilak WRA; (2) the record undercut the Service’s finding
8 SAFARI CLUB INT’L V. HAALAND

that hunting in the Skilak WRA would bother recreation;
(3) the Service did not explain the basis for its changed
position on coyote, lynx, and wolf hunting within the Skilak
WRA; and (4) the district court applied the incorrect legal
standard in disposing of the APA claims concerning the
Skilak WRA. The panel disagreed with all of these
arguments. Finally, Safari Club claimed that enactment of
the Kenai Rule was procedurally improper because the
Service did not make necessary predicate findings that the
baiting of brown bears and the hunting of coyotes, lynx, and
wolves in the Skilak WRA were incompatible with refuge
purposes. This assertion relied on a 2007 compatibility
determination (“CD”) where the Service classified hunting
of brown bears as a compatible use of the Kenai Refuge. The
panel held that ANILCA did not require the Service to
follow any formal procedures or issue any findings before
regulating uses of the Kenai Refuge. The Service exercised
its power based on various factors, and addressed all of these
factors in the Kenai Rule. The Service complied with the
requisite procedures, and reversal on procedural grounds
was unwarranted. The panel rejected Safari Club’s request
to disturb the district court’s summary judgment on grounds
relating to the 2007 CD.

The panel rejected plaintiffs’ two-part National
Environmental Policy Act (“NEPA”) argument. They
asserted that the Kenai Rule changed the environmental
status quo in Kenai Refuge such that NEPA review was
required; and that the Service improperly fulfilled its NEPA
obligations for the Kenai Rule through categorical
exclusions (CE). Assuming NEPA procedures applied to the
Kenai Rule, an agency satisfies NEPA if it applied its CEs
and determined that neither an environmental assessment
(EA) nor an environmental impact statement (EIS) was
required, so long as applications of the exclusions were not
 SAFARI CLUB INT’L V. HAALAND 9

arbitrary and capricious. The panel held that the Service
sensibly decided that the Kenai Rule fit a CE for “issuance
of special regulations for public-use of [Service]-managed
land, which maintain essentially the permitted level of use
and do not continue a level of use that resulted in adverse
environmental impacts.” 81 Fed. Reg. 27033. The panel
concluded that there was no basis for reversal. The panel
also rejected plaintiffs’ contention that “extraordinary
circumstances” required an EIS or EA for the Kenai Rule.
The panel rejected plaintiffs request for remand of the Kenai
Rule to the Service for further NEPA analysis. To the extent
there were any errors, such errors were harmless.

COUNSEL

Jeremy E. Clare (argued) and Regina Lennox, Safari Club
International, Washington, D.C., for Plaintiff-Appellant
Safari Club International.

Jessica M. Alloway (argued), Solicitor General, Civil
Appeals; Treg R. Taylor, Attorney General; Office of the
Attorney General, Anchorage, Alaska; for Plaintiff-
Appellant State of Alaska.

Kevin W. McArdle (argued), Rachel Heron, and Michael S.
Sawyer, Attorneys; Todd Kim, Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Kenneth M. Lord,
Attorney, United States Department of the Interior,
Washington, D.C.; for Defendants-Appellees.

Rachel Genna Briggs (argued), Katherine Strong, and Brian
Litmans, Trustees for Alaska, Anchorage, Alaska, for
Intervenor-Defendants-Appellees.
10 SAFARI CLUB INT’L V. HAALAND

OPINION

GOULD, Circuit Judge:

Plaintiffs-Appellants State of Alaska (the State) and
Safari Club International separately sued Defendant-
Appellees Debra Haaland, et al., under the theory that the
United States Fish and Wildlife Service (FWS) violated the
Alaska National Interest Lands Conservation Act
(ANILCA), National Wildlife Refuge System Improvement
Act of 1997 (Improvement Act), Administrative Procedure
Act (APA), and National Environmental Policy Act (NEPA)
by enacting the Kenai Rule, which limits certain hunting
practices approved by the State in the Kenai National
Wildlife Refuge (the Kenai Refuge) near Anchorage,
Alaska. The premise of these lawsuits is that the State, and
not the federal government, has the ultimate regulatory
authority over hunting on federal lands in Alaska. The
district court disagreed and entered summary judgment in
favor of FWS. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm. In so doing, we hold that ANILCA preserves
the federal government’s plenary power over public lands in
Alaska. We also reject the Improvement Act, APA, and
NEPA arguments set out by the State and Safari Club.

I. STATUTORY BACKGROUND

A. ANILCA

ANILCA gives the State primary responsibility for the
administration of its wildlife, but FWS manages federal
lands in Alaska and regulates human activities therein.
ANILCA, Pub. L. No. 96-487 § 1314, 94 Stat. 2383 (1980),
codified at 16 U.S.C. § 3202(a)–(c). And ANILCA operates
such that the taking of wildlife on federal lands in Alaska is
governed by state law unless it is further limited by federal
 SAFARI CLUB INT’L V. HAALAND 11

law, 50 C.F.R. § 36.32(c)(1)(i), or “incompatible with
documented Refuge goals, objectives, or management
plans.” 81 Fed. Reg. 27030, 27033 (May 5, 2016).

B. The Improvement Act

The Improvement Act states that its enumerated
“wildlife-dependent recreational activities,” namely
hunting, fishing, wildlife observation and photography, and
environmental education and interpretation, “shall receive
priority consideration in refuge planning and management”
if they are compatible with the purpose of a wildlife refuge.
16 U.S.C. §§ 668dd(a)(3)(C), 668ee(2). The Improvement
Act further directs FWS to work with state agencies,
16 U.S.C. §§ 668dd(a)(4)(E), (M), and adopt regulations
permitting hunting and fishing within national wildlife
refuges, which “shall be, to the extent practicable, consistent
with [s]tate fish and wildlife laws, regulations, and
management plans,” 16 U.S.C. § 668dd(m).

C. NEPA

NEPA requires federal government agencies to consider
the environmental impact of their ongoing activities.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989). The purposes of this law include directing
federal government agencies to look at alternatives to any
action with significant impact on the environment and
educating the public about the consequences of such actions
so that the public’s voice can be heard. See Lands Council
v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005). NEPA
requires federal government agencies to complete an
environmental impact statement (EIS) for projects that may
significantly impact the environment. 42 U.S.C. § 4332(C).
However, federal government agencies are also permitted to
perform an environmental assessment (EA) “on any action
12 SAFARI CLUB INT’L V. HAALAND

in order to assist agency planning and decision making,”
40 C.F.R. § 1501.5(b), and classify particular activities that
generally do not significantly impact the environment as
categorical exclusions (CE) for which an EIS or EA is
typically not required absent extraordinary circumstances,
40 C.F.R. § 1501.4.

