Anchorage Daily News

In the latest case to refine where federal subsistence hunting can take place in Alaska, an appeals court has upheld a federal decision granting a subsistence priority for moose in the Tok region to residents of the village of Chistochina.

But in the process, the appeals court shot down an argument raised by federal lawyers that would have considerably expanded use of the subsistence priority under federal law in Alaska.

Federal lawyers had argued that if residents of a rural village could show a historical use of a specific game population, such as moose, residents of that community would have a federal priority to hunt moose anywhere in the state, not just in the place where their traditional hunting took place.

That's far too broad an interpretation of the law, said appeals court judge A. Wallace Tashima.

"We look at it as a major victory for the state," said assistant attorney general Steven Daugherty. "It shows the (federal subsistence) board does not have unbounded discretion."

Still, the state lost on the point it set out to make. The state had argued that the board did not follow its own rules in extending Chistochina's hunting territory "without documentation of a long-established, consistent pattern of use."

The state sued in 2006 over a decision by the subsistence board granting a moose hunting priority to Chistochina for all of the state's Game Management Unit 12, a 10,000-square-mile area north of the Wrangell Mountains along the border with Canada. The state argued the board had gone too far in granting a hunting priority for the whole region, based on a finding that village residents had traditionally hunted moose in part of the area.

The Ninth U.S. Circuit Court of Appeals on Tuesday upheld an earlier ruling by U.S. District Judge Russel Holland backing the federal decision.

Chistochina is a community of 93 residents associated with a traditional Ahtna Indian fishing camp. It is located along the Tok Cut-off Highway, just west of game unit 12.

The appeals court said that an effort to draw lines on the map around specific traditional hunting grounds for each community would result in an "unmanageable" patchwork of hunting zones.

The court said it would not second-guess the federal board's decision that Chistochina had shown historical use in Game Management Unit 12.

Daugherty said no decision had been made yet on whether to appeal further.

Subsistence hunting priorities for rural residents on federal land are managed by the board, composed of top federal agency officials in Alaska. The board, established under the 1980 Alaska National Interest Lands Conservation Act, acts on recommendations from regional councils made up of local residents.

Because subsistence is the priority under federal law, sport hunting opportunities managed by the state on the same land are sometimes cut back to keep game populations from being overhunted.

The 1980 act said Alaska could take over all hunting by passing its own subsistence priority for rural residents. But the state Supreme Court has said a constitutional amendment would be necessary to grant a preference for residents based on where they live.

Find Tom Kizzia online at adn.com/contact/tkizzia or call him at 907-235-4244.

RULING: The Ninth Circuit decision:

www.ca9.uscourts.gov/ca9/newopinions.nsf/ECBA5BB9F1CB88EF882574CD000F0B78/$file/0735723.pdf?openelement

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