UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AK LEGIS CNCL

v.

BABBITT, BRUCE


98-5405a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: The Alaska Legislative Council is  a
"permanent interim committee and service agency of the  legislature."
See Alaska Stat. s 24.20.010 (Michie 1996). It  is "composed of the
president of the senate and six other  senators appointed by the
president, and the speaker of the  house of representatives and six
other representatives ap- pointed by the speaker." See id. s
24.20.020. In January  1998, the Council and seventeen individual
members of the  Alaska State Legislature, in their capacities as
legislators and  as individuals, brought a complaint in the district
court ob- jecting to the Alaska National Interest Lands Conservation 
Act and the actions of the federal government thereunder.


The complaint, which sought declaratory and injunctive  relief, focused
on the federal management of subsistence  taking of fish and wildlife
on federal public lands in Alaska  pursuant to the Lands Conservation
Act. Of the individual  plaintiffs, two claimed they ate fish and game
from Alaska,  two alleged they engaged in fishing, two alleged they
engaged  in hunting, eleven said they hunted and fished in the State; 
all claimed that the defendants' actions would adversely affect  their
hunting or fishing or their consumption of fish and  game. The Lands
Conservation Act, according to the com- plaint, infringes on State
prerogatives in violation of the  Commerce Clause, the Enumerated
Powers Doctrine and  principles of federalism embodied in the Tenth
and Eleventh  Amendments to the United States Constitution; the Act's 
rural subsistence use priority violates the equal protection 
component of the due process clause of the Fifth Amendment  to the
United States Constitution, because it discriminates  between users of
land on the basis of residency; and the  federal government's
implementation of the Act violates the 


Administrative Procedure Act. See Alaska Legislative Coun- cil v.
Babbitt, 15 F. Supp. 2d 19, 21 (D.D.C. 1998).


Several years before the Council filed its action here, the  State of
Alaska brought a complaint raising similar allega- tions. See Katie
John v. United States, 1994 WL 487830 at  *5 (D. Alaska Mar. 30,
1994). On its own motion, the district  court in Alaska concluded that
the State's complaint was  without merit and dismissed it. See id. at
*9. The State filed  a notice of appeal, but later stipulated to a
dismissal with  prejudice. See State of Alaska v. Babbitt, 72 F.3d
698, 700  n.2 (9th Cir. 1995). The Ninth Circuit denied the motion of 
the Alaska State Legislature to intervene or to substitute  itself as
the appellant. See id.


In view of these earlier proceedings, the district court  dismissed
this complaint on the ground of res judicata, and  also on the grounds
that the statute of limitations had run on  certain claims and that
others were not ripe. See Alaska  Legislative Council, 15 F. Supp. 2d
at 22-23, 24, 26. We  affirm, but not entirely for the reasons given
by the district  court.


I


A


The initial question, which we decide against the plaintiffs,  is
whether the district court had jurisdiction to adjudicate the 
constitutional and statutory claims of the Council and of the 
individual legislators, in their official capacity, regarding the 
Act's creation of a hunting and fishing "priority" for rural 
subsistence users on federal public lands in Alaska, and the  federal
defendants' implementation of the Act. To under- stand why we believe
the court could not hear this aspect of  the case--why, that is, the
plaintiffs lacked standing--it is  necessary first to offer a brief
description of the Alaska  National Interest Lands Conservation Act.


Enacted in 1980, the Lands Conservation Act had as one of  its stated
purposes to maintain "sound populations of, and  habitat for, wildlife
species of inestimable value to the citizens 


of Alaska and the Nation," and to "provide the opportunity  for rural
residents engaged in a subsistence way of life to  continue to do so."
See Alaska National Interest Lands  Conservation Act, Pub. L. No.
96-487, 94 Stat. 2374 (1980), 16  U.S.C. s 3101(b), (c). To this end,
the Act established a  priority for "the taking on public lands of
fish and wildlife for  nonwasteful subsistence uses ... over the
taking on such  lands of fish and wildlife for other purposes." See 16
U.S.C.  s 3114(a). The Act defined "subsistence uses" as the "cus-
tomary and traditional uses ... of wild, renewable resources  for
direct personal or family consumption," by "rural Alaska 
residents"--those persons who reside in communities or areas  that are
"substantially dependent on fish and wildlife for  nutritional and
other subsistence uses." See 16 U.S.C.  s 3113. If it became necessary
to limit subsistence taking of  fish and game, the Act provided that
the priority would be  implemented through limitations "based on the
application of  the following criteria: (1) customary and direct
dependence  upon the populations as the mainstay of livelihood; (2)
local  residency; and (3) the availability of alternative resources." 


