The Olson Lawsuit
Robert C. Erwin
ABA No. 6101004
ERWIN & ERWIN, LLC
733 W. 4h Avenue, Suite 400
Anchorage, AK 99501
Telephone: (907) 276-3125
Telecopier: (907) 276-4125
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THE ALASKA CONSTITUTIONAL LEGAL
DEFENSE CONSERVATION FUND, INC.,
DALE BONDURANT, WARREN OLSON,
DANIEL A. DEVEREl1X,-SHANNON
FARRAH, JAMES P. JACOBSON, W. TOM
MINTER, and GARY YOUNKIN,
Plaintiffs,
vs.
BRUCE BABBITT, COMPLAINT FOR
DECLATORY
In his capacity as Secretary Of the Interior;
JUDGMENT AND INJUNCTIVE RELIEF
DANIEL GLICKMAN,
In his capacity as Secretary of Agriculture,
TOM FRY,
I In his capacity as Director, Bureau of Land
Management, U.S. Department of Interior,
MICHAEL DOMBECK,
In his capacities Chief, United States
Forest Service, United States Department
Of Agriculture,
THOMAS H. BOYD,
In his capacity as representative of the
Federal Subsistence Board,
Office of Subsistence Management,
United States Fish and Wildlife Service,
KEN THOMPSON, In his capacity as Regional Subsistence Program Leader, United States Forest Service, Alaska Region, UNITED STATES OF AMERICA, and DOES 1-50,
Defendants.
Plaintiffs The Alaska Constitutional Legal Defense Conservation Fund, Inc. (here in after "ACLDCF"), a non-profit corporation, Dale Bondurant, Warren Olson, Daniel A. Devereux, Shannon Farrah, James P. Jacobson, W. Tom Minter, and Gary Younkin, as individuals, and for their cause of action hereby state and allege as follows:
PRELIMINARY STATEMENT
1. This is an action for a Declaratory Judgment and Injunctive
Relief. Plaintiffs challenge the Defendants' actions in
proposing, adopting, and implementing statutes and regulations
which establish unconstitutional preferences for a prescribed
class of users of the common property public trust fish, wildlife
and water resources in the State of Alaska.
2. In 1980, Congress passed of the
Alaska National Interest Lands Conservation Act (hereinafter
"ANILCA"). ANILCA provides for the preferential
treatment among Users of states residents classified as
"rural" for the subsistence taking of fish and game on
federal public lands and state waters based upon (1) customary
and direct dependence of the populations as a mainstay of
livelihood (use and users3; (2) local residency (users); and (3)
the availability of alternative resources (uses).
3. After certifying (April, 1959)
and then decertifying (June, 1990) the State of Alaska's
management plan for subsistence use on federal public lands and
waters, effective October 1, 1999 (under regulations promulgated
July 1, 1999), the defendant agencies and department officials
have unconstitutionally preempted the State of Alaska's authority
to regulate hunting and- fishing therein; by mandating a
preference for a prescribed exclusionary class of
"rural" resident users of Alaska's common property fish
and wildlife resources.
4. The creation of
"rural" and "urban" community classifications
under ANILCA for preference of subsistence hunting and fishing is
completely arbitrary, adversely affects all Alaskans who reside
in areas classified as "urban," "rural" and
along with all citizens similarly situated residing outside the
State of Alaska, denies them equal protection of the laws, and is
contrary to the State of Alaska's Constitution and the United
States Constitution.
5. There currently exists between
Plaintiffs and Defendants, within the meaning of 28 USC § 2201,
a controversy over the meanings of, and the corresponding duties
and responsibilities imposed on the Defendants by the following:
(a) The United States Constitution, and specifically, the Fifth
Amendment; the property clause of Article IV, Section 3; the
commerce clause of Article I, Section 8; and the privileges and
immunities, due process and equal protection clauses of the
Fourteenth Amendment,
(b) The Constitution of the State of Alaska, and specifically,
Article I, Section 1, Inherent Rights; Article I, Section 7, Due
Process; Article VIII, Section 3, Common Use; Article VIII,
Section 15, No Exclusive Right of Fishery; and Article VIII,
Section 17, Uniform Application.
