Alaska Legislative Council v. Babbitt

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 1999 Decided July 13, 1999

No. 98-5405

The Alaska Legislative Council, et al.,
Appellants

v.

Bruce Babbitt, Secretary, United States
Department of the Interior, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(98cv00069)

---------

Mark L. Pollot argued the cause for appellants. With him
on the briefs was Robin W. Grover.

Elizabeth Ann Peterson, Attorney, U.S. Department of
Justice, argued the cause for the federal appellees. With her
on the brief were Lois J. Schiffer, Assistant Attorney Gener-
al, David C. Shilton and Dean K. Dunsmore, Attorneys.

 Robert C. Erwin was on the brief for amici curiae Dale
Bondurant, et al.

Walter T. Featherly was on the brief for amici curiae
Mary Bishop, et al.

Before: Wald, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: The Alaska Legislative Council is
a "permanent interim committee and service agency of the
legislature." See Alaska Stat. s 24.20.010 (Michie 1996). It
is "composed of the president of the senate and six other
senators appointed by the president, and the speaker of the
house of representatives and six other representatives ap-
pointed by the speaker." See id. s 24.20.020. In January
1998, the Council and seventeen individual members of the
Alaska State Legislature, in their capacities as legislators and
as individuals, brought a complaint in the district court ob-
jecting to the Alaska National Interest Lands Conservation
Act and the actions of the federal government thereunder.

The complaint, which sought declaratory and injunctive
relief, focused on the federal management of subsistence
taking of fish and wildlife on federal public lands in Alaska
pursuant to the Lands Conservation Act. Of the individual
plaintiffs, two claimed they ate fish and game from Alaska,
two alleged they engaged in fishing, two alleged they engaged
in hunting, eleven said they hunted and fished in the State;
all claimed that the defendants' actions would adversely affect
their hunting or fishing or their consumption of fish and
game. The Lands Conservation Act, according to the com-
plaint, infringes on State prerogatives in violation of the
Commerce Clause, the Enumerated Powers Doctrine and
principles of federalism embodied in the Tenth and Eleventh
Amendments to the United States Constitution; the Act's
rural subsistence use priority violates the equal protection
component of the due process clause of the Fifth Amendment
to the United States Constitution, because it discriminates
between users of land on the basis of residency; and the
federal government's implementation of the Act violates the

Administrative Procedure Act. See Alaska Legislative Coun-
cil v. Babbitt, 15 F.Supp.2d 19, 21 (D.D.C. 1998).

Several years before the Council filed its action here, the
State of Alaska brought a complaint raising similar allega-
tions. See Katie John v. United States, 1994 WL 487830 at
*5 (D. Alaska Mar. 30, 1994). On its own motion, the district
court in Alaska concluded that the State's complaint was
without merit and dismissed it. See id. at *9. The State filed
a notice of appeal, but later stipulated to a dismissal with
prejudice. See State of Alaska v. Babbitt, 72 F.3d 698, 700
n.2 (9th Cir. 1995). The Ninth Circuit denied the motion of
the Alaska State Legislature to intervene or to substitute
itself as the appellant. See id.

In view of these earlier proceedings, the district court
dismissed this complaint on the ground of res judicata, and
also on the grounds that the statute of limitations had run on
certain claims and that others were not ripe. See Alaska
Legislative Council, 15 F.Supp.2d at 22-23, 24, 26. We
affirm, but not entirely for the reasons given by the district
court.

I

A

The initial question, which we decide against the plaintiffs,
is whether the district court had jurisdiction to adjudicate the
constitutional and statutory claims of the Council and of the
individual legislators, in their official capacity, regarding the
Act's creation of a hunting and fishing "priority" for rural
subsistence users on federal public lands in Alaska, and the
federal defendants' implementation of the Act. To under-
stand why we believe the court could not hear this aspect of
the case--why, that is, the plaintiffs lacked standing--it is
necessary first to offer a brief description of the Alaska
National Interest Lands Conservation Act.