II. FACTS AND PROCEDURAL HISTORY

In 2013, the State determined that the Kenai brown bear
population, which was previously “of special concern” due
to habitat loss and human-caused mortality, had grown to a
level that justified the permitting of additional brown bear
hunting. The Alaska Board of Game (Board) expanded the
availability of brown bear hunting permits, extended the
brown bear hunting season, increased relevant harvest limits,
and approved the taking of brown bears through baiting at
registered black bear stations in the Kenai Refuge. The
Board also opened a specific area of the Kenai Refuge called
the Skilak Wildlife Recreation Area (Skilak WRA) to the
seasonal hunting of coyotes, lynx, and wolves. See 5 AAC
§ 92.530(6).

FWS disagreed with these Board actions because it
concluded that the changes as to brown bears would cause
unsustainable harvest levels and human-caused mortality.
FWS also opposed opening the Skilak WRA to coyote, wolf,
and lynx hunting as “inconsistent with [its] management
objectives for the area.” Still, the Board did not change its
course, and so FWS blocked the Board’s authorization of
brown bear baiting at black bear stations in the Kenai Refuge
in 2013 and 2014. 81 Fed. Reg. 27036. FWS also closed
the Skilak WRA to the newly approved coyote, lynx, and
wolf hunting before the season started. 78 Fed. Reg. 66061,
66061–62 (Nov. 4, 2013) (applying 50 C.F.R. § 36.42).
 SAFARI CLUB INT’L V. HAALAND 13

In May 2015, FWS published a proposed rule (Kenai
Rule) to codify its ban on baiting of Kenai brown bears and
its closing of the Skilak WRA to coyote, wolf, and lynx
hunts. 80 Fed. Reg. 29277, 29278–80 (May 21, 2015). FWS
did not complete an EIS or EA for the proposed Kenai Rule
on the basis that it fit a CE tailored to new regulations “which
maintain essentially the permitted level of use” of federal
lands. 80 Fed. Reg. 29281. The agency published the final
Kenai Rule, which was largely identical to the proposed rule,
in May 2016. 81 Fed. Reg. 27045, codified at 50 C.F.R.
§§ 36.39(i)(5)(ii), (6). FWS did not perform an EIS or EA
for the final Kenai Rule because it fit the agency’s CE for
regulations which maintain permitted levels of use. 81 Fed.
Reg. 27043 (citing 43 C.F.R. § 46.210).

FWS later enacted a new rule (Refuges Rule) that
expanded the ban on brown bear baiting to all Alaskan
wildlife refuges and restricted State-authorized hunting
deemed by FWS to constitute “intensive management” or
“predator control,” which is defined as reducing predator
populations to increase prey numbers. 81 Fed. Reg. 52248,
52252 (Aug. 5, 2016). FWS justified this Refuges Rule by
stressing conservation of brown bears and the State’s
liberalization of regulations on bear, wolf, and coyote
hunting. 81 Fed. Reg. 52261–63.

Congress abrogated the Refuges Rule in 2017 by passing
a joint resolution under the Congressional Review Act. Pub.
L. No. 115-20, 131 Stat. 86 (2017). If an agency’s rule is
canceled in this way, the agency cannot issue “a new rule
that is substantially the same” as the disapproved rule unless
the relevant law changes. 5 U.S.C. § 801(b)(2). We upheld
this joint congressional resolution disapproving of the
Refuges Rule on the ground that the joint resolution “validly
amended Interior’s authority to administer national wildlife
14 SAFARI CLUB INT’L V. HAALAND

refuges in Alaska,” Ctr. for Biological Div. v. Bernhardt,
946 F.3d 553, 562 (9th Cir. 2019), such that FWS cannot
enforce the Refuges Rule or enact a substantively identical
new rule absent a change in the law, id. at 557 (citing
5 U.S.C. § 801(b)(1)–(2)), 562 (“By enacting the Joint
Resolution, Congress amended the substantive
environmental law and deprived the Refuges Rule of any
force or effect.”).

The State and Safari Club filed separate lawsuits alleging
that the Kenai Rule’s ban on baiting of brown bears and
hunting of coyotes, lynx, and wolves in the Skilak WRA
violates ANILCA, the Improvement Act, the APA, and
NEPA. The district court consolidated these cases,
permitted the Alaska Wildlife Alliance to intervene as a
defendant, and then granted summary judgment in favor of
FWS on all of the claims asserted by the State and Safari
Club. This timely appeal followed.

III. STANDARDS OF REVIEW

We review de novo issues of preemption and statutory
interpretation, Cohen v. ConAgra Brands, Inc., 16 F.4th
1283, 1287 (9th Cir. 2021), summary judgment orders on the
validity of agency actions, San Luis & Delta-Mendota Water
Auth. v. Locke, 776 F.3d 971, 991 (9th Cir. 2014), and
whether the agency complied with NEPA, Kern v. U.S.
Bureau of Land Mgmt., 284 F.3d 1062, 1069–70 (9th Cir.
2002). This requires direct review of “the agency’s action
under the APA’s arbitrary and capricious standard.”
Kalispel Tribe of Indians v. U.S. Dep’t of the Interior,
999 F.3d 683, 688 (9th Cir. 2021) (cleaned up).

Under the arbitrary and capricious standard, we must set
aside agency actions that are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law, in
 SAFARI CLUB INT’L V. HAALAND 15

excess of statutory jurisdiction, or without observance of
procedure required by law.” Id. Our scope of “review is
narrow and we cannot substitute our judgment for that of the
agency.” Id. Reversal is appropriate “only if the agency
relied on factors Congress did not intend it to consider,
entirely failed to consider an important aspect of the
problem, or offered an explanation that runs counter to the
evidence before the agency or is so implausible that it could
not be ascribed to a difference in view or the product of
agency expertise.” Id. A challenged agency action may
otherwise be affirmed. See id.

IV. ANALYSIS

A. The ANILCA Claims

The State and Safari Club set out two main arguments
that FWS exceeded its statutory authority in enacting the
Kenai Rule. First, they assert that the Alaska Statehood Act
and ANILCA strip FWS of the power to restrict the means,
methods, or scope of State-approved hunting on federal
lands in Alaska. Second, they contend that even if FWS can
preempt the State’s hunting regulations on federal lands in
Alaska, the Kenai Rule violates the 2017 congressional joint
resolution revoking the Refuges Rule. They are incorrect.

i.

The assertion by the State and Safari Club that FWS
cannot limit the means, method, or scope of hunting on
federal lands in Alaska is best understood as follows. The
federal government ceded all management authority over the
wildlife on public lands in Alaska to the State via the Alaska
Statehood Act. Pub. L. No. 85-508 § 6(e), 72 Stat. 339
(1984); 25 Fed. Reg. 33, 33 (Jan. 5, 1960). And ANILCA
§ 1314(a), which functions as a savings clause, states that
16 SAFARI CLUB INT’L V. HAALAND

“[n]othing in this Act is intended to enlarge or diminish the
responsibility and authority of the State of Alaska for
management of fish and wildlife on the public lands.”
16 U.S.C. § 3202(a). That is wrong.