© The Alaska Statehood Act, specifically Section 1, Equal
Footing, Section 6(e), Section 6(m) and Section 8(c3 and
Statehood Compact;
(d) ANILCA;
(e) The Submerged Lands Act of 1953;
(f) The Public Trust and the Public Trust Doctrine.
6. The named individual
Plaintiffs, in their personal capacities, and ailindividuals
similarly situated, have been injured by the actions of the
Defendants in that Plaintiffs have been deprived of equal
consideration to hunt and fish the common property
fish and wildlife resources of Alaska. Plaintiffs have been
deprived of their opportunity to enjoy the availability of fish
and wildlife will be diminished, and they will continue to be
treated in an unlawfully discriminatory fashion in the absence of
relief.
7. The ACLDCF has been injured by
the actions of Defendants as it is now limited in its
responsibility to carry out its stated purposes of insuring that
all residents of Alaska can equally be able to enjoy the
resources of Alaska and promoting and educating all residents of
Alaska to conserve and protect these resources for the common
good and for sustained yield without discrimination or favor of
one group over another.
8. The Defendants' actions were
and are taken pursuant to Title VIII of ANILCA in contravention
of the Federal Land Policy and Management Act (hereinafter
"FLPMA") by Bruce Babbitt, Daniel Glickman, Tom Fry,
Michael Dombeck Thomas H. Boyd, and Ken Thompson in their
official capacities. As applied, these statutes and their
implementing regulations violate the United States Constitution,
the Constitution of the State of Alaska, The Public Trust
Doctrine, and other laws of the United States. The Defendants
have exceeded their obligatory authority in adopting and
enforcing the unconstitutional provisions of these statutes and
regulations. Continued irreparable harm caused by the enforcement
of these unconstitutional provisions is threatened absent
judicial - relief.
II. JURISDICTION AND VENUE
9. Under 28 USC § 1331, The
United States District Court has origina jurisdiction over all
civil actions arising under the Constitution, laws or treaties of
the United States. In this case specifically:
(a) Defendants are the United States or agents of the United
States acting on behalf of the United States;
(b) The named Defendants, the agencies whom they represent, and
their actions are taken by members of the Executive Department of
the United States. Defendants' past present and future actions
are claimed to be taken under authority of the Executive
Department ofthe United States;
(c) The Defendants' actions alleged herein constitute violations
of the laws of the United States or are in excess of the
authority granted by certain statutes and regulations. The
statutory provisions at issue include, but are not limited to:
(i) the Alaska National Interest Lands Conservation Act
("ANILCA"), 16 USC §§ 3101, et seq.; (ii) The Alaska
Native Claims Settlement Act ("ANCSA"), 43 USC §§
1601, et seq. (iii) The Federal Lands Policy and Management Act
("FLPMA"), 43 USC § 1701, (iv) and the Submerged Lands
Act, 43 USC, §§ 1301, et seq.
10. Venue is proper in this
District of the United States District Court as Plaintiffs Dale
Bondurant, Warren Olson, Daniel W. Devereux, and James P.
Jacobson reside within the State of Alaska. Shannon Ferrah
resides within the State of Arizona, Tom Minter resides within
the State of Florida, and Gary Younkin resides within the State
of Virginia.
m. PLAINTIFFS
11. Dale Bondurant is an Alaskan
resident. He currently resides in Soldotna Alaska, and has been a
resident of Alaska for the past fifty years.
12. Dale Bondurant is President of
the ACLDCF, which is a non-profit corporation existing under the
laws of Alaska. It is currently in good standing under the laws
of Alaska, and it has filed the necessary reports and paid all
legal fees and taxes required of such corporations under Alaska
law, and is therefore qualified to commence and maintain this
action.