Enacted in 1980, the Lands Conservation Act had as one of
its stated purposes to maintain "sound populations of, and
habitat for, wildlife species of inestimable value to the citizens

of Alaska and the Nation," and to "provide the opportunity
for rural residents engaged in a subsistence way of life to
continue to do so." See Alaska National Interest Lands
Conservation Act, Pub. L. No. 96-487, 94 Stat. 2374 (1980), 16
U.S.C. s 3101(b), (c). To this end, the Act established a
priority for "the taking on public lands of fish and wildlife for
nonwasteful subsistence uses ... over the taking on such
lands of fish and wildlife for other purposes." See 16 U.S.C.
s 3114(a). The Act defined "subsistence uses" as the "cus-
tomary and traditional uses ... of wild, renewable resources
for direct personal or family consumption," by "rural Alaska
residents"--those persons who reside in communities or areas
that are "substantially dependent on fish and wildlife for
nutritional and other subsistence uses." See 16 U.S.C.
s 3113. If it became necessary to limit subsistence taking of
fish and game, the Act provided that the priority would be
implemented through limitations "based on the application of
the following criteria: (1) customary and direct dependence
upon the populations as the mainstay of livelihood; (2) local
residency; and (3) the availability of alternative resources."
See 16 U.S.C. s 3114(a).

The Act applied to federal public lands in Alaska, that is, to
lands "the title to which is in the United States." See 16
U.S.C. s 3102(2), (3). Public lands, as defined in the Act, do
not include "land selections of the State of Alaska which have
been tentatively approved or validly selected under the Alas-
ka Statehood Act1 and lands which have been confirmed to,

__________
1 The Alaska Statehood Act declared Alaska admitted into the
Union on an equal footing with the other States. See Alaska
Statehood Law, Pub. L. No. 85-508 s 1, 72 Stat. 339 (1958) (codified
at note preceding s 21 of Title 48, Territories and Insular Posses-
sions). It provided that the United States would retain title to all
property in Alaska to which it had title, including public lands, and
that Alaska would retain title to all property, title to which was in
the Territory of Alaska or any of the subdivisions. See id. s 5, 72
Stat. 340. The Statehood Act also permitted Alaska to select
acreage from certain national forests and other federal public lands
within thirty-five years after its admission to the Union. See id.

validly selected by, or granted to the Territory of Alaska or
the State under any other provision of Federal law." See 16
U.S.C. s 3102(3)(A).

The Act authorized the State of Alaska to "assume manage-
ment for the taking of fish and wildlife on the public lands for
subsistence uses pursuant to this title," on condition that the
State enacted and implemented laws of general applicability
consistent with the Act's subsistence use priority, definitions
and local and regional participation requirements. See 16
U.S.C. s 3115(d)(1). As of 1978, the State of Alaska had
adopted a statute giving "subsistence uses ... priority over
sport and commercial uses." See Madison v. Alaska Dep't of
Fish & Game, 696 P.2d 168, 170-71 (Alaska 1985). Subsis-
tence uses were defined as "customary and traditional uses
... for direct personal or family consumption." See id. at
170. Limiting criteria contained in regulations promulgated
by the Alaska Board of Fisheries determined subsistence
users by their area of residence. See id. at 172 n.8, 174. On
May 14, 1982, after the Secretaries of the Interior and
Agriculture reviewed and approved the State's regulatory
scheme, Alaska became responsible for all regulation of sub-
sistence uses of its wild renewable resources.

In February 1985, the Supreme Court of Alaska invalidated
the Board's limiting criteria as inconsistent with state law.
See Madison, 696 P.2d at 178. The Interior Secretary then
withdrew certification of the State's regulatory scheme.
When the State later amended its legislation to limit subsis-
tence use to use by residents of rural areas, the Alaska
Supreme Court declared the amended statute in violation of
the State Constitution. See McDowell v. State of Alaska, 785
P.2d 1, 9 (Alaska 1989). The court stayed the effect of its
decision until July 1, 1990. At that time, the State had no
laws in effect consistent with the Lands Conservation Act's
rural subsistence use priority. The Department of the Interi-
or and the Department of Agriculture jointly published tem-
porary fish and wildlife management regulations, applicable

__________
s 6(a), (b), 72 Stat. 340, as amended by Pub. L. No. 96-487,
s 906(a)(1), (2), 94 Stat. 2371, 2437.

to public lands as defined by the Act, implementing the rural
subsistence priority.2 See Temporary Subsistence Manage-
ment Regulations for Public Lands in Alaska, 55 Fed. Reg.
27,114, 27,118 (1990). The final regulations, promulgated in
May 1992, made no significant changes to the scope of federal
authority. See Subsistence Management Regulations for
Public Lands in Alaska, Subparts A, B, and C, 57 Fed. Reg.
22,940 (1992).

