ALASKA FEDERATION OF NATIVES, ET AL., PETITIONERS V. ALASKA FISH
AND WILDLIFE FEDERATION AND OUTDOOR COUNCIL, INC., ET AL.
   No. 87-1157
   In the Supreme Court of the United States
   October Term, 1987
   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
   Brief for the Federal Respondent in Opposition
            TABLE OF CONTENTS
   Question Presented
   Opinions Below
   Jurisdiction
   Statement
   Argument
   Conclusion
                            OPINIONS BELOW
   The opinion of the court of appeals (Pet. App. 1-32) is reported at
829 F.2d 933.  The memorandum opinion of the district court (Pet. App.
33-58) is unreported.
                             JURISDICTION
   The judgment of the court of appeals was entered on October 9,
1987.  The petition for a writ of certiorari was filed on January 7,
1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
                          QUESTION PRESENTED
   Whether the Alaska Game Law of 1925, ch. 75, 43 Stat. 739, repeals
the provisions of the Migratory Bird Treaty Act (16 U.S.C. 703 et.
seq.) and related statutes that limit the closed season taking of
migratory game birds.
                               STATEMENT
   1. In August 1916, the United States and Great Britain, acting on
behalf of Canada, signed a convention in which they agreed to protect
migratory birds from "indiscriminate slaughter" and to insure their
preservation.  See Convention for the Protection of Migratory Birds,
Aug. 16, 1916, United States-Great Britain, 39 Stat. 1702, T.S. No.
628.  This convention, known as the "Canadian Treaty," defined three
categories of migratory birds needing protection:  (a) migratory game
birds, including all waterfowl (such as brant, wild ducks, and geese);
 (b) migratory insectivorous birds;  and (c) other migratory nongame
birds, including auks, auklets, guillemots, murres, and puffins.  See
id. art. I(1)(a), I(2), I(3), 39 Stat. 1702-1703.  It established a
closed season on the hunting of migratory game birds "during which no
hunting shall be done except for scientific or propagating purposes
under permits issued by proper authorities," although it further
provided that "Indians may take at any time scoters for food but not
for sale" (id. art. II(1), 39 Stat. 1703).  It also imposed a closed
season on the hunting of migratory nongame birds, permitting only
Eskimos and Indians to "take at any season auks, auklets, guillemots,
murres and puffins, and their eggs, for food and their skins for
clothing" (id. art. II(3), 39 Stat. 1703).  Finally, it prohibitied
the taking of nests or eggs of migratory game birds, migratory
insectivorous birds, and migratory nongame birds, except for
scientific or propagating purposes (id. art. V, 39 Stat. 1704).
   In 1918, Congress gave effect to the Canadian Treaty by enacting
the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq.  Section 2
of the MBTA makes it unlawful "at any time, by any means or in any
manner, to pursue, hunt, take, capture (or) kill * * * any migratory
bird (or) any part, nest, or eggs or any such bird," unless such
action is authorized by regulations issued pursuant to Section 3 of
the statute (16 U.S.C. 703).  Section 3 of the statute in turn
authorizes and directs the Secretary of Agriculture to determine
"when, to what extent, if at all, and by what means, it is compatible
with the terms of the convention to allow hunting, taking, * * * or
export of any (migratory) bird * * *" (16 U.S.C. 704).  /1/
   Following the MBTA's enactment, the Secretary of Agriculture
adopted regulations specifying "when, to what extent, * * * and by
what means" migratory birds could be hunted.  Proclamation of July 31,
1918, 40 Stat. 1812.  /2/ These regulations create a limited waterfowl
hunting season for the State of Alaska and establish bag limits on the
number of waterfowl a person can take in one day.  /3/ They make an
exception, however, for the taking of certian migratory nongame (but
not game) birds by Native Alaskans.  /4/ The regulations have been
periodically revised over the years, but the revisions have not
disturbed the closed season established for the hunting of migratory
game birds in Alaska.  See, e.g., Proclamation of May 17, 1921, 42
Stat. 2240;  Proclamation of Mar. 8, 1922, 42 Stat. 2265;
Proclamation of June 11, 1923, 43 Stat. 1915-1916;  Proclamation of
July 2, 1924, 43 Stat. 1961-1962;  Proclamation of June 22, 1925, 44
Stat. 2579-2580.