13. Warren Olson is an Alaskan
resident. He currently resides in Anchorage, Alaska, and has been
a resident of Alaska for the past forty years.
14. Warren Olson is the
Secretary/Treasurer of the ACLDCF, and receives the
correspondence and acts as the registered agent for the ACLDCF at
his address in Anchorage, Alaska.
15. The ACLDCF is a public
interest group. Its purpose is to guarantee the protection of
Alaska's natural resources and to preserve them for all the
people's common use without special privilege to any one group
within the State of Alaska and the nation as a whole.
16. Dale Bondurant and Warren
Olson hold hunting and fishing licenses from ~e State of Alaska
permitting them to hunt and fish on all lands and waters Alaska
open to hunting and fishing.
17. Plaintiff James P. Jacobson is
an Alaskan Resident. He currently resides in Kodiak, Alaska. Mr.
Jacobson is a licensed hunting guide in the State of Alaska. Mr.
Jacobson arranges guided hunts on lands open to hunting. Due to
Federal involvement Mr. Jacobson has had to cancel his prebooked
guided hunts as the state issued permits were unilaterally
restricted by the Federal Subsistence Board. Mr. Jacobson filed a
claim for damages pursuant to the FTCA, which was denied. (See,
Exhibit No. 1) Mr. Jacobson appealed this decision to the
Department of the Interior and that appeal was also denied. (See,
Exhibit No. 2)
18. Plaintiff Daniel W. Devereux
is an Alaskan resident. He currently resides in Anchorage,
Alaska. - . Devereux applied for and- was awarded a sheep hunting
permit hunt no. DS3854) by the State of Alaska for Game Unit 23
for the 1998 season. (See, Exhibit No. 3) Mr. Devereux's hunting
permit was rendered void by the Federal Subsistence Board on
August 4, 1998. (See, Exhibit No. 4) Mr. Devereux was denied
participation in the season which began August 10, 1998 and went
through September 20,1998 on federal lands.
19. Plaintiff Shannon Farrah
resides in Tucson, Arizona, and had applied for and received an
Alaska non-resident hunting license no. 8010260 in 1998. Ms.
Farrah applied for and was awarded a sheep hunting permit (no.
0007, hunt DS384) by the State of Alaska for Game Unit 23 for the
1998 season. (See, Exhibit No. 5) Ms. Farrah's hunting permit was
rendered void by the Federal Subsistence Board on August 4, 1998.
(See, Exhibit No. 6) Ms. Farrah was denied participation in the
season which began August 10, 1998 on federal lands end went
through September20, 1998. (See, Exhibit No. 7)
20. Plaintiff W. Tom Minter
resides in Oviedo, Florida, and had applied for and received an
Alaska non-resident hunting license no. 8010257 in 1998. Mr.
Minter applied for and was awarded a sheep hunting permit (no.
0004, hunt DS384) by the State of Alaska for Game Unit 23 for the
1998 season. (See, Exhibit No. 8) Mr. Minter hunting permit was
rendered void by the Federal Subsistence Board on August 4, 1998.
(See, Exhibit No. 9) Mr. Minter was denied participation in the
season which began August 10, 1998 on federal lands and went
through September 20, 1998. (See, Exhibit No. 10)
21. Plaintiff Gary Younkin resides in Hume, Virginia, and had
applied for and received an Alaska non-resident hunting license
no. 8010261 in 1998. Mr. Younkin applied for and was awarded a
sheep hunting permit (no. 0002, hunt DS384) by the State of
Alaskafor Game Unit 23 for the 1998 season. (See, Exhibit No. 11)
Mr. Younkin's -hunting permit was rendered void by the Federal
Subsistence Board on August 4, 1998. (See,
Exhibit No. 12) Mr. Younkin was denied participation in the
season which began
Augusl 10, 1998 on federal lands and went through September 20,
1998. (See, Exhibit No. 13)
22. Dale Bondurant, Warren Olson
and James P. Jacobson have all applied to the United States
Department of the Interior and other Federal authorities in
Alaska to hunt and fish on federal public lands and in State of
Alaska sovereign waters; in those areas restricted to
"subsistence" hunting and fishing by only '`rural"
residents. (See, Exhibit No. 14) James P. Jacobson, a resident
of"rural" Alaska, applied for a subsistence sheep
permit for GMU 23 in August, 1998.