B

As to the claims of the Council and the individuals in their
official capacity as state legislators, we are guided by Raines
v. Byrd, 521 U.S. 811 (1997), a decision rejecting the standing
of members of Congress in federal court, and the Supreme
Court's interpretation in Raines of Coleman v. Miller, 307
U.S. 433 (1939), a case dealing with the standing of state
legislators. Raines involved claims brought by federal legis-
lators against executive branch officials, and applied a partic-
ularly rigorous standing analysis in light of the separation-of-
powers concerns raised in that case. See Raines, 521 U.S. at
819-20, see also Chenoweth v.Clinton, No. 98-5095, slip op. at
7 (D.C. Cir. July 2, 1999). But the Court did not limit its
analysis to interbranch disputes, and we read its discussion of
Coleman to apply to suits brought by state as well as federal
legislators. The bottom line is that the claimed injuries of
the individual Alaskan legislators and the Council are not
legally or judicially cognizable. The injuries are not "person-
al" or particularized to them; and they have not established a
"personal stake" in the alleged dispute, as Article III of the
Constitution demands. See Raines, 512 U.S. at 819.

According to the complaint, the Alaska State Constitution
confers upon the individual legislators "an affirmative duty to
legislate for the management of all of the State's resources
including ... fish and wildlife." The complaint goes on:

__________
2 The Regulations noted that "[n]avigable waters generally are
not included within the definition of public lands." See Temporary
Subsistence Management Regulations for Public Lands in Alaska,
55 Fed. Reg. 27,114, 27,118 (1990).

Alaska legislators "are obligated by ... oath to act in the best
interests of the citizens of the State as a whole, to abide by
the limitations of the Constitution of the State of Alaska with
respect to the common use of fish and wildlife resources and
to make a conscientious application of their authority to
protect and preserve the public trust for all citizens of the
State of Alaska." The legislators also state that they are
similarly required to support the Constitution of the United
States. See U.S. Const. art. VI. But they and the Council
say that because the federal statute and its implementation
are illegal, the federal government has interfered with their
state duties, and has nullified their legislative prerogatives
regarding fish and wildlife management.

The reading Raines gave to Coleman establishes that
injuries of the sort alleged here do not deprive individual
legislators of something to which they are personally entitled.
In narrow circumstances, legislators have a judicially recog-
nized, personal interest in maintaining the "effectiveness of
their votes." See Raines, 521 U.S. at 821-22 (citing Coleman
v. Miller, 307 U.S. at 438 (1939)).3 But there is not the
slightest suggestion here that these particular legislators had
the votes to enact a particular measure, that they cast those
votes or that the federal statute or the federal defendants did
something to nullify their votes. See id. at 823. What we see
instead is, at most, a claim that the Lands Conservation Act,
either because of the Supremacy Clause or the rulings of the
Alaska Supreme Court, had the effect of rendering the Alaska
Legislature unable to control hunting and fishing on federal
lands within the State. See 16 U.S.C. s 3115(d). If for these

__________
3 The individual legislators do not allege injury to other interests
that could provide a basis for legislative standing. For example, an
elected representative excluded from the legislature and denied his
salary alleges a personal injury because he has been "singled out
for specially unfavorable treatment as opposed to other Members
of" that body. See Raines, 521 U.S. at 821 (citing Powell v.
McCormack, 395 U.S. 486, 496 (1969)). Similarly, a representative
whose vote was denied "its full validity in relation to the votes of
[his] colleagues," might also allege a personal injury sufficient to
confer standing. See id. at 824 n.7.