It is true that the Alaska Statehood Act transferred
administration of wildlife from Congress to the State. Pub.
L. No. 85-508 § 6(e). But this “transfer [did] not include
lands withdrawn or otherwise set apart as refuges or
reservations for the protection of wildlife” like the Kenai
Refuge, which remain under federal control. Id. And
“Congress has authority under the Property Clause of the
Constitution to ‘make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.’” Bernhardt, 946 F.3d at 557–58 (quoting
U.S. Const., art. IV, § 3, cl. 2). This “includes the power to
regulate and protect the wildlife living there.” Kleppe v.
N.M., 426 U.S. 529, 541 (1976). Such federal legislation
“overrides conflicting state laws under the Supremacy
Clause” because using “[a] different rule would place the
public domain of the United States completely at the mercy
of state legislation.” Id. at 543. And Congress “delegated
its authority under the Property Clause to manage the federal
wildlife refuges in Alaska to the [Department of the
Interior].” Bernhardt, 946 F.3d at 561.

Consistent with these authorities, ANILCA gives the
Secretary of the Interior the power to manage the public
lands in Alaska, 16 U.S.C. § 3202(b), and all hunting therein
“shall be carried out in accordance with the provisions of this
Act and other applicable State and Federal law,” 16 U.S.C.
§ 3202(c). In this context, hunting within the Kenai Refuge
is subject to federal law, including any regulations imposed
by the Secretary of the Interior under its delegated statutory
authority to manage federal lands. See Nat’l Ass’n of Home
 SAFARI CLUB INT’L V. HAALAND 17

Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007)
(“[T]he words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
(cleaned up)). That specific mandate prevails over
ANILCA’s general recognition of the State’s concurrent
authority to manage wildlife on public lands. See 16 U.S.C.
§ 3202(a); NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415
(9th Cir. 1994) (“It is a well-settled canon of statutory
interpretation that specific provisions prevail over general
provisions.”). And, if Alaska state law conflicts with federal
hunting regulations, the latter control under standard
principles of conflict preemption. See Nat’l Audubon Soc’y,
Inc. v. Davis, 307 F.3d 835, 854 (9th Cir. 2002); accord
Bernhardt, 946 F.3d at 558 (“Alaska’s laws for managing
[its] wildlife are applicable in the national wildlife refuges in
the state unless preempted by federal law.”).

For these reasons, the Department of the Interior need
not defer to the State’s hunting regulations. FWS may
restrict State-authorized hunting in the Kenai Refuge to,
inter alia, conserve wildlife. ANILCA §§ 303(4)(B)(i),
304(b), 304(g)(2)(A); 16 U.S.C. §§ 668dd(a)(3)(D),
(a)(4)(A), (d)(3)(A)(i); 50 C.F.R. § 36.32(c)(1)(i) (requiring
that hunters in Alaskan refuges “shall comply with the
applicable provisions of State law unless further restricted
by Federal law”). Not only do the cited legal principles and
laws tell us that federal law has primacy over federal lands,
but also common sense tells us the same. The federal
government, and not a single state, has control over federal
lands which benefit the entire country.

The State and Safari Club seek a contrary conclusion
based on Sturgeon v. Frost, 139 S. Ct. 1066 (2019). But
Sturgeon’s holding that private land in Alaskan national
parks is exempt from federal regulation is irrelevant. See id.
18 SAFARI CLUB INT’L V. HAALAND

at 1080–85. FWS regulations, including the Kenai Rule,
“are applicable only on federally-owned lands within the
boundaries of any Alaska National Wildlife Refuge.”
50 C.F.R. § 36.1(b). In any case, Sturgeon reiterates that
ANILCA vests the Secretary of the Interior with plenary
authority “to protect—if need be, through expansive
regulation—‘the national interest in the scenic, natural,
cultural and environmental values on the public lands.’”
139 S. Ct. at 1087 (quoting 16 U.S.C. § 3101(d)). This
delegated plenary authority to protect the value of public
lands within Alaska includes maintaining “sound
populations of [] wildlife species of inestimable value.” See
16 U.S.C. § 3101(a)–(b). Sturgeon accordingly supports the
continued existence of the Kenai Rule.

In the alternative, the State urges that relief is proper
because two 2013 letters from FWS to the State prove FWS
wrongly enacted the Kenai Rule to preempt the State’s
predator control initiatives. But these letters do not help the
State. “[C]ourts ordinarily are empowered to review only an
agency’s final action,” Home Builders, 551 U.S. at 659,
based on “grounds invoked by the agency,” SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947). If “there is a
contemporaneous explanation of the agency decision, the
validity of that action must stand or fall on the propriety of
that finding” alone. Vt. Yankee Nuclear Power Corp. v.
N.R.D.C., 435 U.S. 519, 549 (1978) (cleaned up). And we
“may not reject an agency’s stated reasons for acting simply
because the agency might also have had other unstated
reasons” for acting. Dep’t of Com. v. N.Y., 139 S. Ct. 2551,
2573 (2019). The lack of any “intensive management” or
“predator control” justifications in the final Kenai Rule,
81 Fed. Reg. 27030–48, defeats the State’s claim that FWS
inappropriately promulgated the Kenai Rule to restrict the
 SAFARI CLUB INT’L V. HAALAND 19

State’s predator control programs. See Dep’t of Com.,
139 S. Ct. at 2573.

ii.

The State otherwise asserts that, even if FWS can restrict
State-approved hunting on federal lands in Alaska, the 2017
congressional joint resolution canceling the Refuges Rule
substantively amended ANILCA and other statutes such that
it voided the Kenai Rule. This claim is unsupported by the
law and we reject it.

The first problem for the State is that the 2017 joint
resolution only pertains to the Refuges Rule and does not
mention the Kenai Rule. See Bernhardt, 946 F.3d at 559
(reciting the joint resolution). As a result, this joint
resolution does not indicate congressional intent concerning
the Kenai Rule. See 5 U.S.C. § 801(g) (“If the Congress
does not enact a joint resolution of disapproval [] respecting
a rule, [then] no court or agency may infer any intent of the
Congress from any action or inaction of the Congress with
regard to such rule.”). This principle, standing alone, defeats
the State’s argument that the 2017 joint resolution
concerning the Refuges Rule repealed the Kenai Rule by
implication.

The State also misconstrues the scope of the 2017 joint
resolution, which amends the law only in the sense that FWS
cannot manage public lands in Alaska through the Refuges
Rule or a new administrative rule that is substantively
identical. Bernhardt, 946 F.3d at 557 (citing 5 U.S.C.
§ 801(b)(1)–(2)), 562. Applying these principles, the State’s
reliance on this joint resolution is unavailing with regard to
the Kenai Rule. The State does not allege that FWS is still
enforcing the Refuges Rule. The Kenai Rule is not a “new
rule” relative to the Refuges Rule because the Kenai Rule is
20 SAFARI CLUB INT’L V. HAALAND

the older of the two rules, a fact the State admits. Nor are
the Refuges Rule and Kenai Rule substantively identical.
The Refuges Rule blanketly excluded the baiting of brown
bears and State predator control programs from all national
wildlife refuges in Alaska. 81 Fed. Reg. 52252. The Kenai
Rule does not do this. It only forbids baiting of brown bears
in the Kenai Refuge and prohibits the hunting of coyotes,
lynx, and wolves within the Skilak WRA. 81 Fed. Reg.
27045. For these reasons, the 2017 joint resolution that
disapproved of the Refuges Rule does not void the Kenai
Rule.