23. The United States Department
of the Interior denied Dale Bondurant and Warren Olson permits to
hunt and fish on federal land and waters because they were
class)fied as "urban residents" of Alaska under ANILCA
and its regulations. (See, Exhibit No. 15) James P. Jacobson was
denied his sheep hunting pennit by David Spirtes, Superintendant
of the National Parks Service stating that although he was a
resident of "rural" Alaska he was not a resident of GMU
23.
24. Plaintiffs Bondurant and Olson
appealed the denial of their permits to Federal regulatory
offices in Alaska under the control of the Department of Interior
and the Department of Agriculture, but the denials were affirmed.
25. Plaintiffs Jacobson,
Devereaux, Farrah, Minter and Younlcin were not informed they had
an appeal process open to them though they sent letters
requesting explanation and relief from the Federal Subsistence
Board's summary action voiding their permits for Game Unit 23.
(See, Exhibit Nos. 4, 6, 9, 12, 17)
26. Federal regulations concerning
hunting and fishing on federal land in Alaska, effective October
1, 1999 (under regulations promulgated July 1, 1999), contain
prohibitions against hunting and fishing by "urban"
class)fied residents, which have and will deny Plaintiffs the
right to hunt and fish on federal lands and waters in Alaska in
the future.
27. Plaintiffs maintain that such
statutes and regulations restricting the right of urban residents
to hunt and fish on federal public land and State sovereign
waters in Alaska are unconstitutional as applied and are in
violation of their rights as citizens of the United States and as
residents of Alaska.
IV. DEFENDANTS
28. Defendants are: (1) the United States; (2) Bruce Babbitt, in
his offical capacity as Secretary of the Department of Interior,
who maintains the principal responsibility for the enactment and
application of the rules -and regulations referenced herein and
the administration of the provisions of many of the statutes
herein and the policies embodied therein; (3) Daniel Glickman, in
his official capacity as Secretary of the Department of
Agriculture, who maintains overall responsibility for the
enactment of the rules and regulations referenced herein insofar
as said rules and regulations involve national forest lands, and
the administration of the statues at issue herein on national
forest lands; (4) Tom Fry, in his official capacity as Director
of the Bureau of Land Management, the land management agency
responsible for administering federally owned lands in Alaska not
under the jurisdiction of any other agency or department of the
United States and directly responsible for the supervision of the
adoption and administration of the rules and regulations
referenced herein and other administrative actions at issue
herein; (5) Michael Dombeck in his official capacity as Chief of
the United States Forest I Service, the land management agency
responsible for administering national forest lands and directly
responsible for the supervision of the adoption and
administration of the rules and regulations and other
administrative actions at issue herein; (6) Thomas H. Boyd, in
his official capacity as representative of the Federal
Subsistence Board, Office of Subsistence Management, United
States Fish and Wildlife Service, who maintains responsibility
for on the-ground administration of the subsistence program in
Alaska; and (7) Ken Thompson, in his official capacity as
Regional Subsistence Program Leader, United States Forest
Service, Alaska Region, who maintains responsibility for
on-the-ground administration of the subsistence program in
Alaska.
-V. PLAINTIFFS' CLAIMS
A. COUNT ONE: VIOLATION OF THE EQUAL FOOTING DOCTRINE, THE
SUBMERGED LANDS ACT AND THE
STATEHOOD COMPACT.
29. Upon admission to the Union on
an equal footing with the other States, a new state succeeds to
the United States' title to lands underlying navigable inland
waters within its boundaries as an incident of its sovereignty.