reasons the individual legislators cannot enact valid laws
because the laws would conflict with federal law, or cannot
enact legislation implementing the Act because this would be
at odds with their State Constitution, their loss (or injury) is a
loss of political power, a power they hold not in their personal
or private capacities, but as members of the Alaska State
Legislature. See Raines, 521 U.S. at 821. Furthermore, the
complaint nowhere mentions any specific act or regulation of
the Alaska Legislature that the Lands Conservation Act has
overruled, nullified or otherwise adversely affected. In fact,
federal regulations promulgated pursuant to the Act provide
that "[s]tate fish and game regulations [applicable] to public
lands and such laws are hereby adopted and made a part of
these regulations to the extent they are not inconsistent with,
or superseded by this Part." See 57 Fed. Reg. at 22,955.
While state legislation or regulations in conflict with the
federal statute or federal regulations may be unenforceable--
for example, the Federal Subsistence Board can close public
lands to hunting and fishing even if the State permits it, see
id.--that type of injury does not entitle individual legislators
to seek a judicial remedy. Their supposed injury is nothing
more than an "abstract dilution of institutional legislative
power" to regulate and manage fish and wildlife resources,
and we are not sure it amounts to even this much. See
Raines, 521 U.S. at 826.

The Alaska Legislative Council stands on no better consti-
tutional footing despite its authorization under State law to
"sue in the name of the legislature during the interim be-
tween sessions" if a majority vote of the Council approves.
See Alaska Stat. s 24.20.060(4)(F) (Michie 1996). Even if a
state legislature and its authorized representative have stand-
ing to defend the constitutionality of a state statute attacked
in federal court, the position of the Alaska Legislature in this
case is not comparable. See, e.g., Karcher v. May, 484 U.S.
72, 84 (1987) (White, J., concurring). The Council complains
about federal limitations on State prerogatives in the manage-
ment of fish and wildlife. This is the same complaint the
individual legislators make in their official capacity. The
resulting injury is not to the Legislature and it is not to the

individual legislators. It is to the State itself. The authority
to manage fish and wildlife belongs to the State as a whole.4
If the Lands Conservation Act diminishes the State's authori-
ty, it injures state sovereignty, not legislative sovereignty.5
The Legislature is not authorized to sue on behalf of the
State, see Alaska Stat. s 24.20.060(4)(F)--the Governor holds
that power, see Alaska Const. art. III, s 16--and the Legisla-
ture suffers no separate, identifiable, judicially cognizable
injury that entitles it to sue on its own behalf.

C

The legislators, in their individual capacities, seek to mount
an equal protection challenge to the Act. They view the Act's
rural subsistence use preference as discrimination against
Alaska's urban residents, and brand the preference irrational
because the rural/non-rural distinction ignores need, income
level, dependence on subsistence resources, community char-
acter, and ethnic and racial membership. They also claim
that federal designations of certain communities as "rural,"
pursuant to the statute, are arbitrary and irrational.

For the purpose of establishing standing, it is not enough
merely to claim discrimination. The plaintiffs must be able to
trace the discrimination to some "distinct and palpable" inju-
ry to them. See Allen v. Wright, 468 U.S. 737, 751 (1984);
United States v. Hays, 515 U.S. 737, 743-44 (1995). At the
pleading stage, general factual allegations may suffice to
establish injury and are presumed to "embrace those specific

__________
4For example, the Alaska Statehood Act gave the State of Alaska
the authority to administer and manage fish and wildlife resources,
after the Alaska State Legislature made adequate provision for
their administration, management and conservation. See Pub. L.
No. 85-508, s 6(e), 72 Stat. 339, 340-41 (1958). The entire statute
speaks in terms of property and authority given to the State of
Alaska, not to the Alaska State Legislature.