B. The Improvement Act Claim

Safari Club contends that the Skilak WRA aspect of the
Kenai Rule violates the Improvement Act by disfavoring the
compatible priority use of hunting relative to the other
compatible priority uses and compatible non-priority uses of
the Skilak WRA. We disagree.

ANILCA authorizes FWS to prepare conservation plans
designating different “areas within [the Kenai Refuge]
according to their respective resources and values,” and set
“the uses within each such area which may be compatible
with the major purposes of the refuge.” ANILCA
§ 304(g)(3)(A)(i)–(iii). Designation of the Skilak WRA as a
special area to be managed for non-consumptive uses is a
permissible exercise of this authority. See id. Safari Club’s
reliance on the status of hunting as a priority compatible use
of the Kenai Refuge is unavailing. The Improvement Act
does not require FWS to allow all State-sanctioned hunting
throughout the Kenai Refuge. 16 U.S.C. § 668dd(a)(3)(D).
Nor does the Improvement Act’s statement that FWS
hunting regulations “shall be, to the extent practicable,
consistent with [s]tate fish and wildlife laws, regulations,
and management plans” help Safari Club here. 16 U.S.C.
 SAFARI CLUB INT’L V. HAALAND 21

§ 668dd(c), (m). ANILCA authorizes FWS to enact
regulations preempting State-approved hunting in the Kenai
Refuge, Bernhardt, 946 F.3d at 558, and when ANILCA and
the Improvement Act are in tension, the former prevails, see
Pub. L. 105-57 § 9(b), 111 Stat. 1252, 1260 (1997).

C. The APA Claims

The State and Safari Club raise a series of arguments that
FWS violated the APA by acting arbitrarily and capriciously
in issuing the Kenai Rule. These contentions do not justify
invalidation of the Kenai Rule on appeal.

i.

The State and Safari Club claim that FWS acted
arbitrarily and capriciously in issuing the brown bear baiting
aspect of the Kenai Rule because: (1) it conflicts with a
different regulation; (2) FWS improperly considered a
predator control factor not contemplated by Congress; (3) its
conservation basis is improper; and (4) its public safety
justification is not grounded in evidence in the record and
constitutes an unexplained change in position by FWS. We
conclude that these points are inapt.

a.

The conflicting regulation argument relies on the
parenthetical in 50 C.F.R. § 32.2(h), which states that
“unauthorized distribution of bait and the hunting over bait
is prohibited on wildlife refuge areas. (Baiting is authorized
in accordance with State regulations on national wildlife
refuges in Alaska).” Per Safari Club, this parenthetical
requires FWS to defer to all of the State’s bear baiting laws.
That is incorrect.
22 SAFARI CLUB INT’L V. HAALAND

“In discerning the meaning of regulatory language, our
task is to interpret the regulation as a whole, in light of the
overall statutory and regulatory scheme, and not to give
force to one phrase in isolation.” Norfolk Energy, Inc. v.
Hodel, 898 F.2d 1435, 1442 (9th Cir. 1990) (citation
omitted).

Applying this principle, we note that the parenthetical
was added to 50 C.F.R. § 32.2(h) to “avoid confusion
between the general provision prohibiting baiting on refuges
and the Service’s policy of permitting hunting on national
wildlife refuges in Alaska in accordance with state
regulations.” 49 Fed. Reg. 50017, 50049-01 (Dec. 26,
1984). In addition, FWS must maintain sound wildlife
populations on its refuges, ANILCA § 303(4)(B)(i),
303(4)(B)(v), 304(b); 16 U.S.C. §§ 668dd(a)(4), 3101(b).
And 50 C.F.R. § 32.2(h) has several companion regulations
that inform its meaning. See 50 C.F.R. §§ 36.31(b), 32.32(a),
36.34, 36.42; Hodel, 898 F.2d at 1442. In this context, the
meaning of the parenthetical is clear. The general ban on
bear baiting in refuges does not apply in Alaska. But FWS
may limit State-approved bear baiting on Alaskan refuges
“in accordance with the provisions of § 36.42,” which call
for conservation of wildlife, management of refuges
consistent with their purposes, and public safety. See
50 C.F.R. § 36.31(b). That means the parenthetical relied
upon by Safari Club does not strip FWS of its authority to
enact specific regulations restricting bear baiting in refuges,
and these specific regulations will prevail over the general
parenthetical. See Preiser v. Rodriguez, 411 U.S. 475, 490
(1973); accord A-Plus Roofing, 39 F.3d at 1415.

b.

The State urges us to void the Kenai Rule on the basis
that FWS improperly considered a predator control factor
 SAFARI CLUB INT’L V. HAALAND 23

not contemplated by Congress, as shown by its alleged focus
on the success rate of bear baiting. We decline to do so
because we review final agency actions and the rationales
therein, Vt. Yankee, 435 U.S. at 549; Dep’t of Com.,
139 S. Ct. at 2573, and the final Kenai Rule does not
mention “predator control.”

c.

Safari Club makes two discrete sub-arguments as to the
conservation basis for the Kenai Rule. First, Safari Club
contends that the higher brown bear mortality cited in the
Kenai Rule stems from the State’s increased harvest cap on
brown bears, not the practice of bear baiting. Per Safari
Club, the Kenai Rule is futile because it does not reduce the
harvest levels set by the State and has no real conservation
impact. Second, Safari Club maintains that the brown bear
baiting element of the Kenai Rule violates a previous refuge
management plan that endorsed predator control. On our
examination of the record and applicable law, we conclude
that Safari Club is wrong on both of those contentions.

It is true that FWS has no authority over harvest caps set
by the State, or the number of brown bears killed outside the
Kenai Refuge. But FWS has a statutory duty to conserve
brown bears in the Kenai Refuge. ANILCA §§ 303(4)(B)(i),
304(b); 16 U.S.C. §§ 668dd(a)(4)(A), 3101(b). The Kenai
Rule relates only to the refuge and offers a comprehensive
and reasonable explanation as to why its ban on baiting will
conserve the Kenai Refuge brown bear population. 81 Fed.
Reg. 27035–37.

