Akiachak Native Cmty. v. Jewell

• Citation: 995 F.Supp.2d 7
• Decision Date: 26 June 2014
• Docket Number: Civil Action No.: 06–0969 (RC)
• Court: United States District Courts. United States District Court (Columbia)
• Parties: Akiachak Native Community, et al., Plaintiffs, v. Sally Jewell, Secretary of the Interior, et al., Defendants. and State of Alaska, Defendant–Intervenor

995 F.Supp.2d 7

Akiachak Native Community, et al., Plaintiffs,

v. Sally Jewell, Secretary of the Interior, et al., Defendants.andState of Alaska, Defendant–Intervenor

Civil Action No.: 06–0969 (RC)

United States District Court, District of Columbia.

Signed June 26, 2014

Hollis L. Handler, Alaska Legal Services Corporation, Juneaau, AK, Richard A. Guest, Native American Rights Fund, Washington, DC, Heather Kendall Miller, Native American Rights Fund, Anchorage, AK, Andrew R. Harrington, Alaska Legal Services Corporation, Fairbanks, AK, for Plaintiffs.

Maureen Elizabeth Rudolph, Daniel G. Steele, U.S. Department of Justice, Washington, DC, for Defendants.

Elizabeth Jeanne Barry, J. Anne Nelson, State of Alaska Department of Law, Anchorage, AK, for Defendant–Intervenor.

Re Document No.: 139

MEMORANDUM OPINION & ORDER

RUDOLPH CONTRERAS, United States District Judge

Granting in Part and Denying in Part Alaska's Motion to Stay Pending Appeal

I. INTRODUCTION

This case involved a challenge by certain Alaskan Native Tribes (“Tribes”) to a regulation promulgated by the Secretary of the Interior (“Secretary”) regarding taking land into trust on behalf of all Indian Tribes, 25 C.F.R. § 151.1, pursuant to section 5 of the Indian Reorganization Act, 25 U.S.C. § 465. SeeAkiachak Native Cmty. v. Salazar, 935 F.Supp.2d 195, 197 (D.D.C.2013). Now pending before the Court is the State of Alaska's (hereinafter referred to as “Alaska”) Motion for a Stay and Injunction pending appeal of the Court's September 30, 2013 Order in the D.C. Circuit. See ECF No. 139. For the reasons that follow, the Court will grant in part and deny in part Alaska's Motion.

II. PROCEDURAL BACKGROUND

This case involved a challenge to a regulation promulgated by the Secretary, governing the procedures for the United States to take land into trust for individual Indians and tribes, 25 C.F.R. § 151.1. This Court concluded on March 31, 2013, that the Alaska exception within the rule was arbitrary and capricious and violated the Indian Reorganization Act (“IRA”), 25 U.S.C. § 476(g). See Mem. Op. 23–25, ECF No. 109. Though the Court granted the plaintiffs' motion for summary judgment, it ordered the parties to submit supplemental briefs discussing whether the Alaska exception contained in 25 C.F.R. § 151.1 could be severed from the remainder of the land into trust regulatory scheme. See Order 2, ECF No. 115. After considering those supplemental briefs, the Court concluded that the last sentence could be severed from the remainder of the regulation, and that vacatur of that final sentence—the Alaska exception—was warranted. See Mem. Op. 8–9, ECF No. 130. The Court accordingly entered an order that severed and vacated the final sentence of 25 C.F.R. § 151.1 from the regulation—which provided that “[t]hese regulations do not cover the acquisition of land in trust status in the State of Alaska, except acquisitions for the Metlakatla Community of the Annette Island Reserve or it[s] members.” See Order 1, ECF No. 131. As such, the current status quo is that there is no Alaska exception to the land into trust regulations, 25 C.F.R. § 151.1. The case is currently on appeal in the D.C. Circuit. See Notice of Appeal, ECF No. 132.¹

Meanwhile, on April 30, 2014, the Bureau of Indian Affairs (“BIA”) published a Proposed Rule, proposing to formally remove the Alaska exception from 25 C.F.R. § 151.1, and begin considering the acquisition of lands into trust on behalf of Alaska Native Tribes and individuals. See Proposed Rule, Land Acquisitions in the State of Alaska, 79 Fed.Reg. 24,648, 24,649 (May 1, 2014). On May 9, 2014, Alaska filed a motion for a Stay and Injunction pending appeal in this case. See ECF No. 139. Alaska specifically asks this Court to stay its September 30, 2013 Order and to “enjoin the Secretary's rulemaking activities, including accepting comments on the recently proposed rule, and enjoin the Secretary from accepting and processing applications to take land into trust for Alaska tribes, pending resolution of the appeal.” See Alaska's Mot. Stay 3, ECF No. 139. Because the Court concludes that the Proposed Rule and the process of accepting applications for taking land into trust does not constitute irreparable harm, it will deny Alaska's motion to enjoin the Secretary from engaging in those activities. However, because the Court concludes that irreparable harm to Alaska will result if the Secretary is permitted to actually take land into trust for Alaskan tribes, it will grant Alaska's motion on that ground, and enjoin the Secretary from taking land into trust pending disposition of the appeal in the D.C. Circuit.²