5Indeed, the State, represented by the Attorney General, brought
a lawsuit challenging federal authority to regulate subsistence
taking of fish and game under the Act. See Katie John, 1994 WL
487830.

facts that are necessary to support the claim." See Lujan v.
National Wildlife Fed'n, 497 U.S. 871, 889 (1990). The
individuals' claims here fail to meet even this low threshold.
See, e.g., Gottlieb v. FEC, 143 F.3d 618, 622 (D.C. Cir. 1998).
Each of them is, according to the complaint, a non-rural
resident of Alaska; some hunt and fish in the State of Alaska,
others only fish, others only hunt, and two apparently engage
in neither activity but eat fish and game. They say federal
law limits their activities, yet the facts alleged do not indicate
that the law even reaches or in any way affects their activi-
ties, critical elements in establishing their standing to sue.
The subsistence preference in the statute and the regulations
affect public lands, see 16 U.S.C. s 3114; 57 Fed. Reg. at
22,951, but none of these plaintiffs claim to hunt or fish on
those lands. See Sierra Club v. Morton, 405 U.S. 727, 734-35
(1972); United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 412 U.S. 669, 683-85 (1973).
As to fishing, they do not state where they fish or what
species they seek or how federal law limits their fishing. As
to game, the complaint mentions federal restrictions on hunt-
ing moose in the Tongass National Forest, caribou in a sector
in east central Alaska, and musk ox in a region in western
Alaska. But no plaintiff claims to hunt these animals in these
places. Plaintiffs do allege that they "desire[ ] and intend[ ]
to, in the future, hunt and fish within the State of Alaska."
But the mere desire to hunt or fish in the future, supposedly
limited in some unspecified way, falls short of demonstrating
the type of actual or imminent injury sufficient under Article
III to constitute an injury in fact. Compare Lujan v. Defend-
ers of Wildlife, 504 U.S. 555, 563-65 (1992). That the federal
Act and its implementing regulations could reduce the oppor-
tunities for hunters and fishermen from non-rural areas in
Alaska is, on the face of the complaint, perhaps conceivable.
But that is not enough. Pleadings must be more than "an
ingenious academic exercise in the conceivable." See SCRAP,
412 U.S. at 688.

In addition to limiting the hunting of moose, caribou and
musk ox, the complaint also alleges that federal regulations
have expanded the taking of lynx, black bear, ruffed grouse

and Dall sheep on certain public lands beyond previous State
bag limits. No individual plaintiff claims an interest in these
particular animals for hunting or any other recreational pur-
pose. To the extent the complaint states any injury to
plaintiffs, it is not on the basis that the named legislators are
being harmed in their individual capacity. The harm alleged
is put in terms of the effect on the State Legislature, which--
so the complaint states--cannot protect lynx, ruffed grouse,
black bear and Dall sheep or cannot remove federal restric-
tions on hunting moose, caribou and musk ox. Because the
complaint reveals no perceptible harm to the legislators in
their individual capacity, they lack standing to bring their
claims.

D

The complaint also alleges that federal officials exceeded
their authority under the Act by extending regulations be-
yond federal lands and thus violated the Administrative Pro-
cedure Act. Section 702 of the APA provides that: "[a]
person ... adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial
review thereof." 5 U.S.C. s 702. Are any plaintiffs "ad-
versely affected" within the meaning of the Lands Conserva-
tion Act? See National Wildlife Fed'n, 497 U.S. at 882-83.
To be so situated they must satisfy all constitutional standing
requirements and must demonstrate that their injury is "to
interests of the sort protected" by the statute. See Florida
Audubon Soc'y v. Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996)
(en banc); see also Animal Legal Defense Fund, Inc. v.
Glickman, 154 F.3d 426, 431 (D.C. Cir. 1998) (en banc). The
Act, as plaintiffs' complaint states, does not authorize federal
officials to extend the subsistence preference to lands validly
selected by the State or other named parties. See 16 U.S.C.
s 3102(3). But apart from two conclusory sentences, the
complaint does not mention any federal activity on non-public
lands and it utterly fails to identify any "agency action"
affecting hunting and fishing on such lands, let alone hunting
and fishing by these particular plaintiffs. The regulations
currently in effect apply only to the "taking of fish and
wildlife on public lands in the State of Alaska." See 57 Fed.
Reg. at 22,951. The definition of "public lands" explicitly

excludes "land selections of the State of Alaska which have
been tentatively approved or validly selected under the Alas-
ka Statehood Act and lands which have been confirmed to,
validly selected by, or granted to the Territory of Alaska or
the State under any other provision of Federal law." See id.
at 22,952.