Kenai brown bears are a small, isolated population with
“one of the lowest reproductive potentials of any North
American mammal.” 81 Fed. Reg. 27035. In 2013, the year
before the State allowed brown bear baiting, twelve brown
24 SAFARI CLUB INT’L V. HAALAND

bears were harvested in Game Management Unit 7, which
borders the Kenai Refuge. 81 Fed. Reg. 27036. In 2014, the
first year of brown bear baiting outside the Kenai Refuge,
thirty-eight brown bears, twenty-eight of which were taken
over bait, were harvested in Game Management Unit 7. Id.
And forty of the sixty-five brown bears harvested on the
peninsula surrounding the Kenai Refuge in 2014, or sixty-
two percent of such takes, were from bear baiting. Id. After
modeling this harvest data and the associated brown bear
population trends, FWS concluded that “allowance of take
of brown bears over bait [in the Kenai Refuge] would
increase human-caused mortality [] to levels which would
continue to reduce the population, with potential to result in
conservation concerns to this population” of Alaskan brown
bears. 81 Fed. Reg. 27036–37.

Given this context, Safari Club’s contention that the
Kenai Rule will not help conserve brown bears in the refuge
cannot stand. The record readily supports FWS’ conclusion
that baiting of brown bears in the Kenai Refuge would
significantly increase brown bear mortalities in the refuge
“due to its high degree of effectiveness as a harvest method.”
81 Fed. Reg. 27036. And the agency reasonably concluded
from this information that prohibiting baiting would help
conserve the brown bears in the Kenai Refuge as required by
ANILCA and the Improvement Act, irrespective of the
State’s harvest cap on brown bears. 81 Fed. Reg. 27035–37.

Safari Club further urges that an internal FWS email is
evidence that the conservation concerns undergirding the
brown bear baiting part of the Kenai Rule are unavailing
because they are grounded in predator control and contradict
a 2010 management plan allegedly endorsing predator
control in the refuge. But this email is not part of the final
Kenai Rule and the accompanying explanation for that rule’s
 SAFARI CLUB INT’L V. HAALAND 25

adoption, to which the scope of our review is limited. See
Home Builders, 551 U.S. at 659; Chenery Corp., 332 U.S. at
196. The final Kenai Rule does not cite predator control and
we cannot “reject an agency’s stated reasons for acting
simply because the agency might also have had other
unstated reasons” for acting as it did. Dep’t of Com.,
139 S. Ct. at 2573. In any event, this cited FWS email does
not even mention the Kenai Rule and its relevance to this
case has not been established by Safari Club.

d.

The State and Safari Club assert that the brown bear
baiting part of the Kenai Rule is arbitrary and capricious
because its public safety rationale is an unexplained change
in agency position from FWS’ authorization of black bear
baiting in a 2007 compatibility determination (CD) for the
Kenai Refuge. This claim is accompanied by an argument
that the public safety basis for the bear baiting part of the
Kenai Rule is unsupported by the record. We conclude that
the State and Safari Club misconstrue the conclusions of the
2007 CD and the Kenai Rule administrative record, so we
affirm the district court’s ruling on this issue.

Both the State and Safari Club read the 2007 CD as
stating that bear baiting is not a public safety hazard. They
are wrong. Because FWS lacked evidence on the issue, the
2007 CD did not reach a definitive conclusion on whether
baiting increases the risk that bears will become conditioned
to human food and threaten public safety. FWS instead
determined that the problem of bear conditioning to human
food “deserves additional attention . . . and the potential
concern for human and non-target-bear safety around the
bait station itself is of interest.” Although FWS designated
black bear baiting as a compatible use of the Kenai Refuge,
it cautioned that such baiting “is tightly controlled currently
26 SAFARI CLUB INT’L V. HAALAND

to ensure compatibility. Attention will be given to the
program in the future as well to determine if additional
changes are warranted, in particular to any developing
human safety concerns or noticeable impacts to the area’s
brown bear population.”

There is no conflict between the Kenai Rule and the 2007
CD because the Kenai Rule revisited the bear food-
conditioning and public safety questions left open in the
2007 CD. 81 Fed. Reg. 27037. In enacting the Kenai Rule,
FWS cited two studies not discussed in the 2007 CD (the
Herrero Books) for the proposition that “food-conditioning
of bears results in increased potential for negative human-
bear encounters and increased risk to public safety.” Id. The
Herrero Books explain the dangers from bears that are
habituated to people or have learned to feed on human food,
highlight that habituation combined with food-conditioning
“has been associated with a large number of injuries” to
humans, and indicate food-conditioning of bears may result
from exposure to human food at bait stations. The Kenai
Rule also cited data that, when the State authorized brown
bear baiting outside the Kenai Refuge, such baiting greatly
increased, which engendered an “increased potential for
human-bear conflicts.” 81 Fed. Reg. 27037 (explaining that
the number of bear baiting stations grew by 100 after the
State allowed baiting of brown bears).

Considering this information, FWS reasonably
concluded that allowing brown bear baiting in the Kenai
Refuge will cause public safety issues by exacerbating
habituation and food-conditioning and increasing the
number of adverse human-bear interactions at baiting
stations. 81 Fed. Reg. 27037. To the extent that the State
and Safari Club claim the public safety basis for the bear
baiting aspect of the Kenai Rule is void for lack of data, they
 SAFARI CLUB INT’L V. HAALAND 27

are incorrect. An agency need not “support its conclusions
with empirical research” and can “rely on its experience,
even without having quantified it in the form of a study.”
Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010).

Safari Club urges a contrary conclusion on the basis that
the Herrero Books are irrelevant because they do not address
bear baiting but instead pertain to garbage dumps and a past
but discontinued federal practice of feeding bears in national
parks. This argument is futile. We substantially defer to
agency scientific determinations, Balt. Gas & Elec. Co. v.
Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983),
especially if they require technical expertise, Locke,
776 F.3d at 994. And in claiming bear baiting and food-
conditioning are dissimilar, Safari Club overlooks the
suggestion in the Herrero Books that food-conditioning of
bears can occur at baiting stations and creates increased
public safety risks. 81 Fed. Reg. 27037.

No proper ground for reversal exists here. FWS
rationally set out its reasons for enacting the Kenai Rule, see
In re Big Thorne Project, 857 F.3d 968, 976 (9th Cir. 2017)
(“[T]he agency must rationally explain why it did what it
did.”), and we are not a panel of scientists empowered to
instruct agencies on how to choose among scientific studies,
nor can we correctly order the agency to explain every
possible uncertainty in scientific realms that are properly
entrusted to its expertise, see Bair v. Calif. Dep’t of Transp.,
982 F.3d 569, 578 (9th Cir. 2020). Applying these
principles, we reject the assertions by the State and Safari
Club with regard to the public safety justification of the
brown bear baiting part of the Kenai Rule and affirm the
grant of summary judgment for FWS on this issue. See Balt.
Gas & Elec. Co., 462 U.S. at 103; Locke, 776 F.3d at 994.
The responsible federal agency, here FWS, has presumptive
28 SAFARI CLUB INT’L V. HAALAND

scientific expertise on how practices of feeding brown bears
may relate to human safety and the likelihood that the
endangered bear population can be maintained or increased.

ii.