30. Through the Alaska Statehood
Act, Public Law No. 85-508, 48 U.S.C. note prec. § 21, and the
compact thereto, Alaska was admitted into the Union "on an
equal footing" with all other 48 states in all respects.
31. The boundaries of the State of
Alaska encompassed the territory of Alaska, together with the
territorial waters appurtenant thereto. (Statehood Act, Section
2) This included title to navigable waters and the beds
underlying those navigable waters.
32. Congress and the Executive
Branch (President Dwight Eisenhower by proclamation) confirmed
both the equal footing doctrine rule of state ownership of lands
underlying navigable inland waters and quitclaimed to the States
the offshore submerged lands within state boundaries in the
Submerged Lands Act of 1953, 43 U.S.C. §§
1301
33. The Alaska Statehood Act
specifically provided that the Submerged Lands Act would be
applicable to the State of Alaska, including the "natural
resources" within such land and waters. (Section 6(m) of the
Alaska Statehood Act)
34. The Statehood Act, Section 6,
also permitted the State of Alaska to select 102,000,000 acres of
federal land, and turned over all administration and management
of fish and game within the borders ofthose chosen acres to the
State of Alaska upon adoption of an adequate management scheme.
That management scheme was certified by the Secretary ofthe
Interior on April 27, 1959.
35. Regarding the lands to which
the federal government retained title to within Alaska, the sole
power retained by the United States over such land is that which
is contained in the United States Constitution, Article IV,
Section 3 (the property clause). As a matter of constitutional
law, Congress has no authority to act outside the enumerated
powers and other provisions expressly stated in the Constitution.
B. COUNT TWO: VIOLATION OF THE TENTH AMENDMENT AND THE ENUMERATED
POWERS DOCTRINE
36. Plaintiffs reallege and
incorporate by reference each and every allegation set forth in
paragraphs 1 through 35 of this complaint.
37. The Public Trust Doctrine at
all times forms the outer boundaries of permissible government
action with respect to Public Trust fish, wildlife and water
resources.
38. It is appropnate for the
federal government under thee property clause of the
Constitution, Article IV, Section 3, to protect public lands and
waters of Alaska that were not otherwise surrendered to the State
of Alaska under the Statehood Compact. However, ANILCA's rural
preference provision is only indirectly and minimally related to
the purpose of protecting the federal public lands and state
waters. Under the Public Trust Doctrine, Alaska's fish and
wildlife and waters are held for the benefit of the public as a
whole. There is no substantial support in the property clause of
the United States Constitution for the users federal regulation
of resource under ANILCA.
We find no disagreement with the right of federal management
authority to determine among the beneficial uses for which these
public lands have been designated. It is when those beneficial
uses are determined to include hunting and fishing; then State
sovereignty has management power to regulate those user
participants in the harvest of fish and wildlife resources.
39. Under the Tenth Amendment to the United States Constitution,
the powers not specifically delegated to the Congress are
reserved to the States respectively, or to the people.
40. The right to manage fishing and hunting is a traditional
police power of the states. The States' responsibility to
administer its water's and lands for the public benefit is an
unabrogatable attribute of statehood itself. The State must
administer its interest in lands and waters subject to the Public
Trust Doctrine consistent with trust purposes. As Congress has no
authority under either the commerce clause or the property
clauses of the United States Constitution to implement ANILCA's
provision granting a rural subsistence priority. That
implementation of ANILCA violates the Tenth Amendment and is
unconstitutional as applied.
C. COUNT THREE: VIOLATION OF THE FOURTEENTH
AMENDMENT
41. Plaintiffs reallege and incorporate by reference each and
every allegation set forth in paragraphs 1 through 40 ofthis
Complaint.
42. The United States must implement its "plenary"
power over the subject matter of legislation or regulation, such
as over federally owned lands and waters in a manner that does
not conflict with the provisions of the United States
Constitution and the power of the States.