In nevertheless asserting that the federal defendants are
regulating beyond federal lands, plaintiffs apparently believe
that "public lands," as defined in the Act, cannot be read to
include waters in which the United States has a reserved
water right,6 and that if the ownership of such a right
includes the power to manage fish and game, the federal
defendants cannot rest on a mere assertion that they have
such a right. They must first "establish" its existence and
then adopt regulations based upon it. The federal defendants
urge us to dispose of this claim on ripeness grounds. Subsis-
tence management regulations identify federal land units in
which reserved water rights exist and subject those units to
the Act's federal subsistence priority.7 See Subsistence Man-
agement Regulations for Public Lands in Alaska, Subparts A,
B, C, and D, Redefinition to Include Waters Subject to
Subsistence Priority, 64 Fed. Reg. 1276 (1999). But these
regulations, though final, will not take effect until October 1,
1999. If the Secretary of the Interior certifies that the
Alaska State Legislature has amended its Constitution so that
it may pass laws consistent with the Act before that time, the
regulations will not take effect until December 1, 2000. See
id. Plaintiffs seek a declaratory judgment and an injunction
against the regulations; we do not generally apply these

__________
6 In State of Alaska, 72 F.3d at 703-04, the Ninth Circuit held
that the United States has reserved water rights in some navigable
waters in Alaska and by virtue of those rights, interests in some
navigable waters. The Court concluded that such waters are
included within the definition of "public lands." It directed the
federal agencies that administer the subsistence priority to identify
those waters.

7 When plaintiffs filed their first amended complaint, these regu-
lations were not yet final.

remedies to administrative determinations "until an adminis-
trative decision has been formalized and its effects felt in a
concrete way by the challenging parties." See Abbott Lab. v.
Gardner, 387 U.S. 136, 148-49 (1967). Although we therefore
have severe doubts whether the APA claim is ripe, there is no
need to decide the question. Our earlier discussion of the
individual plaintiffs' lack of standing applies as well to their
contentions regarding the APA. These plaintiffs have alleged
no injury--not even of the insufficient hypothetical or specu-
lative variety--that may be ascribed to federal regulations
applying the subsistence preference to waters in Alaska in
which the United States asserts reserved water rights. They
do not say they ever fished those waters, nor do they say they
ever will. See, e.g., Defenders of Wildlife, 504 U.S. at 564.
They mention only a general "desire[ ] and inten[t] to ...
fish," but when it comes to where they want to fish, what
species of fish they want to catch and how the regulations
would limit their fishing, the complaint is silent. Plaintiffs
have therefore failed to demonstrate the type of actual injury
Article III requires.

Plaintiffs also ask us to read their APA claim to encompass
a number of other supposedly excessive agency actions men-
tioned in their complaint.8 These include: "the designation of
management units, the issuance and denial of permits, the
setting of hunting seasons, bag limits, and methods of take."
As we have already mentioned, the complaint states that the
Federal Subsistence Board prohibits or restricts non-rural
Alaskans from hunting moose, caribou and musk ox in certain
areas, and allows the taking of lynx, ruffed grouse, black bear
and Dall sheep in others. For reasons previously given,
plaintiffs have failed to allege that their interests are "ad-
versely affected" by these actions, as the APA requires. See
5 U.S.C. s 702, see also National Wildlife Fed'n, 497 U.S. at
889. It is not enough for them to claim that they are
"deprived of their ability to hunt and fish." Hunt and fish
what, and where? What is meant by "ability"? The possibili-

__________
8 The district court did not do so. See Alaska Legislative Coun-
cil, 15 F.Supp.2d at 25.

ty they may wish to hunt these particular animals in these
particular areas at some time in the future? Such claims do
not allege "actual or imminent injury" and are insufficient to
confer standing. See, e.g., Defenders of Wildlife, 504 U.S. at
566-67. Nothing in the complaint gives the slightest indica-
tion that any one of the plaintiffs ever hunted or ate musk ox
or Dall sheep or any of the other named animals in the
regulated regions, or for that matter, anywhere else. See
Sierra Club, 405 U.S. at 734-35. The additional allegation in
the complaint that plaintiffs' "ability to enjoy the full abun-
dance of wildlife will be diminished if a remedy is not
provided" adds nothing.

The decision of the district court is affirmed.