   2. In Janury 1925, Congress enacted the Alaska Game Law (AGL) ch.
75, 43 Stat. 739, 48 U.S.C. (1958 ed.) 192 et seq. (repealed).
Section 8 of this law made it unlawful for any person "to take,
possess, transport, sell, offer to sell, purchase, or offer to
purchase any game animal, land fur-bearing animal, wild bird, or any
parts thereof, or any nest or egg of any such bird," except as
permitted by the statute itself or by regulations issued pursuant
thereto (43 Stat. 743).  Section 10 of the law authorized the
Secretary of Agriculture to adopt regulations determining "when, to
what extent, if at all, and by what means" game animals land
fur-bearing animals, game birds, nongame birds, and nests or eggs of
such birds could be taken, possessed, transported, bought, or sold (43
Stat. 743).  Section 10 further provided, however, that no regulation
could "prohibit any Indian or Eskimo, prospector, or traveler to take
animals or birds during the close(d) season when he is in absolute
need of food and other food is not available," unless the Secretary
determined "that the supply of such species of animals or birds is in
danger of extermination," /5/ and that no regulation could "contravene
any of the provisions of the (M)igratory (B)ird (T)reaty Act and
regulations" (43 Stat. 744).  Section 16 of the statute stated "(t)hat
the provisions of existing laws relating to the protection of * * *
birds, and nests and eggs of birds in (Alaska) shall remain in full
force and effect until the expiration of ninety days from the date of
the publication of regulations of the Secretary of Agriculture adopted
pursuant to the provisions of this Act" (43 Stat. 747).
   The first regulations adopted to implement the AGL stated that
"(t)he Alaska game law (act of January 13, 1925) and the regulations
thereunder supersede all previous Federal laws and regulations for the
protection of game animals, land fur-bearing animals, and birds in the
Territory, except the (M)igratory (B)ird (T)reaty (A)ct of July 3,
1918 (40 Stat. 755), * * * and the regulations thereunder" (Alaska
Game Law and Regulations and Federal Laws Relating to Game and Birds
In The Territory (May 1925) (Fed. Deft. Exh. E)).  These regulations
further provided that "(a)n Indian, Eskimo, or half-breed who has not
severed his tribal relations by adopting a civilized mode of living,
or by exercising the right of franchise, and an explorer, prospector,
or traveler may take animals or birds in any part of the Territory at
any time for food when in absolute need of food and other food is not
available, but he shall not ship or sell any animal, or bird, or part
thereof, so taken" (id. at Reg. 8).  Nineteen years later, this
exception was amended to exclude migratory birds.  See 9 Fed. Reg.
5270, 5271 (1944).  As amended, the regulations remained in effect
until 1960, when all regulations implementing the AGL were deleted
from the Code of Federal Regulations as having been "superseded by
operation of the Alaska Statehood Act (Act of July 1958;  72 Stat.
339), as amended" (25 Fed. Reg. 7681 (1960)).
   3. The Fish and Wildlife Service (FWS) is charged with the
responsibility for administering and enforcing the MBTA (Pet. App. 7).
 In this regard, the FWS has long taken the position that the MBTA
prohibits the harvesting of migratory birds between March 10 and
September 1 of each year (ibid.).  The FWS has also recognized,
however, that subsistence hunters in Alaska have great needs for fresh
meat in the spring and summer months and that political and geographic
considerations render traditional law enforcement methods ineffective
in the vast reaches of rural Alaska (ibid.).  Accordingly, in recent
years, it has not expended its limited resources on efforts to ensure
compliance with the MBTA in Alaska (ibid.).
   The FWS has, however, taken steps to reduce the take of declining
migratory bird species (Pet. App. 8).  Thus, in January 1984, the FWS
entered into an agreement -- called the Hooper Bay Agreement -- with
the Alaska Department of Fish and Game (ADF&G), the California
Department of Fish and Game (CDF&G), and the Association of Village
Council Presidents of Alaskan Natives to limit the hunting of four
species of migratory game birds -- the cackling Canada geese, brant,
white-fronts, and emperor geese -- during the 1984 season (ibid.).