43. Discrimination based solely on place of residency is
arbitrary and capricious and is not rationally related to a
legitimate federal interest. It neither substantially advances a
legitimate federal interest nor is it narrowly tailored-to a
compelling governmental interest. Even to the extent that ANILCA
may be interpreted to avoid this problem, the manner in which it
has been implemented, particularly in the manner in which the
term "rural" has been defined in existing regulations,
violates the Fourteenth Amendment component both on its face and
as applied.
44. Defendants have implemented this class)fication and granted
these privileges to "rural" class)fied residents of
Alaska and have denied these privileges and immunities protection
to non-rural or '`urban" class)fied residents of Alaska,
including Plaintiffs and all other United States citizens.
D. COUNT FOUR: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
45. Plaintiffs reallege and incorporate by reference each and
every allegation set forth in paragraphs 1 through 44 of this
complaint.
46. The Administrative Procedure Act (hereinafter
"APA"), 5 USC §§ 551, et seq., mandates the granting
of relief if the actions of an agency are in excess of
jurisdiction, contrary to law, fail to follow the procedure
required by law, or are arbitrary or capricious. The actions of
Defendants violate each of these principles.
47. Defendants' actions appear to assume that they have a
reserved water and land right and the extent of such a right, but
Defendants cannot validly rest on such an assumption without
adopting regulations based on such a right consistent with the
APA.
48. Defendants have not established the existence of such a
reserved right nor the limitation of its boundaries. Any attempt
to make rules which (a) are intended to incorporate
"reserved water rights" in Alaska waters, and/or (b)
include or are intended to include lands selected under the
Statehood Act or other laws to which title has not passed, is
improper on its face. It would set precedents that have not been
claimed or enforced in any other State and would require
constitutional changes that would be incompatible with equality
of purpose.
49. Defendants' fish and management activities on lands and
waters to which the United States does not hold title, or which
have been selected by the State of Alaska or third parties under
applicable statutes, are in excess of the authority delegated to
Defendants by Congress? and are in violation of the United States
Constitution.
50. Plaintiffs Bondurant and Olson have repeatedly appealed to
the administrative process available to them, only to be told
that a court action was the appropriate forum for their
grievances. Plaintiffs Jacobson, Devereaux, Farrah, Minter and
Younkin were not even informed there was an administrative
process until the time to appeal had passed. (See, Exhibit Nos.
4, 6, 9, 12, 16)
51. The Defendants' actions exceed the authonty given to them by
the Constitution of the United States and violate the Public
Trust Doctrine, which is fundamental to constitutional democracy.
52. The actions of the agency Defendants in interpreting and
applying Title VIII of ANILCA, to the extent that ANILCA is
determined to be valid and constitutional, are arbitrary and
capricious, in excess of their jurisdiction, and contrary to
Congressional intent, and are otherwise not in accordance with
equal protection of Constitutional
WHEREFORE, Plaintiffs pray for the following injunctive relief as
against
Defendants:
1. For declaratory judgment determining that the prescribed
exclusionary class of "rural" residency requirement
giving preferences as users as mandated under ANILCA is
unconstitutional;
2. For declaratory judgment holding that the actions of the
Defendants in adopting, implementing, and applying regulations
that manage fish, wildlife and waters other than in a limited
fashion violate the constitutional and statutory provisions
referenced above;
3. For a preliminary and permanent injunction prohibiting the
Defendants from adopting and implementing regulations imposing a
subsistence management scheme in violation of the Constitution of
the State of Alaska, the rights of its residents thereunder, and
4. For judgment decreeing that Plaintiffs Olsen, Bondurant and
Jacobson may reapply for fishing and hunting permits on federal
lands and waters in Alaska without being unfairly discriminated
against based on the location of their residency;
5. For such relief Plaintiff Jacobson may be awarded, and
6. For such other and further relief as the court may deem just
and equitable.
DATED is 6th Day of June, 2000, at Anchorage, Alaska.
ERWIN & ERWIN, LLC
Attorney for The Alaska Constitutional
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