Apart from its APA claims as to brown bear baiting,
Safari Club argues that the Skilak WRA hunting part of the
Kenai Rule is arbitrary and capricious because: (1) FWS did
not articulate any sufficient basis for banning coyote, lynx,
and wolf hunting in the Skilak WRA; (2) the record
undercuts FWS’ finding that hunting in the Skilak WRA will
curb other recreation; (3) FWS did not explain the basis for
its changed position on coyote, lynx, and wolf hunting
within the Skilak WRA; and (4) the district court applied the
incorrect legal standard in disposing of the APA claims
concerning the Skilak WRA. We disagree.

a.

Safari Club challenges the Skilak WRA aspect of the
Kenai Rule on the basis that it is unsupported by area-
specific data or studies, or studies of animal behavior outside
the Skilak WRA. In addition, Safari Club insists that the
Kenai Rule’s ban on hunting of coyotes, lynx, and wolves
should be vacated because it is the product of conjecture by
FWS. Neither contention warrants reversal of the summary
judgment order.

There are no site-specific studies concerning how the
hunting of coyotes, lynx, and wolves in the Skilak WRA
would affect those species because this area has been closed
to such hunting for decades. 81 Fed. Reg. 27038. FWS
cannot cite nonexistent studies in the rulemaking process.
See Locke, 776 F.3d at 995 (holding that federal agencies
need not carry out “new tests or make decisions on data that
 SAFARI CLUB INT’L V. HAALAND 29

does not yet exist”). And Safari Club identifies no studies
on how hunting impacts the behavior of coyotes, lynx, and
wolves outside of the Skilak WRA, so FWS cannot be
faulted for not relying on such materials. See id. In such a
situation, where the record is devoid of pre-existing studies
to clarify the impact of policies on threatened animal species,
the default rule is to rely on a specialized federal agency’s
presumptive expertise in the subject. See Far East Conf. v.
U.S., 342 U.S. 570, 574–75 (1952) (“[R]egulation of
business entrusted to a particular agency [is] secured, and the
limited functions of review by the judiciary are more
rationally exercised, by preliminary resort for ascertaining
and interpreting the circumstances underlying legal issues to
agencies that are better equipped than courts by
specialization, by insight gained through experience, and by
more flexible procedure.”); ASARCO, Inc. v. OSHA,
746 F.2d 483, 490 (9th Cir. 1984) (stipulating that an agency
has “leeway where its findings must be made on the frontiers
of scientific knowledge,” including in environmental
contexts (citations omitted)). Indeed, one reason for the
growth of administrative agencies and their primacy in
specialized areas is that the designated agency can staff up
with scientists or other experts, see Marsh v. Or. Nat. Res.
Council, 490 U.S. 360, 378 (1989) (“[A]n agency must have
discretion to rely on the reasonable opinions of its own
qualified experts.”), and give a rational basis for its
decisions, see McFarland v. Kempthorne, 545 F.3d 1106,
1113 (9th Cir. 2008). This approach is particularly
beneficial in areas like environmental law that rely heavily
on agency scientific judgments. See, e.g., Mont. Sulphur &
Chem. Co. v. U.S. EPA, 666 F.3d 1174, 1183 (9th Cir. 2012).

Our caselaw further explains that a rulemaking agency is
allowed to “rely on its experience, even without having
quantified it in the form of a study.” Sacora, 628 F.3d
30 SAFARI CLUB INT’L V. HAALAND

at 1069; see Peck v. Thomas, 697 F.3d 767, 776 (9th Cir.
2012) (holding that an agency “is entitled to invoke its
experience as a justification for [a] rule”). Stated differently,
any common sense and predictive judgments undergirding a
rule promulgated by an agency may properly be attributed to
the agency’s specialized subject-matter expertise. See FCC
v. Fox Television Stations, 556 U.S. 502, 521 (2009);
Phoenix Herpetological Soc’y v. U.S. Fish & Wildlife Serv.,
998 F.3d 999, 1006 (D.C. Cir. 2021). This principle of
administrative law applies with particular force where, as
here, the “agency’s predictive judgment (which merits
deference) makes entire sense.” Fox Television Stations,
556 U.S. at 521. In such contexts, the agency need only
articulate a rational basis for the disputed decision or rule.
See Arrington v. Daniels, 516 F.3d 1106, 1114 (9th Cir.
2008); accord Dep’t of Com., 139 S. Ct. at 2570–71 (holding
that, where available evidence required a “weighing of
incommensurables under conditions of uncertainty,” the
agency had satisfied its legal obligation to “consider the
evidence and give reasons for [the agency’s] chosen course
of action”); Sacora, 628 F.3d at 1069 (stipulating that the
APA does not require an agency to “support its conclusions
with empirical research” during the administrative
rulemaking process).

Applying these principles, it is significant that coyotes,
lynx, and wolves are all wary animals that occur in low
densities in the Skilak WRA, which extends across a
relatively small land area within the Kenai Refuge. 81 Fed.
Reg. 27037–38. The State approved sport hunting of these
species in the Skilak WRA because this area is close to major
population centers and highly accessible, inviting an
inference that the hunting of coyotes, lynx, and wolves will
be sufficiently popular to the point where this recreational
activity would likely create hunting pressure on these
 SAFARI CLUB INT’L V. HAALAND 31

species. See 81 Fed. Reg. 27038–39. And the record further
confirms that the combination of “easy access and liberal
harvest strategies” may adversely affect Alaskan lynx and
wolf populations. The agency logically concluded from this
information that hunting of coyotes, lynx, and wolves would
likely affect their behavior and reduce their density in the
Skilak WRA. 81 Fed. Reg. 27038. These changes would
conflict with FWS’ management objectives for the Skilak
WRA by greatly “degrad[ing] opportunities for wildlife
observation, photography, and environmental education and
interpretation.” Id. It stands to reason that hunting and
killing members of highly dispersed species like coyotes,
lynx, and wolves within a confined land area such as the
Skilak WRA would greatly reduce opportunities to observe
those three species in the Skilak WRA. See id. Because
there is a rational basis for the Kenai Rule’s ban on the
hunting of coyotes, lynx, and wolves in the Skilak WRA, see
Arrington, 516 F.3d at 1114, which was an “exercise in logic
rather than clairvoyance,” see Fox Television Stations,
556 U.S. at 521, this prohibition is not “so implausible that
it could not be ascribed to a difference in view or the product
of agency expertise,” and we have no reason to grant relief
on this basis, see Kalispel Tribe, 999 F.3d at 688.

b.