The Act applied to federal public lands in Alaska, that is, to  lands
"the title to which is in the United States." See 16  U.S.C. s
3102(2), (3). Public lands, as defined in the Act, do  not include
"land selections of the State of Alaska which have  been tentatively
approved or validly selected under the Alas- ka Statehood Act1 and
lands which have been confirmed to, 




__________

n 1 The Alaska Statehood Act declared Alaska admitted into the  Union
on an equal footing with the other States. See Alaska  Statehood Law,
Pub. L. No. 85-508 s 1, 72 Stat. 339 (1958) (codified  at note
preceding s 21 of Title 48, Territories and Insular Posses- sions). It
provided that the United States would retain title to all  property in
Alaska to which it had title, including public lands, and  that Alaska
would retain title to all property, title to which was in  the
Territory of Alaska or any of the subdivisions. See id. s 5, 72  Stat.
340. The Statehood Act also permitted Alaska to select  acreage from
certain national forests and other federal public lands  within
thirty-five years after its admission to the Union. See id. 


validly selected by, or granted to the Territory of Alaska or  the
State under any other provision of Federal law." See 16  U.S.C. s
3102(3)(A).


The Act authorized the State of Alaska to "assume manage- ment for the
taking of fish and wildlife on the public lands for  subsistence uses
pursuant to this title," on condition that the  State enacted and
implemented laws of general applicability  consistent with the Act's
subsistence use priority, definitions  and local and regional
participation requirements. See 16  U.S.C. s 3115(d)(1). As of 1978,
the State of Alaska had  adopted a statute giving "subsistence uses
... priority over  sport and commercial uses." See Madison v. Alaska
Dep't of  Fish & Game, 696 P.2d 168, 170-71 (Alaska 1985). Subsis-
tence uses were defined as "customary and traditional uses  ... for
direct personal or family consumption." See id. at  170. Limiting
criteria contained in regulations promulgated  by the Alaska Board of
Fisheries determined subsistence  users by their area of residence.
See id. at 172 n.8, 174. On  May 14, 1982, after the Secretaries of
the Interior and  Agriculture reviewed and approved the State's
regulatory  scheme, Alaska became responsible for all regulation of
sub- sistence uses of its wild renewable resources.


In February 1985, the Supreme Court of Alaska invalidated  the Board's
limiting criteria as inconsistent with state law.  See Madison, 696
P.2d at 178. The Interior Secretary then  withdrew certification of
the State's regulatory scheme.  When the State later amended its
legislation to limit subsis- tence use to use by residents of rural
areas, the Alaska  Supreme Court declared the amended statute in
violation of  the State Constitution. See McDowell v. State of Alaska,
785  P.2d 1, 9 (Alaska 1989). The court stayed the effect of its 
decision until July 1, 1990. At that time, the State had no  laws in
effect consistent with the Lands Conservation Act's  rural subsistence
use priority. The Department of the Interi- or and the Department of
Agriculture jointly published tem- porary fish and wildlife management
regulations, applicable 




__________

n s 6(a), (b), 72 Stat. 340, as amended by Pub. L. No. 96-487,  s
906(a)(1), (2), 94 Stat. 2371, 2437.


to public lands as defined by the Act, implementing the rural 
subsistence priority.2 See Temporary Subsistence Manage- ment
Regulations for Public Lands in Alaska, 55 Fed. Reg.  27,114, 27,118
(1990). The final regulations, promulgated in  May 1992, made no
significant changes to the scope of federal  authority. See
Subsistence Management Regulations for  Public Lands in Alaska,
Subparts A, B, and C, 57 Fed. Reg.  22,940 (1992).


