The Alaska Supreme Court weighing citizens’ right to challenge state’s predator control program

Do nonhunting Alaskans who enjoy viewing wildlife have legal standing to challenge a state program that kills scores of bears and wolves for the purpose of boosting caribou numbers?

That is the question now before the Alaska Supreme Court. In a hearing in Anchorage, Michelle Bittner, an Anchorage attorney who opposes the state’s predator control program in Western Alaska, asked the justices to reverse a lower court decision that dismissed her complaint against the state Board of Game and Department of Fish and Game.

A state Superior Court judge found in October that Bittner did not have sufficient interest in the region’s wildlife to qualify for what is known in legal terms as standing. The term refers to the authority to challenge an action or law in court.

Bittner told the justices that, as a citizen of Alaska, a state where all residents are entitled through the constitution to benefit from commonly held natural resources, she does have standing to challenge the state program that is culling bears and wolves to aid the faltering Mulchatna caribou herd.

In 2022, the program’s first year, the state killed 94 brown bears, five black bears and five wolves. The program has continued, and the total is now up to more than 180 and 40 wolves, a toll that affects her as an Alaskan who values wildlife, Bittner told the justices.

“My interests are that wildlife is part of my identity and experiences as an Alaska. I want to live in a place where wildlife is flourishing. I am exhilarated by viewing wildlife in their natural habitat. And I cherish wildlife, including predators,” she said. She described how she has visited Western Alaska and viewed and fished among the salmon-eating bears in Katmai National Park and Preserve.

She also has a legitimate interest as a citizen in ensuring that the state follows its own regulations, laws and constitution in making wildlife decisions, she said.

Bittner’s case before the Supreme Court is just a small portion of the legal fight against the Mulchatna predator control program, which the state intends to continue through 2028.

Another lawsuit filed a year ago against the state by the Alaska Wildlife Alliance alleges that the program is illegal, ignores scientific information indicating that predators are not the cause of the caribou herd’s problems and was adopted hurriedly without proper public notice. That lawsuit is pending in state Superior Court, and it is before the same judge who dismissed Bittner’s complaint, Andrew Guidi.

The Alaska Department of Fish and Game has defended the Mulchatna predator control program.

Still, Senior Assistant Alaska Attorney General Cheryl Brooking told the Supreme Court justices on Wednesday, the legal merits of the program were not up for their immediate consideration.

Instead, Brooking said, what is to be determined is whether Bittner’s case was properly dismissed. The state’s position is that Bittner’s connection to bears and wolves that may have been killed is too vague to qualify her for standing, Brooking said. Bittner has not shown evidence that she was harmed by the predator-control policy, she said.

“This court has said that standing is required, or a case must be dismissed. And if there’s no harm that has been alleged, no direct and personal harm, then that requires dismissal,” she said.

Bittner’s position is weakened because she has not revealed any specific plans to return in the future to the area where bear populations may have been affected by predator control, Brooking said. It is also weakened by her failure to testify or comment to the Board of Game at its 2022 meeting when it authorized the Mulchatna predator control program, she said.

Both Bittner and the Alaska Wildlife Alliance allege that the Board of Game failed to give sufficient public notice about the rule it adopted.

Originally published by the Alaska Beacon, an independent, nonpartisan news organization that covers Alaska state government.