III. ANALYSIS

1. Factors to consider on a Motion to Stay

Alaska asks this Court to “stay its decision and enjoin the Secretary's rulemaking activities, including accepting and processing applications to take land into trust for Alaska tribes, pending resolution of the appeal.” See Alaska's Mot. Stay 6. Under Federal Rule of Civil Procedure 62(c), “[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights.” SeeFed. R. Civ. P. 62(c). In the D.C. Circuit, a court assesses four factors when considering a motion to stay and injunction pending appeal: (1) the moving party's likelihood of success on the merits of its appeal, (2) whether the moving party will suffer irreparable injury, (3) whether issuance of the stay would substantially harm other parties in the proceeding, and (4) the public interest. SeeWash. Met. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977); accord Mylan Labs. Inc. v. Leavitt, 495 F.Supp.2d 43, 46 (D.D.C.2007); Shays v. FEC, 340 F.Supp.2d 39, 44 (D.D.C.2004). “[I]t is the movant's obligation to justify the court's exercise of such an extraordinary remedy [as a stay].” Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 978 (D.C.Cir.1985).

Before the Supreme Court decided Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), the four factors for a stay and injunctive relief were analyzed on a sliding scale. See, e.g.,Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir.2011) (“Before Winter, this court and others had allowed that a strong showing on one factor could make up for a weaker showing on another.”); Cuomo, 772 F.2d at 974 (”[A] movant need not always establish a high probability of success on the merits. Probability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa.”). Since Winter, however, it is unclear whether the likelihood of success on the merits factor is a threshold inquiry that must be addressed before the other factors. As the D.C. Circuit recently explained, “[i]n this circuit, it remains an open question whether the ‘likelihood of success' factor is an ‘independent, free-standing requirement,’ or whether, in cases where the three other factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question’ on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C.Cir.2014) (quoting Sherley, 644 F.3d at 393, 398); accordKingman Park Civic Ass'n v. Gray, 956 F.Supp.2d 230, 241 (D.D.C.2013) (“Recently, the continued viability of [the sliding scale] approach has been called into some doubt, as the United States Court of Appeals for the District of Columbia Circuit has suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement for a preliminary injunction.”); Guttenberg v. Emery, No. 13–2046, ––– F.Supp.2d ––––, ––––, 2014 WL 1100982, at *8 (D.D.C. Mar. 19, 2014) (“The D.C. Circuit has noted this issue, but it has not yet decided whether the sliding-scale analysis made it through the Winter.”). Given the uncertainty, courts in this jurisdiction have continued to analyze motions for preliminary injunctions under the sliding scale approach, because “[i]f a plaintiff cannot meet the less demanding sliding scale standard, then it cannot satisfy the more stringent standard alluded to by the Court of Appeals.” SeeKingman Park Civic Ass'n, 956 F.Supp.2d at 241;

Guttenberg, ––– F.Supp.2d at ––––, 2014 WL 1100982, at *9 (“Whether or not Winter spelled the end of the sliding-scale analysis, one thing is clear: plaintiffs here must at least demonstrate that irreparable injury is likely in the absence of an injunction.”) (emphasis in original). As such, this Court will also proceed by analyzing the factors on a sliding scale, absent contrary binding authority from the D.C. Circuit. Therefore, “[t]he motion to stay may be granted when a ‘serious legal question is presented, when little if any harm will befall other interested persons or the public, and when denial of the order would inflict irreparable injury on the movant.’ ” Shays, 340 F.Supp.2d at 45 (quoting Wash. Metro. Area Transit Comm'n, 559 F.2d at 844).

2. Application of the Four Factors

a. Likelihood of success on the merits

With respect to the first factor, Alaska argues that it is likely to prevail on the merits of its appeal, arguing that the Court's decision misapprehends the comprehensive nature of the Alaska Native Claims Settlement Act, misapprehends the reasons Congress did not repeal the land-to-trust statute, and does not give appropriate weight to the Supreme Court's decision in Alaska v. Native Village of Venetie, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998). See Alaska's Mot. Stay 8. Meanwhile, the plaintiffs and the Secretary argue that this is Alaska's third time making these arguments to this Court, and a party offering a “regurgitation of rejected arguments,” cannot establish a likelihood of success on the merits. SeeShays, 340 F.Supp.2d at 46.³ For the...