United States v. Alaska
| Decision Date | 23 June 2022 |
| Docket Number | Case No. 1:22-cv-00054-SLG |
| Citation | 608 F.Supp.3d 802 |
| Parties | UNITED STATES of America, Plaintiff, and Kuskokwim River Inter-Tribal Fish Commission, Intervenor-Plaintiff, v. The State of ALASKA, the Alaska Department of Fish & Game, and Doug Vincent-Lang, in his official capacity as Commissioner of the Alaska Department of Fish & Game, Defendants. |
| Court | U.S. District Court — District of Alaska |
Paul A. Turcke, U.S. Department of Justice ENRD-NRS, Washington, DC, for Plaintiff.
Nathaniel Amdur-Clark, Sonosky Chambers Sachse Miller & Monkman LLP, Anchorage, AK, for Intervenor-Plaintiff.
Aaron Christian Peterson, Alaska Department of Law, Anchorage, AK, Margaret A. Paton-Walsh, State of Alaska, Department of Law, Office of the Attorney General, Civil Division, Anchorage, AK, for Defendant The State of Alaska.
Margaret A. Paton-Walsh, State of Alaska, Department of Law, Office of the Attorney General, Civil Division, Anchorage, AK, for Defendants The Alaska Department of Fish & Game, Doug Vincent-Lang.
Before the Court at Docket 5 is Plaintiff United States of America's Motion for Preliminary Injunction. Intervenor-Plaintiff Kuskokwim River Inter-Tribal Fish Commission ("the Commission") joined Plaintiff's motion at Docket 14.1 Defendants State of Alaska; Alaska Department of Fish & Game (ADF&G); and Doug Vincent-Lang, Commissioner of ADF&G, responded in opposition at Docket 17. Plaintiff replied at Docket 21, and Intervenor-Plaintiff joined Plaintiff's reply at Docket 24. Defendants responded in opposition to Intervenor-Plaintiff's joinder at Docket 30. The Court heard oral argument on June 21, 2022.2
Plaintiff seeks a preliminary injunction "to prohibit Defendants from continuing to authorize or implement actions that contravene the rural Alaskan subsistence priority and are preempted by federal law."3 The state action at issue is Defendants’ Emergency Order #3-S-WR-02-22, which Plaintiff describes as "purport[ing] to open the Kuskokwim River within the Yukon Delta National Wildlife Refuge to gillnet fishing by all Alaskans in violation of federal orders issued to effectuate the ANILCA Title VIII rural subsistence priority."4 Defendants respond that Plaintiff has not met its burden to justify the issuance of a preliminary injunction.
The Court set forth the factual background relevant to the instant motion in its May 31, 2022 Order Denying Plaintiff's Motion for Temporary Restraining Order and assumes familiarity here.5 On June 17, 2022, the Court allowed the Commission to intervene as a plaintiff.6 As explained by Intervenor-Plaintiff, it "represents the Federally Recognized Indian Tribes of the Kuskokwim River watershed concerning fisheries management matters, including the management of the Kuskokwim River Chinook and chum salmon populations."7
The standard for obtaining a preliminary injunction was articulated in Winter v. Natural Resources Defense Council, Inc. , where the United States Supreme Court held that plaintiffs seeking preliminary injunctive relief must establish that (1) they are likely to succeed on the merits;8 (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest.9 Winter places the burden on a plaintiff to make a showing on all of the Winter factors before a court will issue a preliminary injunction.10
Injunctive relief is an equitable remedy, and "[t]he essence of equity jurisdiction is the power of the court to fashion a remedy depending upon the necessities of the particular case."11
Plaintiff and Intervenor-Plaintiff assert that all four Winter elements—likelihood of success on the merits, irreparable harm, the balance of the equities, and public interest—weigh in favor of a preliminary injunction. Defendants respond that Plaintiff has not shown that any of the Winter elements support the issuance of a preliminary injunction.