B


As to the claims of the Council and the individuals in their  official
capacity as state legislators, we are guided by Raines  v. Byrd, 521
U.S. 811 (1997), a decision rejecting the standing  of members of
Congress in federal court, and the Supreme  Court's interpretation in
Raines of Coleman v. Miller, 307  U.S. 433 (1939), a case dealing with
the standing of state  legislators. Raines involved claims brought by
federal legis- lators against executive branch officials, and applied
a partic- ularly rigorous standing analysis in light of the
separation-of- powers concerns raised in that case. See Raines, 521
U.S. at  819-20, see also Chenoweth v.Clinton, No. 98-5095, slip op.
at  7 (D.C. Cir. July 2, 1999). But the Court did not limit its 
analysis to interbranch disputes, and we read its discussion of 
Coleman to apply to suits brought by state as well as federal 
legislators. The bottom line is that the claimed injuries of  the
individual Alaskan legislators and the Council are not  legally or
judicially cognizable. The injuries are not "person- al" or
particularized to them; and they have not established a  "personal
stake" in the alleged dispute, as Article III of the  Constitution


According to the complaint, the Alaska State Constitution  confers upon
the individual legislators "an affirmative duty to  legislate for the
management of all of the State's resources  including ... fish and
wildlife." The complaint goes on: 




__________

n 2 The Regulations noted that "[n]avigable waters generally are  not
included within the definition of public lands." See Temporary 
Subsistence Management Regulations for Public Lands in Alaska,  55
Fed. Reg. 27,114, 27,118 (1990).


Alaska legislators "are obligated by ... oath to act in the best 
interests of the citizens of the State as a whole, to abide by  the
limitations of the Constitution of the State of Alaska with  respect
to the common use of fish and wildlife resources and  to make a
conscientious application of their authority to  protect and preserve
the public trust for all citizens of the  State of Alaska." The
legislators also state that they are  similarly required to support
the Constitution of the United  States. See U.S. Const. art. VI. But
they and the Council  say that because the federal statute and its
implementation  are illegal, the federal government has interfered
with their  state duties, and has nullified their legislative
prerogatives  regarding fish and wildlife management.


The reading Raines gave to Coleman establishes that  injuries of the
sort alleged here do not deprive individual  legislators of something
to which they are personally entitled.  In narrow circumstances,
legislators have a judicially recog- nized, personal interest in
maintaining the "effectiveness of  their votes." See Raines, 521 U.S.
at 821-22 (citing Coleman  v. Miller, 307 U.S. at 438 (1939)).3 But
there is not the  slightest suggestion here that these particular
legislators had  the votes to enact a particular measure, that they
cast those  votes or that the federal statute or the federal
defendants did  something to nullify their votes. See id. at 823. What
we see  instead is, at most, a claim that the Lands Conservation Act, 
either because of the Supremacy Clause or the rulings of the  Alaska
Supreme Court, had the effect of rendering the Alaska  Legislature
unable to control hunting and fishing on federal  lands within the
State. See 16 U.S.C. s 3115(d). If for these 




__________

n 3 The individual legislators do not allege injury to other interests 
that could provide a basis for legislative standing. For example, an 
elected representative excluded from the legislature and denied his 
salary alleges a personal injury because he has been "singled out  for
specially unfavorable treatment as opposed to other Members  of" that
body. See Raines, 521 U.S. at 821 (citing Powell v.  McCormack, 395
U.S. 486, 496 (1969)). Similarly, a representative  whose vote was
denied "its full validity in relation to the votes of  [his]
colleagues," might also allege a personal injury sufficient to  confer
standing. See id. at 824 n.7.