While not prohibiting all takings of such species, the agreement
placed a moratorium on all harvesting of cackling Canada geese;
prohibited all egg gathering for cackling Canada geese, brant, and
white-fronts;  imposed a fifty-percent reduction on the open season
sport-hunting harvest of brant and white-fronts;  and barred closed
season subsistence hunting of these two species during nesting,
rearing, and molting periods (ibid.; see also Excerpt of Record (ER)
Tab 24).  FWS renewed and refined these agreements in 1985 and in each
succeeding season (Pet. App. 8).
   Before the 1984 nesting season began, however, two non-profit
Alaskan corporations, the Alaska Fish and Wildlife Conservation Fund,
Inc. (the Fund), and the Alaska Fish and Wildlife Federation and
Outdoor Council, Inc. (the Council), filed suit in district court
against the Director of the FWS and the Commissioner of the ADF&G
(Pet. App. 8-9).  They sought to have the district court enjoin the
FWS from acquiescing in the taking of any migratory birds by Native
Alaskans, for subsistence purposes or otherwise, and to declare that
the FWS must comply with the Administrative Procedure Act (APA), 5
U.S.C. 701 et seq., and the National Environmental Policy Act (NEPA),
42 U.S.C. 4321 et seq., before entering into any agreements in which
takings of migratory birds are allowed (Pet. App. 8-9).  Shortly
thereafter, the Alaska Federation of Natives, the Association of
Village Council Presidents, and Alaska State Representative Tony Vaska
intervened and cross-claimed against the FWS;  they sought to have the
district court declare that the AGL (rather than the MBTA) governs
subsistence hunting of migratory game birds in Alaska and that, until
the Secretary of the Interior adopts regulations pursuant to the Fish
and Wildlife Improvement Act of 1978 (FWIA), Pub. L. No. 95-616, 92
Stat. 3110, which supplements the statutory protections for migratory
birds, Alaskan Natives may engage in subsistence harvesting of
migratory birds (Pet. App. 9).
   The district court granted summary judgment to the intervenors and
dismissed the plaintiffs' claims against the FWS and the state
defendants (Pet. App. 33-65).  With respect to the intervenors'
claims, the court ruled that the AGL superseded the MBTA as applied to
the State of Alaska, that the AGL incorporated all of the MBTA's terms
except in subsistence situations, and, accordingly, that subsistence
hunting by Alaska Natives is permitted (id. at 9-10, 37-53);  it
reasoned that the two exceptions to the Secretary's regulatory
authority in Section 10 of the AGL -- one proscribing restrictions on
emergency subsistence hunting, the other proscribing regulations that
conflict with the MBTA -- "cannot be reconciled" (Pet. App. 40-41),
and that the inconsistency is best resolved by treating Section 16
ofthe AGL, which provided that existing laws relating to the
protection of migratory birds in Alaska would remain in force for 90
days following the publication of regulations pursuant to the AGL, as
an express and implied repeal of the MBTA insofar as it applies to the
State of Alaska (Pet. App. 45-47).  With respect to the challenges of
the plaintiff-Fund and plaintiff-Council to the subsistence hunting
agreements that the FWS and the state defendants had negotiated with
the Alaskan Natives, the court ruled that, because the AGL repealed
the MBTA as applied to the State of Alaska, those agreements were
simply voluntary concessions on the part of the Alaskan Natives and
that the FWS has no authority to enforce them (id. at 53-54);
accordingly, it held that the plaintiffs' claims, including their APA
and NEPA claims, were moot (id. at 53-57).
   4. On appeal by the Fund, the Ninth Circuit reversed and remanded
(Pet. App. 1-32).  After rejecting several procedural arguments made
by the FWS (id. at 6), the court concluded that "the MBTA governs the
hunting of migratory birds" and that "the MBTA currently does not
permit closed season subsistence hunting of migratory game birds by
Alaskan Natives" (ibid).  It thus remanded the case so that the
district court could determine in the first instance whether the
Hooper Bay Agreement and its successor agreements violate the statutes
protecting migratory birds (ibid).
   On the substantive question, the court began by noting that, as
supplemented by the FWIA, the statutes protecting migratory birds
expressly "allow() the Secretary of the Interior to adopt regulations
permitting subsistence hunting by Alaskan Natives if the regulations
are in accordance with the provisions" of the treaties that the United
States has entered into with Canada, the Soviet Union, Japan, and
Mexico (Pet. App. 19).  It then determined that "(t)he United
States-Canada Convention is the most restrictive of the four
treaties() and  that  all of the Secretary's regulations must be in
accord with that treaty" (id. at 22).  Finally, it concluded that,
under the Canadian Treaty and the statutes protecting migratory birds,
"the Secretary may adopt regulations that permit subsistence hunting
for up to three and one-half months between September 1 and March 10
of each year" (ibid.).
