16 U.S.C. § 3117 — Judicial enforcement

Page 2238 TITLE 16—CONSERVATION § 3116 subsistence uses of fish and wildlife set forth in section 3114 of this title. (Pub. L. 96–487, title VIII, § 805, Dec. 2, 1980, 94 Stat. 2424; Pub. L. 105–83, title III, § 316(b)(6), (d), Nov. 14, 1997, 111 Stat. 1593, 1595; Pub. L. 105–277, div. A, § 101(e) [title III, § 339(c)], Oct. 21, 1998, 112 Stat. 2681–231, 2681–296.) Editorial Notes AMENDMENTS 1998—Subsec. (a). Pub. L. 105–277, § 101(e) [title III, § 339(c)(1)], struck out ‘‘one year after December 2, 1980,’’ before ‘‘the Secretary’’ in introductory provi- sions. Subsec. (d). Pub. L. 105–277, § 101(e) [title III, § 339(c)(2)], struck out ‘‘within one year from December 2, 1980,’’ before ‘‘the State enacts’’ in first sentence. 1997—Subsec. (a). Pub. L. 105–83, § 316(b)(6)(A), which directed the amendment of subsec. (a) by striking out ‘‘one year after December 2, 1980,’’ before ‘‘the Sec- retary’’ in introductory provisions, was repealed by Pub. L. 105–83, § 316(d). See Effective and Termination Dates of 1997 Amendment note below. Subsec. (d). Pub. L. 105–83, § 316(b)(6)(B), which di- rected the amendment of subsec. (d) generally to pro- vide for supersedure by enactment and implementation of State laws governing State responsibility, consider- ation of recommendations by State rulemaking author- ity, and for the creation of regional advisory councils, was repealed by Pub. L. 105–83, § 316(d). See Effective and Termination Dates of 1997 Amendment note below. Statutory Notes and Related Subsidiaries EFFECTIVE AND TERMINATION DATES OF 1997 AMENDMENT Until laws are adopted in Alaska which provide for definition, preference, and participation specified in sections 3113 to 3115 of this title, amendment by Pub. L. 105–83 was effective only for purpose of determining whether State’s laws provide for such definition, pref- erence, and participation, and such amendment was re- pealed on Dec. 1, 1998, because such laws had not been adopted, see section 316(d) of Pub. L. 105–83 set out as a note under section 3102 of this title. TERMINATION OF ADVISORY COUNCILS Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the Presi- dent or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by the Congress, its duration is oth- erwise provided for by law. See sections 1001(2) and 1013 of Title 5, Government Organization and Employees. § 3116. Federal monitoring; reports to State and Congressional committees The Secretary shall monitor the provisions by the State of the subsistence preference set forth in section 3114 of this title and shall advise the State and the Committees on Natural Resources and on Merchant Marine and Fisheries of the House of Representatives and the Committees on Energy and Natural Resources and Environ- ment and Public Works of the Senate annually and at such other times as he deems necessary of his views on the effectiveness of the imple- mentation of this subchapter including the State’s provision of such preference, any exer- cise of his closure or other administrative au- thority to protect subsistence resources or uses, the views of the State, and any recommenda- tions he may have. (Pub. L. 96–487, title VIII, § 806, Dec. 2, 1980, 94 Stat. 2425; Pub. L. 103–437, § 6(y), Nov. 2, 1994, 108 Stat. 4587.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–437 substituted ‘‘the Committees on Natural Resources’’ for ‘‘Committee on Interior and In- sular Affairs’’. Statutory Notes and Related Subsidiaries ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treat- ed as referring to Committee on Resources of House of Representatives in case of provisions relating to fish- eries, wildlife, international fishing agreements, ma- rine affairs (including coastal zone management) ex- cept for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21 of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. § 3117. Judicial enforcement (a) Exhaustion of administrative remedies; civil action; parties; preliminary injunctive relief; other relief; costs and attorney’s fees Local residents and other persons and organi- zations aggrieved by a failure of the State or the Federal Government to provide for the priority for subsistence uses set forth in section 3114 of this title (or with respect to the State as set forth in a State law of general applicability if the State has fulfilled the requirements of sec- tion 3115(d) of this title) may, upon exhaustion of any State or Federal (as appropriate) admin- istrative remedies which may be available, file a civil action in the United States District Court for the District of Alaska to require such ac- tions to be taken as are necessary to provide for the priority. In a civil action filed against the State, the Secretary may be joined as a party to such action. The court may grant preliminary injunctive relief in any civil action if the grant- ing of such relief is appropriate under the facts upon which the action is based. No order grant- ing preliminary relief shall be issued until after an opportunity for hearing. In a civil action filed against the State, the court shall provide relief, other than preliminary relief, by direct- ing the State to submit regulations which sat- isfy the requirements of section 3114 of this title; when approved by the court, such regula- tions shall be incorporated as part of the final judicial order, and such order shall be valid only for such period of time as normally provided by State law for the regulations at issue. Local residents and other persons and organizations who are prevailing parties in an action filed pur- suant to this section shall be awarded their costs and attorney’s fees. Page 2239 TITLE 16—CONSERVATION § 3118 (b) Repealed. Pub. L. 98–620, title IV, § 402(22)(A), Nov. 8, 1984, 98 Stat. 3358 (c) Section as sole Federal judicial remedy This section is the sole Federal judicial rem- edy created by this subchapter for local resi- dents and other residents who, and organiza- tions which, are aggrieved by a failure of the State to provide for the priority of subsistence uses set forth in section 3114 of this title. (Pub. L. 96–487, title VII, § 807, Dec. 2, 1980, 94 Stat. 2426; Pub. L. 98–620, title IV, § 402(22)(A), Nov. 8, 1984, 98 Stat. 3358; Pub. L. 105–83, title III, § 316(b)(7), (d), Nov. 14, 1997, 111 Stat. 1594, 1595.) Editorial Notes AMENDMENTS 1997—Subsec. (b). Pub. L. 105–83, § 316(b)(7), which di- rected amendment of section by adding subsec. (b) reading as follows: ‘‘State agency actions may be de- clared invalid by the court only if they are arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law. When reviewing any action within the specialized knowledge of a State agency, the court shall give the decision of the State agency the same deference it would give the same decision of a comparable Federal agency.’’, was repealed by Pub. L. 105–83, § 316(d). See Effective and Termination Dates of 1997 Amendments note below. 1984—Subsec. (b). Pub. L. 98–620 struck out subsec. (b) which had provided that a civil action filed pursuant to this section was to be assigned for hearing at the ear- liest possible date, was to take precedence over other matters pending on the docket of the United States dis- trict court at that time, and was to be expedited in every way by such court and any appellate court. Statutory Notes and Related Subsidiaries EFFECTIVE AND TERMINATION DATES OF 1997 AMENDMENT Until laws are adopted in Alaska which provide for definition, preference, and participation specified in sections 3113 to 3115 of this title, amendment by Pub. L. 105–83 was effective only for purpose of determining whether State’s laws provide for such definition, pref- erence, and participation, and such amendment was re- pealed on Dec. 1, 1998, because such laws had not been adopted, see section 316(d) of Pub. L. 105–83 set out as a note under section 3102 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. § 3118. Park and park monument subsistence re- source commissions (a) Appointment of members; development of subsistence hunting program; annual review of program Within one year from December 2, 1980, the Secretary and the Governor shall each appoint three members to a subsistence resources com- mission for each national park or park monu- ment within which subsistence uses are per- mitted by this Act. The regional advisory coun- cil established pursuant to section 3115 of this title which has jurisdiction within the area in which the park or park monument is located shall appoint three members to the commission each of whom is a member of either the regional advisory council or a local advisory committee within the region and also engages in subsist- ence uses within the park or park monument. Within eighteen months from December 2, 1980, each commission shall devise and recommend to the Secretary and the Governor a program for subsistence hunting within the park or park monument. Such program shall be prepared using technical information and other pertinent data assembled or produced by necessary field studies or investigations conducted jointly or separately by the technical and administrative personnel of the State and the Department of the Interior, information submitted by, and after consultation with the appropriate local ad- visory committees and regional advisory coun- cils, and any testimony received in a public hearing or hearings held by the commission prior to preparation of the plan at a convenient location or locations in the vicinity of the park or park monument. Each year thereafter, the commission, after consultation with the appro- priate local committees and regional councils, considering all relevant data and holding one or more additional hearings in the vicinity of the park or park monument, shall make rec- ommendations to the Secretary and the Gov- ernor for any changes in the program or its im- plementation which the commission deems nec- essary. (b) Implementation of subsistence hunting pro- gram The Secretary shall promptly implement the program and recommendations submitted to him by each commission unless he finds in writ- ing that such program or recommendations vio- lates recognized principles of wildlife conserva- tion, threatens the conservation of healthy pop- ulations of wildlife in the park or park monu- ment, is contrary to the purposes for which the park or park monument is established, or would be detrimental to the satisfaction of subsistence needs of local residents. Upon notification by the Governor, the Secretary shall take no action on a submission of a commission for sixty days during which period he shall consider any pro- posed changes in the program or recommenda- tions submitted by the commission which the Governor provides him. (c) Subsistence uses prior to implementation of subsistence hunting program Pending the implementation of a program under subsection (a) of this section, the Sec- retary shall permit subsistence uses by local residents in accordance with the provisions of this subchapter and other applicable Federal and State law. (Pub. L. 96–487, title VIII, § 808, Dec. 2, 1980, 94 Stat. 2426.) Editorial Notes REFERENCES IN TEXT This Act, referred to in subsec. (a), is Pub. L. 96–487, Dec. 2, 1980, 94 Stat. 2371, known as the Alaska National Interest Lands Conservation Act. For complete classi- fication of this Act to the Code, see Short Title note set out under section 3101 of this title and Tables.