reasons the individual legislators cannot enact valid laws  because the
laws would conflict with federal law, or cannot  enact legislation
implementing the Act because this would be  at odds with their State
Constitution, their loss (or injury) is a  loss of political power, a
power they hold not in their personal  or private capacities, but as
members of the Alaska State  Legislature. See Raines, 521 U.S. at 821.
Furthermore, the  complaint nowhere mentions any specific act or
regulation of  the Alaska Legislature that the Lands Conservation Act
has  overruled, nullified or otherwise adversely affected. In fact, 
federal regulations promulgated pursuant to the Act provide  that
"[s]tate fish and game regulations [applicable] to public  lands and
such laws are hereby adopted and made a part of  these regulations to
the extent they are not inconsistent with,  or superseded by this
Part." See 57 Fed. Reg. at 22,955.  While state legislation or
regulations in conflict with the  federal statute or federal
regulations may be unenforceable-- for example, the Federal
Subsistence Board can close public  lands to hunting and fishing even
if the State permits it, see  id.--that type of injury does not
entitle individual legislators  to seek a judicial remedy. Their
supposed injury is nothing  more than an "abstract dilution of
institutional legislative  power" to regulate and manage fish and
wildlife resources,  and we are not sure it amounts to even this much.


The Alaska Legislative Council stands on no better consti- tutional
footing despite its authorization under State law to  "sue in the name
of the legislature during the interim be- tween sessions" if a
majority vote of the Council approves.  See Alaska Stat. s
24.20.060(4)(F) (Michie 1996). Even if a  state legislature and its
authorized representative have stand- ing to defend the
constitutionality of a state statute attacked  in federal court, the
position of the Alaska Legislature in this  case is not comparable.
See, e.g., Karcher v. May, 484 U.S.  72, 84 (1987) (White, J.,
concurring). The Council complains  about federal limitations on State
prerogatives in the manage- ment of fish and wildlife. This is the
same complaint the  individual legislators make in their official
capacity. The  resulting injury is not to the Legislature and it is


individual legislators. It is to the State itself. The authority  to
manage fish and wildlife belongs to the State as a whole.4  If the
Lands Conservation Act diminishes the State's authori- ty, it injures
state sovereignty, not legislative sovereignty.5  The Legislature is
not authorized to sue on behalf of the  State, see Alaska Stat. s
24.20.060(4)(F)--the Governor holds  that power, see Alaska Const.
art. III, s 16--and the Legisla- ture suffers no separate,
identifiable, judicially cognizable  injury that entitles it to sue on


C


The legislators, in their individual capacities, seek to mount  an
equal protection challenge to the Act. They view the Act's  rural
subsistence use preference as discrimination against  Alaska's urban
residents, and brand the preference irrational  because the
rural/non-rural distinction ignores need, income  level, dependence on
subsistence resources, community char- acter, and ethnic and racial
membership. They also claim  that federal designations of certain
communities as "rural,"  pursuant to the statute, are arbitrary and


For the purpose of establishing standing, it is not enough  merely to
claim discrimination. The plaintiffs must be able to  trace the
discrimination to some "distinct and palpable" inju- ry to them. See
Allen v. Wright, 468 U.S. 737, 751 (1984);  United States v. Hays, 515
U.S. 737, 743-44 (1995). At the  pleading stage, general factual
allegations may suffice to  establish injury and are presumed to
"embrace those specific 




__________

n 4For example, the Alaska Statehood Act gave the State of Alaska  the
authority to administer and manage fish and wildlife resources,  after
the Alaska State Legislature made adequate provision for  their
administration, management and conservation. See Pub. L.  No. 85-508,
s 6(e), 72 Stat. 339, 340-41 (1958). The entire statute  speaks in
terms of property and authority given to the State of  Alaska, not to
the Alaska State Legislature.


5Indeed, the State, represented by the Attorney General, brought  a
lawsuit challenging federal authority to regulate subsistence  taking
of fish and game under the Act. See Katie John, 1994 WL  487830.