   Having thus resolved that closed season hunting by Alaskan Natives
is not permissible under the statutory scheme protecting migratory
birds, the court turned to the district court's conclusion "that
closed season subsistence hunting by Alaskan Natives is not regulated
by the MBTA, but instead by the 1925 Alaska Game Law" (Pet. App. 22).
Initially, it agreed with the district court that "(t)he 1925 AGL was
ambiguous as to its relationship with the MBTA" (id. at 23), noting
that Section 10 "explicitly prohibited the Secretary from adopting
regulations contravening the MBTA" (ibid. (footnote omitted)), but
that "Section 16 of the 1925 AGL * * * could be read as an implicit
repeal ofthe MBTA as it applied to Alaska" (ibid.).  It disagreed,
however, with the district court's premise that the two exceptions to
the Secretary's regulatory authority under Section 10 of the AGL could
not be reconciled with each other (Pet. App. 26), finding that "(t)he
subsistence hunting provision fairly can be read to permit subsistence
hunting of all animals and all birds which are not migratory" (ibid.);
 that "(e)mergency subsistence hunting of migratory birds would then
be permissible insofar as it is permitted by the MBTA" (ibid.);  and
that, while "(t)he legislative history of the 1925 AGL does not
clarify the relationship between these two clauses," "Congress
intended to promote * * * policies (relating to) * * * flexibility in
meeting local needs and conservation of the natural resources of the
area" and that "(t)hese policies support an interpretation of the
emergency hunting provision that recognizes the emergency subsistence
needs of Alaskan Natives but which also restricts the subsistence
hunting of migratory birds" (ibid.).  With the district court's
premise out of the way, the court of appeals then determined that the
ambiguous relationship between the statutory scheme protecting
migratory birds and the AGL should be resolved in favor of the
protections for migratory birds, noting that, "(b)ecause the statute
specifically stated that the provisions of the MBTA were not to be
contravened, the plain language of the statute suggests that section
16 did not repeal the MBTA insofar as it applied to Alaska" (id. at
27).  It found support for this conclusion in the FWS's "longstanding
interpretation * * * that Congress did not intend to permit
subsistence hunting of migratory game birds or to have the 1925 AGL
supersede the MBTA" (ibid.).
                               ARGUMENT
   The decision below is correct.  It does not conflict with any
decision of this Court or of any other court of appeals.  Accordingly,
review by this Court is not warranted.
   1. Petitioners initially err in suggesting (Pet. 16-18) that the
decision below involves a question of substantial national importance
because it affects Alaskan Natives in more than 200 villages and
hundreds of migratory waterfowl populations.  We agree, of course,
that issues relating to Native subsistence hunting and the plight of
migratory waterfowl are of concern to the entire country.  But the
decision below specifically left intact and recognized as unreviewable
the FWS's discretion whether and in what circumstances to prosecute
those who may be violating the statutory prohibitions against
subsistence hunting of migratory game birds;  the decision below
addressed only the authority of the FWS to enter into cooperative
agreements the terms of which allegedly violate those statutes.  See
Pet. App. 13-14.  Thus, the decision below will have little, if any,
effect on the Alaskan Natives in these 200 villages or on the
waterfowl to which petitioners refer, and nothing in the decision
below affects the FWS's ability to accommodate the needs of Alaskan
Natives or the preservationist policies respecting migratory birds.
   2. Petitioners also err in suggesting (Pet. 18-20) that the
decision below conflicts with this Court's decision in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The decision in Chevron explained that, "when a court reviews an
agency's construction of the statute which it administers, " the court
"must give effect to the unambiguously expressed intent of Congress"
(467 U.S. at 842-843 (footnote omitted));  but where "the statute is
silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency's answer is based on a permissible
construction of the statute" (id. at 843 (footnote omitted)).  The
court below faithfully followed these principles.  It determined (Pet.