The Alaska National Interest Lands Conservation Act (ANILCA) provides that rural subsistence users are given priority to hunt and fish on federal land and waters within Alaska: "[N]onwasteful subsistence uses of fish and wildlife and other renewable resources shall be the priority consumptive uses of all such resources on the public lands of Alaska when it is necessary to restrict taking in order to assure the continued viability of a fish or wildlife population or the continuation of subsistence uses of such population, the taking of such population for nonwasteful subsistence uses shall be given preference on the public lands over other consumptive uses."12
Plaintiff construes the relevant question as one of conflict preemption governed by the Supremacy Clause of the United States Constitution.13 Plaintiff maintains that "the State's management actions on the Kuskokwim River within the [Yukon Delta National Wildlife] Refuge contradict federal management efforts and create an obstacle to ANILCA's federal purposes and objectives of prioritizing the subsistence use of Chinook and chum salmon within the Refuge over all other uses."14 Plaintiff asserts that ANILCA's express policy of protecting and prioritizing rural subsistence users’ ability to harvest fish preempts any state action that conflicts with federal law or a federal emergency order.15 Plaintiff contends that ANILCA " in waters located within federal lands.16
Defendants first respond that federal preemption fails here because the Federal Subsistence Board (FSB) is not validly constituted and thus cannot legally manage Kuskokwim River fisheries. Specifically, Defendants contend that the make-up of the FSB violates the Appointments Clause of the federal Constitution because the FSB members "exercise[ ] significant authority pursuant to the laws of the United States"17 and thus are "principal officers of the United States" but have not been appointed by the President with the consent of the Senate.18 And Defendants maintain that the FSB further violated the Appointments Clause when it delegated what they describe as "unreviewable executive power" to the Refuge Manager, "giv[ing] the Refuge Manager ‘significant authority pursuant to the laws of the United States.’ "19 Defendants also respond that the Refuge Manager's emergency actions were arbitrary and capricious in violation of the Administrative Procedure Act (APA) because he improperly entered into a Memorandum of Understanding with the Commission20 and because his emergency actions lacked scientific justification or support.21
Plaintiff replies by first noting that "Defendants continue to forego any response to Plaintiff's preemption claim" that "federal action taken pursuant to ANILCA Title VIII preempts contradictory state action within the Refuge."22 As to Defendants’ APA arguments, Plaintiff replies that Defendants have "not yet invoked the APA's right of action" and thus "any such claims are not yet before the Court, so their assertion here is premature."23 Regarding Defendants’ Appointment Clause arguments, Plaintiff replies that Defendants are "unlikely able to demonstrate standing" and that claim preclusion prevents Defendants from maintaining these Appointment Clause claims.24 Plaintiff also contends that, even if Defendants had standing and had timely brought their arguments, Defendants are making a collateral attack on the validity of the federal action and "Plaintiff has amply demonstrated that the federal actions at issue here are within the scope of congressionally delegated authority, and the State's Appointments Clause arguments to the contrary have no merit."25 Intervenor-Plaintiff agrees that "federal law clearly establishes that ANILCA preempts the State's asserted authority; and the State's arguments raising issues of constitutional authority and administrative law are both meritless and misplaced."26
The Court finds that, on the current record, Plaintiff has shown a likelihood of success on the merits. Defendants have not contested ANILCA's rural subsistence priority nor explained how the State's emergency order does not "both violate the federal orders and stand as an obstacle" to the congressional intent of ANILCA.27 Instead, Defendants assert that the federal action is constitutionally flawed but do not offer sufficient support for those assertions. Defendants acknowledge that additional discovery "may be necessary" to develop their Appointments Clause arguments,28 which implicitly acknowledges the current gaps in those arguments. Regarding Defendants’ yet-unpled APA claims as to the FSB's actions, Defendants have not properly raised an APA claim nor rebutted the presumption of regularity that attaches to the FSB's actions.29 In contrast, Plaintiff has established that ANILCA's rural subsistence use priority preempts the State's regulatory authority when Plaintiff has determined that restrictions are "necessary to meet tributary and drainage-wide escapement goals while allowing for some harvest by federally qualified subsistence users."30
Plaintiff and Intervenor-Plaintiff contend that irreparable harm will occur in three ways, each of which Defendants dispute.
Plaintiff's first and primary argument stresses ANILCA's federal subsistence user priority and asserts that the State's "interference with the FSB's ability to provide for federally...
To continue reading
Request your trial