State of Alaska, Department of Fish and Game v. Federal Subsistence Board et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STATE OF ALASKA, DEPARTMENT
OF FISH AND GAME
Plaintiff,
v.
FEDERAL SUBSISTENCE BOARD,
et al.,
Defendants.
Case No. 3:20-cv-00195-SLG
ORDER RE MOTIONS FOR TEMPORARY RESTRAINING ORDERS AND
PRELIMINARY INJUNCTIONS
Before the Court at Docket 3 is the State of Alaska, Department of Fish and
Game’s (“the State”) Motion for Temporary Restraining Order and Preliminary
Injunction. Also before the Court at Docket 4 is the State’s Motion for TRO and
Preliminary Injunction.
In its Complaint, the State asserts six counts against the Federal
Subsistence Board (“FSB”); David Schmid, in his official capacity as the Regional
Supervisor of the U.S. Forest Service; Sonny Perdue III, in his official capacity as
the U.S. Secretary of Agriculture; Gene Peltola, in his official capacity as Alaska
Regional Director for the Bureau of Indian Affairs; Greg Siekaniec, in his official
capacity as Alaska Regional Director for the U.S. Fish and Wildlife Service; Chad
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Case No. 3:20-cv-00195, State of Alaska, Dep’t of Fish & Game v. Fed. Subsistence Bd., et al.
Order re Plaintiff’s Motions for Temporary Restraining Order and Preliminary Injunction
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Padgett, in his official capacity as State Director for Alaska U.S. Bureau of Land
Management; Don Striker, in his official capacity as Alaska Regional Supervisor
for the National Park Service; David Bernhardt, in his official capacity as the U.S.
Secretary for the Interior; Anthony Christianson, in his official capacity as Chair of
the FSB; Charlie Brower, in his official capacity as member of the FSB; and
Rhonda Pitka, in her official capacity as member of the FSB (collectively
“Defendants”). The State alleges the following counts against Defendants: (1)
violation of the Open Meetings Act, (2) violation of ANILCA Title VIII by opening a
hunt for deer and moose near Kake, (3) violation of ANILCA Title VIII by authorizing
a hunt for deer and moose only for members of the Organized Village of Kake, (4)
violation of ANILCA Title VIII by closing federal lands based on competition
between hunters, (5) violation of ANILCA § 1314, and (6) violation of the
Administrative Procedure Act (“APA”).1 The State seeks declaratory judgment,
injunctive relief, costs and fees, and asks the Court to vacate the decisions by the
FSB at issue in this action.2
The State’s allegations arise from a series of actions taken by the FSB
beginning in April, 2020. First, on April 9, 2020, in light of the COVID-19 pandemic
and resulting concerns of food security, the FSB approved a process to delegate
broad authority to local federal land managers to adopt emergency regulations to
1 Docket 1 at 17–22, ¶¶ 65–91.
2 Docket 1 at 22–24, ¶¶ 1–13.
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Case No. 3:20-cv-00195, State of Alaska, Dep’t of Fish & Game v. Fed. Subsistence Bd., et al.
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allow hunting and fishing where necessary for public safety.3 On June 22, 2020,
after a hearing, the FSB approved a request from the Organized Village of Kake
to open a hunt for tribal members for 30 days, with the possibility to extend for
another 30 days.4 The State alleges that testimony at the hearing confirmed that
there were in fact no supply chain disruptions and that meat remained available in
the village.5 After the FSB approved the request, the local federal land manager
for the region issued an Emergency Special Action Permit authorizing the tribe to
engage in limited hunting from June 24, 2020 to August 22, 2020.6 The permit
allowed the tribe to select the individuals for the hunt.7 The FSB is also currently
considering a request from the Koyukuk Tribal Village for a 60-day emergency
hunt, limited to three moose, due to a concern of potential food shortages.8
Second, the State alleges that on July 16, 2020, the FSB met and adopted
a temporary special action request (WSA 20-03) to close moose and caribou
hunting on federal lands in Game Management Units 13A and 13B to non-federally
3 Docket 1 at 10, ¶ 40.
4 Docket 1 at 10–12, ¶¶ 44–50.
5 Docket 1 at 12, ¶¶ 46–48.
6 Docket 1 at 13, ¶ 51.
7 Docket 1 at 13, ¶ 51.
8 Docket 1 at 13–14, ¶¶ 52–54. The State alleges that the FSB will take action on this
emergency request by email poll without holding a meeting. Docket 1 at 14, ¶ 54.
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Case No. 3:20-cv-00195, State of Alaska, Dep’t of Fish & Game v. Fed. Subsistence Bd., et al.
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qualified users as an experiment to reduce hunter competition.9 Although the
proposal was for a closure of one year, the FSB ultimately implemented a two-year
closure to “reduce the administrative burden associated with processing special
requests.”10
The State now moves for a temporary restraining order and injunctive
relief.11
LEGAL STANDARD
The standard for obtaining a temporary restraining order is the same as that
for a preliminary injunction. In Winter v. Natural Resources Defense Council, Inc.,
the United States Supreme Court held that plaintiffs seeking preliminary injunctive
relief must establish that “(1) they are likely to succeed on the merits; (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.”12 Winter was focused on the second element, and clarified that
irreparable harm must be likely, not just possible, for an injunction to issue.13
9 Docket 1 at 14, ¶ 55.
10 Docket 1 at 14, ¶ 55–56.
11 Docket 3 and Docket 4.
12 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
13 See Winter, 555 U.S. at 25; see also All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011).
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Following Winter, the Ninth Circuit addressed the first element—the
likelihood of success on the merits—and held that its “serious questions” approach
to preliminary injunctions was still valid “when applied as a part of the four-element
Winter test.”14 Accordingly, if a plaintiff shows “that there are ‘serious questions
going to the merits’—a lesser showing than likelihood of success on the merits—
then a preliminary injunction may still issue if the ‘balance of hardships tips sharply
in the plaintiff’s favor.”15 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.”16
DISCUSSION
The State seeks two temporary restraining orders and preliminary
injunctions.17 The first order would prohibit implementation of the FSB’s closure of
moose and caribou hunting to non-federally qualified users on portions of Unit 13.18
The State contends that a temporary restraining order and preliminary injunction
is necessary “because State management of hunting is [being] unduly restricted
14 See All. for the Wild Rockies, 632 F.3d at 1131–35.
15 Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in
original) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir.