facts that are necessary to support the claim." See Lujan v.  National
Wildlife Fed'n, 497 U.S. 871, 889 (1990). The  individuals' claims
here fail to meet even this low threshold.  See, e.g., Gottlieb v.
FEC, 143 F.3d 618, 622 (D.C. Cir. 1998).  Each of them is, according
to the complaint, a non-rural  resident of Alaska; some hunt and fish
in the State of Alaska,  others only fish, others only hunt, and two
apparently engage  in neither activity but eat fish and game. They say
federal  law limits their activities, yet the facts alleged do not
indicate  that the law even reaches or in any way affects their
activi- ties, critical elements in establishing their standing to sue.
 The subsistence preference in the statute and the regulations  affect
public lands, see 16 U.S.C. s 3114; 57 Fed. Reg. at  22,951, but none
of these plaintiffs claim to hunt or fish on  those lands. See Sierra
Club v. Morton, 405 U.S. 727, 734-35  (1972); United States v.
Students Challenging Regulatory  Agency Procedures (SCRAP), 412 U.S.
669, 683-85 (1973).  As to fishing, they do not state where they fish
or what  species they seek or how federal law limits their fishing. As
 to game, the complaint mentions federal restrictions on hunt- ing
moose in the Tongass National Forest, caribou in a sector  in east
central Alaska, and musk ox in a region in western  Alaska. But no
plaintiff claims to hunt these animals in these  places. Plaintiffs do
allege that they "desire[ ] and intend[ ]  to, in the future, hunt and
fish within the State of Alaska."  But the mere desire to hunt or fish
in the future, supposedly  limited in some unspecified way, falls
short of demonstrating  the type of actual or imminent injury
sufficient under Article  III to constitute an injury in fact. Compare
Lujan v. Defend- ers of Wildlife, 504 U.S. 555, 563-65 (1992). That
the federal  Act and its implementing regulations could reduce the
oppor- tunities for hunters and fishermen from non-rural areas in 
Alaska is, on the face of the complaint, perhaps conceivable.  But
that is not enough. Pleadings must be more than "an  ingenious
academic exercise in the conceivable." See SCRAP,  412 U.S. at 688.


In addition to limiting the hunting of moose, caribou and  musk ox, the
complaint also alleges that federal regulations  have expanded the
taking of lynx, black bear, ruffed grouse 


and Dall sheep on certain public lands beyond previous State  bag
limits. No individual plaintiff claims an interest in these 
particular animals for hunting or any other recreational pur- pose. To
the extent the complaint states any injury to  plaintiffs, it is not
on the basis that the named legislators are  being harmed in their
individual capacity. The harm alleged  is put in terms of the effect
on the State Legislature, which-- so the complaint states--cannot
protect lynx, ruffed grouse,  black bear and Dall sheep or cannot
remove federal restric- tions on hunting moose, caribou and musk ox.
Because the  complaint reveals no perceptible harm to the legislators
in  their individual capacity, they lack standing to bring their 


D


The complaint also alleges that federal officials exceeded  their
authority under the Act by extending regulations be- yond federal
lands and thus violated the Administrative Pro- cedure Act. Section
702 of the APA provides that: "[a]  person ... adversely affected or
aggrieved by agency action  within the meaning of a relevant statute,
is entitled to judicial  review thereof." 5 U.S.C. s 702. Are any
plaintiffs "ad- versely affected" within the meaning of the Lands
Conserva- tion Act? See National Wildlife Fed'n, 497 U.S. at 882-83. 
To be so situated they must satisfy all constitutional standing 
requirements and must demonstrate that their injury is "to  interests
of the sort protected" by the statute. See Florida  Audubon Soc'y v.
Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996)  (en banc); see also Animal
Legal Defense Fund, Inc. v.  Glickman, 154 F.3d 426, 431 (D.C. Cir.
1998) (en banc). The  Act, as plaintiffs' complaint states, does not
authorize federal  officials to extend the subsistence preference to
lands validly  selected by the State or other named parties. See 16
U.S.C.  s 3102(3). But apart from two conclusory sentences, the 
complaint does not mention any federal activity on non-public  lands
and it utterly fails to identify any "agency action"  affecting
hunting and fishing on such lands, let alone hunting  and fishing by
these particular plaintiffs. The regulations  currently in effect
apply only to the "taking of fish and  wildlife on public lands in the
State of Alaska." See 57 Fed.  Reg. at 22,951. The definition of


excludes "land selections of the State of Alaska which have  been
tentatively approved or validly selected under the Alas- ka Statehood
Act and lands which have been confirmed to,  validly selected by, or
granted to the Territory of Alaska or  the State under any other
provision of Federal law." See id.  at 22,952.