App. 23) that the AGL's relationship to the MBTA is ambiguous:  The
text and legislative history of the AGL are ambiguous with respect to
whether Congress intended in that statute to preclude the Secretary
from promulgating regulations that would prohibit Native Alaskans in
need of food from taking any migratory game birds;  likewise, the text
and legislative history are ambiguous with respect to whether Congress
intended Section 16 of the AGL to constitute an implied repeal of the
MBTA insofar as it applies to the State of Alaska.  Faced with these
ambiguities in congressional intent, the court below looked to the
FWS's interpretation of the statute and found that interpretation to
be quite reasonable.  While petitioners obviously disagree with the
court of appeals' (and with the FWS's) resolution of these questions,
there is no basis for suggesting that the court below failed to follow
the analysis required by the Chevron decision.
   3. Petitioners also err in suggesting (Pet. 21-23) that the court
below issued an advisory opinion with respect to whether the FWIA
requires the Secretary to ensure that his regulations comply with the
provisions of all four of the treaties that the United States has
signed concerning the protection of migratory birds.  The appellant in
this case was the Fund;  it argued in the district court that the
statutes protecting migratory birds bar closed season hunting of
migratory game birds by Alaskan Natives.  While the district court
declined to reach this question (because it found that the AGL
repealed these statutory provisions to the extent that they applied to
Alaska), the case was resolved on cross motions for summary judgment.
Appellants thus reasserted on apeal their claim that the statutes
protecting migratory birds bar such subsistence hunting.  See
Pltf.-Appellants' Br. vii.  The FWIA, of course, supplements those
statutes, and the court of appeals could not decide the question
presented without resolving whether the FWIA authorizes closed season
hunting of migratory game birds by Alaskan Natives.  The answer to
that question, however, turns on whether the Secretary's regulations
must comply with the Canadian treaty, which prohibits spring and
summer hunting, or just with the Soviet-American treaty, which allows
subsistence hunting during the spring and summer months.  /6/
Petitioners' claim that the court of appeals could have decided the
question presented without resolving this latter issue is therefore
without merit -- and is not in any event a claim that would suggest
that the court of appeals' judgment warrants this Court's review.
                              CONCLUSION
   The petition for a writ of certiorari should be denied.
   Respectfully submitted.
   CHARLES FRIED
      Solicitor General
   ROGER J. MARZULLA
      Acting Assistant Attorney General
   EDWARD J. SHAWAKER
   J. CAROL WILLIAMS
      Attorneys
   MARCH 1988
   /1/ In addition to the Canadian convention, the MBTA and related
statutes implement hunting conventions with Mexico, Japan, and the
Soviet Union.  See 16 U.S.C. 703 et. seq.; 16 U.S.C. 712, 715j.  The
four treaties differ considerably with respect to the issue in this
case -- i.e., with respect to subsistence hunting by Native Alaskans.
   /2/ Section 3 of the MBTA provided that implementing regulations
would become effective when approved by the President.  See 16 U.S.C.
704.  Thus, from 1918 until 1950, MBTA regulations were issued by
Presidential proclamation.  In 1951, however, the President empowered
the Secretary of the Interior to promulgate regulations without prior
approval, ratification, or other action of the President.  See Exec.
Order No. 10,250, 3 C.F.R. 755 (1949-1953 Comp.).
   /3/ Regulation 4 (40 Stat. 1814) provides, in pertinent part:
         The open seasons for waterfowls (except wood ducks, eider
      ducks, and swans) coot, gallinules, and Wilson snipe or
      jacksnipe shall be as follows:
                     * * * * *
   In Alaska the open season shall be from September 1 to December 15.
   /4/ Regulation 7 (40 Stat. 1816) provides:
         In Alaska Eskimos and Indians may take for the use of
      themselves and their immediate families, in any manner and at
      any time, and possess and transport auks, auklets, guillemots,
      murres, and puffins and their eggs for food, and their skins for
      clothing.
   /5/ This provision was amended by the Act of October 10, 1940, ch.
845 54 Stat. 1103-1104, to permit Alaskan Natives to take birds and
animals out-of-season "when * * * in need of food and other sufficient
food is not available."
   /6/ Contrary to petitioners' suggestion (Pet. 21), this issue was
briefed by the parties on appeal.  See Fed. Deft. Br. 12;  State Br.
9, 19-20;  Intervenor Br. 17-19, 45;  Fund Reply Br. 13-15.