Safari Club urges that the record defeats FWS’ finding
that hunting of coyotes, lynx, and wolves in the Skilak WRA
will reduce their observability there. This argument relies
on: (1) a 2007 compatibility determination (CD) that hunting
has little effect on most wildlife, (2) FWS allowing hunting
of other species in the Skilak WRA, 50 C.F.R.
§ 36.39(i)(6)(iii)–(iv); and (3) the Board’s finding that
hunting coyotes, lynx, and wolves in the Skilak WRA will
not limit their observability there.
32 SAFARI CLUB INT’L V. HAALAND

None of these points supports Safari Club. The 2007 CD
is irrelevant because it pertains to the hunting program in
effect at the time, which did not include coyotes, lynx, and
wolves in the Skilak WRA. Nor is hunting of other species
relevant to whether hunting coyotes, lynx, and wolves in the
Skilak WRA will make them less observable there. And the
Board’s judgment regarding the effect of hunting on coyotes,
lynx, and wolves in the Skilak WRA is irrelevant. Agencies
have discretion to rely on their own expertise, see Lands
Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010), and
where, as here, there is little data related to a contested
agency action, opposing discussion that “is itself highly
speculative” is insufficient to defeat disputed agency
assumptions and conclusions, see Greenpeace Action v.
Franklin, 14 F.3d 1324, 1336 (9th Cir. 1992).

c.

Safari Club contests the Kenai Rule on the basis that
FWS did not explain its changed reason for banning coyote,
lynx, and wolf hunting in the Skilak WRA. Per Safari Club,
this hunting restriction was initially grounded in preemption
of predator control, but the final Kenai Rule predicated it on
minimization of conflict between refuge uses and public
safety. We reject these arguments because Safari Club
mischaracterizes the record.

In 2013, FWS informed the Board that hunting of
coyotes, lynx, and wolves in the Skilak WRA conflicted with
FWS’ long-standing management objectives and current
management plan for the area. 78 Fed. Reg. 66063. Since
the mid-1980s, the agency’s management plans for the
Skilak WRA have prioritized environmental education and
wildlife viewing, and FWS has restricted hunting and
trapping in the area so “wildlife would become more
abundant, less wary, and more easily observed.” 81 Fed.
 SAFARI CLUB INT’L V. HAALAND 33

Reg. 27038. The final Kenai Rule banned the hunting of
coyotes, lynx, and wolves within the Skilak WRA for the
same reason, to facilitate wildlife viewing, and was adopted
to ensure consistency with the 2007 management plan for the
area. 81 Fed. Reg. 27039. Given this consistency in FWS’
rationale for banning hunting of coyotes, lynx, and wolves
in the Skilak WRA, reversal of the summary judgment order
is unwarranted.

d.

Safari Club seeks reversal of the summary judgment
order because the district court improperly imposed upon the
State and Safari Club the burden of identifying the evidence
or data in the record that FWS ignored in justifying its ban
on coyote, lynx, and wolf hunting in the Skilak WRA. In the
alternative, Safari Club asserts that, even if it had to identify
materials ignored by FWS, it carried this burden by citing a
supplemental EA for the 1985 Kenai Refuge conservation
plan and two letters from the State to FWS regarding
development of a Skilak WRA conservation plan. These
contentions are unsupported by the law or the record.

To the extent that Safari Club chose to challenge the
Kenai Rule as arbitrary and capricious because the agency
did not address contrary record evidence, Safari Club had to
support its arguments by specifically identifying the
allegedly ignored record evidence for the district court.
Otherwise, Safari Club’s contentions on this point would
consist of bare assertions unsupported by evidence in the
record, which cannot survive summary judgment. See Fed.
R. Civ. P. 56(c)(1)(A)–(B) (noting that, at the summary
judgment stage, parties must support claims by “citing to
particular parts of materials in the record,” or showing that
the cited materials cannot create a genuine dispute of
material fact for trial).
34 SAFARI CLUB INT’L V. HAALAND

Safari Club nevertheless mischaracterizes the
supplemental EA for the 1985 Kenai Refuge conservation
plan, which defines lynx and wolves as wilderness-
dependent species and states that “[i]ncreased recreational
use would have negligible impacts over most of this area, but
could result in some displacement of wilderness-dependent
wildlife from the Skilak [WRA].” This supports, rather than
defeats, FWS’ conclusion that the hunting of coyotes, lynx,
and wolves in the Skilak WRA would reduce opportunities
for the public to view these species therein. 81 Fed. Reg.
27038. Safari Club’s briefing and the administrative record
also undercut its claim that FWS ignored this supplemental
EA in enacting the final Kenai Rule. Safari Club describes
this supplemental EA as “attached to” the 1985 Kenai
Refuge conservation plan, and the final Kenai Rule cites to
this 1985 conservation plan three times. See 81 Fed. Reg.
27031, 27038, 27039. In this context, we cannot, as Safari
Club urges, vacate the Kenai Rule on the basis that FWS
improperly ignored the supplemental EA for the 1985 Kenai
Refuge conservation plan in enacting this rule. 81 Fed. Reg.
27031.

Safari Club’s discussion of two letters from the State to
FWS regarding the development of the 2007 management
plan and 2010 conservation plan for the Skilak WRA is not
persuasive because these documents are not part of the
administrative record for the final Kenai Rule, a fact Safari
Club concedes. Powell, 395 F.3d at 1029–30. Nor do we
credit Safari Club’s claim that these documents should have
been in the administrative record.

“[A] court reviewing an agency’s action may examine
extra-record evidence only in limited circumstances that are
narrowly construed and applied.” Goffney v. Becerra,
995 F.3d 737, 747–48 (9th Cir. 2021) (cleaned up). These
 SAFARI CLUB INT’L V. HAALAND 35

circumstances exist where: (1) admission of extra-record
evidence is necessary to ascertain whether the agency
considered all relevant factors and explained its decision;
(2) the agency relied on documents not in the record;
(3) clarification of technical matter is needed; or (4) the
agency acted in bad faith. Powell, 395 F.3d at 1030. Safari
Club sets out no colorable arguments that any of these four
circumstances are present here. It urges supplementation of
the administrative record because: (1) the district court
erroneously required Safari Club to identify evidence that
FWS ignored in enacting the Skilak WRA aspect of the
Kenai Rule; (2) the Skilak WRA element of the Kenai Rule
is invalid for lack of supporting data; and (3) the letters from
the State to FWS contain data showing that hunting of
coyotes, lynx, and wolves in the Skilak WRA would not
reduce opportunities to view those species therein. We have
already explained that the first two contentions are incorrect.
Nor do the letters cited by Safari Club contain any data as to
the impact of hunting of coyotes, lynx, and wolves in the
Skilak WRA on the observability of those species in the
Skilak WRA. We decline to supplement the administrative
record here because Safari Club sets out no grounds for
doing so. See Goffney, 995 F.3d at 747–48. And agency
actions benefit from a presumption of regularity, meaning
courts must “presume that [the] agency properly designated
the Administrative Record absent clear evidence to the
contrary.” Id. at 748. Safari Club identifies no such clear
evidence, so we must presume that FWS properly defined
the administrative record. See id. As a result, we will not
consider Safari Club’s extra-record evidence. See id.

iii.