In nevertheless asserting that the federal defendants are  regulating
beyond federal lands, plaintiffs apparently believe  that "public
lands," as defined in the Act, cannot be read to  include waters in
which the United States has a reserved  water right,6 and that if the
ownership of such a right  includes the power to manage fish and game,
the federal  defendants cannot rest on a mere assertion that they have
 such a right. They must first "establish" its existence and  then
adopt regulations based upon it. The federal defendants  urge us to
dispose of this claim on ripeness grounds. Subsis- tence management
regulations identify federal land units in  which reserved water
rights exist and subject those units to  the Act's federal subsistence
priority.7 See Subsistence Man- agement Regulations for Public Lands
in Alaska, Subparts A,  B, C, and D, Redefinition to Include Waters
Subject to  Subsistence Priority, 64 Fed. Reg. 1276 (1999). But these 
regulations, though final, will not take effect until October 1, 
1999. If the Secretary of the Interior certifies that the  Alaska
State Legislature has amended its Constitution so that  it may pass
laws consistent with the Act before that time, the  regulations will
not take effect until December 1, 2000. See  id. Plaintiffs seek a
declaratory judgment and an injunction  against the regulations; we do




__________

n 6 In State of Alaska, 72 F.3d at 703-04, the Ninth Circuit held  that
the United States has reserved water rights in some navigable  waters
in Alaska and by virtue of those rights, interests in some  navigable
waters. The Court concluded that such waters are  included within the
definition of "public lands." It directed the  federal agencies that
administer the subsistence priority to identify  those waters.


7 When plaintiffs filed their first amended complaint, these regu-
lations were not yet final.


remedies to administrative determinations "until an adminis- trative
decision has been formalized and its effects felt in a  concrete way
by the challenging parties." See Abbott Lab. v.  Gardner, 387 U.S.
136, 148-49 (1967). Although we therefore  have severe doubts whether
the APA claim is ripe, there is no  need to decide the question. Our
earlier discussion of the  individual plaintiffs' lack of standing
applies as well to their  contentions regarding the APA. These
plaintiffs have alleged  no injury--not even of the insufficient
hypothetical or specu- lative variety--that may be ascribed to federal
regulations  applying the subsistence preference to waters in Alaska
in  which the United States asserts reserved water rights. They  do
not say they ever fished those waters, nor do they say they  ever
will. See, e.g., Defenders of Wildlife, 504 U.S. at 564.  They mention
only a general "desire[ ] and inten[t] to ...  fish," but when it
comes to where they want to fish, what  species of fish they want to
catch and how the regulations  would limit their fishing, the
complaint is silent. Plaintiffs  have therefore failed to demonstrate
the type of actual injury  Article III requires.


Plaintiffs also ask us to read their APA claim to encompass  a number
of other supposedly excessive agency actions men- tioned in their
complaint.8 These include: "the designation of  management units, the
issuance and denial of permits, the  setting of hunting seasons, bag
limits, and methods of take."  As we have already mentioned, the
complaint states that the  Federal Subsistence Board prohibits or
restricts non-rural  Alaskans from hunting moose, caribou and musk ox
in certain  areas, and allows the taking of lynx, ruffed grouse, black
bear  and Dall sheep in others. For reasons previously given, 
plaintiffs have failed to allege that their interests are "ad- versely
affected" by these actions, as the APA requires. See  5 U.S.C. s 702,
see also National Wildlife Fed'n, 497 U.S. at  889. It is not enough
for them to claim that they are  "deprived of their ability to hunt
and fish." Hunt and fish  what, and where? What is meant by "ability"?




__________

n 8 The district court did not do so. See Alaska Legislative Coun- cil,
15 F. Supp. 2d at 25.


ty they may wish to hunt these particular animals in these  particular
areas at some time in the future? Such claims do  not allege "actual
or imminent injury" and are insufficient to  confer standing. See,
e.g., Defenders of Wildlife, 504 U.S. at  566-67. Nothing in the
complaint gives the slightest indica- tion that any one of the
plaintiffs ever hunted or ate musk ox  or Dall sheep or any of the
other named animals in the  regulated regions, or for that matter,
anywhere else. See  Sierra Club, 405 U.S. at 734-35. The additional
allegation in  the complaint that plaintiffs' "ability to enjoy the
full abun- dance of wildlife will be diminished if a remedy is not 


The decision of the district court is affirmed.