995 F.Supp.2d 7 (D.D.C. 2014), C. A. 06-0969 (RC), Akiachak Native Community v. Jewell

Docket Nº:Civil Action : 06-0969 (RC)
Citation:995 F.Supp.2d 7
Opinion Judge:RUDOLPH CONTRERAS, United States District Judge.
Party Name:AKIACHAK NATIVE COMMUNITY, et al., Plaintiffs, v. SALLY JEWELL, Secretary of the Interior, et al., Defendants. and STATE OF ALASKA, Defendant-Intervenor
Attorney:Civil Action No.: 06-0969 (RC) For AKIACHAK NATIVE COMMUNITY, Plaintiff: Hollis L. Handler, LEAD ATTORNEY, PRO HAC VICE, ALASKA LEGAL SERVICES CORPORATION, Juneaau, AK; Richard A. Guest, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Washington, DC; Heather Kendall Miller, NATIVE AMERICAN RIGHTS FUN...
Case Date:June 26, 2014
Court:United States District Courts, District of Columbia

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995 F.Supp.2d 7 (D.D.C. 2014)

AKIACHAK NATIVE COMMUNITY, et al., Plaintiffs,

v.

SALLY JEWELL, Secretary of the Interior, et al., Defendants. and STATE OF ALASKA, Defendant-Intervenor

Civil Action No.: 06-0969 (RC)

United States District Court, D. Columbia

June 26, 2014

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[Copyrighted Material Omitted]

Page 9

Re Document No.: 139.

For AKIACHAK NATIVE COMMUNITY, Plaintiff: Hollis L. Handler, LEAD ATTORNEY, PRO HAC VICE, ALASKA LEGAL SERVICES CORPORATION, Juneaau, AK; Richard A. Guest, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Washington, DC; Heather Kendall Miller, NATIVE AMERICAN RIGHTS FUND, Anchorage, AK.

For CHALKYITSIK VILLAGE, CHILKOOT INDIAN ASSOCIATION, TULUKSAK NATIVE COMMUNITY (IRA), Plaintiffs: Richard A. Guest, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Washington, DC; Heather Kendall Miller, NATIVE AMERICAN RIGHTS FUND, Anchorage, AK.

For ALICE KAVAIRLOOK, from Case No. 06-1405, Plaintiff: Heather Kendall Miller, NATIVE AMERICAN RIGHTS FUND, Anchorage, AK; Richard A. Guest, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Washington, DC; Andrew R. Harrington, ALASKA LEGAL SERVICES CORPORATION, Fairbanks, AK.

For UNITED STATES DEPARTMENT OF INTERIOR, Defendant: Maureen Elizabeth Rudolph, LEAD ATTORNEY, Daniel G. Steele, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.

For DIRK KEMPTHORNE, Secretary of the Interior, from Case No. 06-1405, Defendant: Daniel G. Steele, LEAD ATTORNEY UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources, Washington, DC; Maureen Elizabeth Rudolph LEAD ATTORNEY, Daniel G. Steele, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.

For STATE OF ALASKA, Intervenor Defendant: Elizabeth Jeanne Barry, J. Anne Nelson, LEAD ATTORNEYS, STATE OF ALASKA DEPARTMENT OF LAW, Anchorage, AK.

OPINION

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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. See Akiachak 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

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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

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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." See Fed.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. See Wash. Met. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843, 182 U.S.App. D.C. 220 (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, 249 U.S.App. D.C. 54 (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, 396 U.S.App. D.C. 1 (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); accord Kingman 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...

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