Safari Club finally claims that enactment of the Kenai
Rule was procedurally improper because FWS did not make
36 SAFARI CLUB INT’L V. HAALAND

necessary predicate findings that the baiting of brown bears
and the hunting of coyotes, lynx, and wolves in the Skilak
WRA are incompatible with refuge purposes. This assertion
relies on a 2007 compatibility determination (CD) in which
FWS classified hunting of brown bears and furbearers,
which Safari Club defines as “predators,” as a compatible
use of the Kenai Refuge. Safari Club further notes that the
2007 CD deemed black bear baiting a compatible use of the
Kenai Refuge and treats this conclusion as applicable to
brown bears.

But ANILCA does not require FWS to follow any formal
procedures or issue any findings before regulating human
uses of the Kenai Refuge. See ANILCA § 304(b). FWS may
exercise this power based on various factors including
compatibility with refuge purposes, public health and safety,
and resource protection. 50 C.F.R. § 36.42(b). FWS
addressed all of these factors in the Kenai Rule. 81 Fed. Reg.
27035–39. And, although FWS must give advance notice,
conduct public hearings, and publish its decision in the
Federal Register before issuing a hunting restriction or
permanent closure, FWS complied with these procedures, so
reversal on procedural grounds is unwarranted. See
50 C.F.R. § 36.42(e); 81 Fed. Reg. 27032; 78 Fed. Reg.
66061–64.

In any case, Safari Club’s reliance on the 2007 CD is
unavailing because it states that hunting is a compatible use
of the Kenai Refuge subject to any stipulations needed to
ensure compatibility. These stipulations included the
restrictions on brown bear baiting and hunting in the Skilak
WRA “for visitor safety [or] to protect other values such as
promoting wildlife viewing and photography.” FWS’
codification of these restrictions in the Kenai Rule is
consistent with this CD. 81 Fed. Reg. 27039; 78 Fed. Reg.
 SAFARI CLUB INT’L V. HAALAND 37

66063. The agency would otherwise have neglected its
statutory duty to manage the Kenai Refuge in line with the
purpose of that refuge and its management plans. ANILCA
§§ 303(4)(B)(i); 304(b); 304(g)(3). We reject Safari Club’s
request to disturb the district court’s summary judgment
order on grounds relating to the 2007 CD for these reasons.

D. The NEPA Claim

The State and Safari Club set out a two-part NEPA
argument. They first assert that the Kenai Rule changed the
environmental status quo in the Kenai Refuge such that
NEPA review is required. Second, the State and Safari Club
claim that FWS improperly fulfilled its NEPA obligations
for the Kenai Rule through categorical exclusions (CE). We
reject this NEPA claim of the State and Safari Club.

Even assuming NEPA’s procedures apply to the Kenai
Rule, 1 “[a]n agency satisfies NEPA if it applies its
categorical exclusions and determines that neither an EA nor
an EIS is required, so long as the application of the
exclusions to the facts of the particular action is not arbitrary
and capricious.” Bicycle Trails Councils of Marin v. Babbitt,
82 F.3d 1445, 1456 n.5 (9th Cir. 1996). The disputed parts
of the Kenai Rule codified longstanding constraints on
1
The government asserts that the Kenai Rule maintained the
environmental status quo and NEPA is inapplicable because “NEPA
procedures do not apply to federal actions that maintain the
environmental status quo.” Kootenai Tribe of Idaho v. Veneman,
313 F.3d 1094, 1114 (9th Cir. 2002), abrogated on other grounds by
Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
We need not address this issue because it is unnecessary to resolve this
case. And the district court’s grant of summary judgment on this basis
does not control because we may affirm “on any ground supported by
the record.” Oyama v. Univ. of Haw., 813 F.3d 850, 860 (9th Cir. 2015)
(cleaned up).
38 SAFARI CLUB INT’L V. HAALAND

hunting in the Kenai Refuge, 81 Fed. Reg. 27035, 27038;
80 Fed. Reg. 29279, and the fact that these limitations
changed from state to federal restrictions did not alter the
permitted levels of use in the Kenai Refuge. In this context,
FWS sensibly decided that the Kenai Rule fits a CE for
“issuance of special regulations for public use of [FWS]-
managed land, which maintain essentially the permitted
level of use and do not continue a level of use that has
resulted in adverse environmental impacts.” 81 Fed. Reg.
27033. No basis for reversal exists here. See Bicycle Trails,
82 F.3d at 1456 n.5; Cal. v. Norton, 311 F.3d 1162, 1176
(9th Cir. 2002) (“In many instances, a brief statement that a
categorical exclusion is being invoked will suffice [to
comply with NEPA].”); Nat’l Tr. for Historic Pres. v. Dole,
828 F.2d 776, 781 (D.C. Cir. 1987) (“By definition, CE’s are
categories of actions that have been predetermined not to
involve significant environmental impacts, and therefore
require no further agency analysis absent extraordinary
circumstances.”).

The State and Safari Club urge us to hold otherwise
because “extraordinary circumstances” required an EIS or
EA for the Kenai Rule. We disagree. The State and Safari
Club incorrectly suggest that their opposition to the Kenai
Rule and the ensuing public controversy is an extraordinary
circumstance that triggered FWS’ obligation to prepare an
EIS or EA. “Mere opposition to an action does not, by itself,
create a controversy within the meaning of NEPA
regulations.” Am. Wild Horse Campaign v. Bernhardt,
963 F.3d 1001, 1011 (9th Cir. 2020). “A project is highly
controversial if there is a substantial dispute about the size,
nature, or effect of the major Federal action rather than the
existence of opposition to a use.” Bark v. U.S. Forest Serv.,
958 F.3d 865, 870 (9th Cir. 2020) (cleaned up). No
documents cited by the State and Safari Club indicate that
 SAFARI CLUB INT’L V. HAALAND 39

the disputed parts of the Kenai Rule have highly
controversial, uncertain, or unique environmental effects, so
reversal is unjustified for lack of any “substantial evidence
in the record that exceptions to the [CE] may apply.”
Norton, 311 F.3d at 1176; see Am. Wild Horse, 963 F.3d at
1008 (“NEPA regulations do not anticipate the need for an
EIS [or EA] anytime there is some uncertainty.”).

In the alternative, the State and Safari Club seek remand
of the Kenai Rule to FWS for NEPA analysis because FWS
did not adequately explain its application of the CE for
regulations that maintain existing levels of use of FWS-
managed lands, or sufficiently justify its conclusion that no
extraordinary circumstances are present. We will not grant
relief on this basis because, to the extent that any such errors
may exist, they were harmless for the reasons previously
stated. See 5 U.S.C. § 706 (“[D]ue account shall be taken of
the rule of prejudicial error [in reviewing agency
decisions].”); Idaho Wool Growers Ass’n v. Vilsack,
816 F.3d 1095, 1104–05 (9th Cir. 2016); Drakes Bay Oyster
Co. v. Jewell, 747 F.3d 1073, 1090–91 (9th Cir. 2014).

V. CONCLUSION

The district court properly entered summary judgment
for FWS on all claims.

AFFIRMED.