2013)).
16 Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1022 (9th Cir. 2009) (citing United States
v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987)).
17 See Docket 3 and Docket 4.
18 Docket 3-4 at 1 (Proposed Order).
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and Alaskans will continue to suffer immediate and irreparable harm” as their
hunting opportunities are lost.19 The State emphasizes that an immediate
injunction is needed because the season for caribou opened on August 10, 2020,
and the season for moose is set to open August 20, 2020.20
The other order sought would prohibit the FSB from (1) delegating regulatory
authority to in-season managers without complying with the Open Meetings Act,
(2) opening a hunt near the Organized Village of Kake to only tribal members, (3)
opening any hunt for alleged COVID-19 reasons, (4) refusing to share important
harvest information with the State, and (5) delegating administrative authority to
entities outside a federal agency.21 The State contends that the order is necessary
to protect the “State’s ability to manage fish and game” in accordance with the law,
and to avoid “depriv[ation] of Alaskans, including local subsistence-dependent
Alaskans, of subsistence resources in the future.”22
Having reviewed the State’s motions, the Court finds that the State has not
satisfied the requirements for a TRO at this juncture. The “purpose of a TRO is to
preserve the status quo pending a full hearing on a preliminary injunction.”23 The
19 Docket 3-1 at 4, 18.
20 Docket 3-1 at 4.
21 Docket 4-4 at 1–2 (Proposed Order).
22 Docket 4 at 1–2.
23 Bronco Wine Co. v. U.S. Dept. of Treasury, 997 F. Supp. 1309, 1313 (E.D. Cal. 1996).
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Court considered whether the status quo would materially change before a hearing
could be held on the State’s motions for preliminary injunction, and concludes that
it would not. According to the State’s own allegations, the FSB’s delegation of
authority dates back to April 9, 2020;24 its decision on the Organized Village of
Kake’s emergency request to authorize the local federal authority to permit an
emergency hunt occurred on June 22, 2020; the hunt began on June 24, 2020 and
is set to expire August 22, 2020;25 and the FSB’s adoption of the WSA 20-03 and
its proposed closure of Unit 13 occurred on July 16, 2020.26 The closure of the
state caribou hunting season is already in effect as the State waited until August
10, 2020, its opening day,27 to file these motions for temporary restraining orders
and injunctive relief.28 Thus, with respect to all of the State’s claims (excepting
those relating to the moose hunting season set to open on August 20, 2020), the
status quo is unlikely to change before the Court holds a hearing on the preliminary
injunction. Moreover, the Court finds that the State’s delay in requesting a TRO
militates against its issuance at this time.29 The State’s delay in seeking injunctive
24 Docket 1 at 10, ¶ 40.
25 Docket 1 at 12–13, ¶¶ 49–51.
26 Docket 1 at 14, ¶ 55.
27 Docket 3 at 4.
28 Docket 3 and Docket 4.
29 See, e.g., Rovio Ent. Ltd. v. Royal Plus Toys, Inc., 907 F. Supp. 2d 1086, 1097 (N.D.
Cal. 2012) (reasoning that “[p]arties spurred on by the threat of an actual or immediate
irreparable harm file for TROs as quickly as possible to head or stave it off” and citing to
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relief “implies a lack of urgency and irreparable harm.”30 This is particularly true
where the “harm has occurred.”31
For these reasons, the Court finds that temporary restraining orders are not
warranted at this time. However, the Court will establish a briefing schedule and
set a hearing on the State’s motions for preliminary injunction.
CONCLUSION
In light of the foregoing, the State’s motions for a temporary restraining order
at Docket 3 and at Docket 4 are DENIED without prejudice. The Court orders as
follows:
1. Any opposition by Defendants to the motions for a preliminary injunction
shall be served and filed on or before August 24, 2020; the State shall serve and
file any reply on or before August 31, 2020. A hearing on the motions will be held
by videoconference on September 8, 2020, at 10:00 a.m. Counsel will receive
instructions to access the virtual courtroom in a separate sealed docket entry.
cases where the party filed with delays of zero to ten days).
30 Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d 1374, 1377–78 (9th Cir. 1985);
see, e.g., Studio 010, Inc. v. Digital Cashflow LLC, Case No. 2:20-cv-01018-RAJ, 2020
WL 3605654 (W.D. Wash. July 2, 2020) (finding that plaintiff’s “delay in seeking a TRO
further undermines its claim of immediate irreparable harm” where plaintiff delayed three
weeks in filing emergency motion).
31 Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 91 F.2d 536, 544 (9th Cir. 1993), vacated
on other grounds, 19 F.3d 449 (9th Cir. 1994) (quoting Aguayo ex rel. NLRB v. Tomco
Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988). “[D]elay is most relevant when it
‘suggests that the harm has occurred and the parties cannot be returned to the status
quo.’” W. Watersheds Project v. Bernhardt, 391 F. Supp. 3d 1002, 1018 (D. Or. 2019)
(internal quotations omitted) (quoting Miller 91 F.2d at 544).
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Counsel is instructed to check the Court website at
https://www.akd.uscourts.gov/virtual-courtrooms for any updated connection
information prior to the hearing date.
2. The following procedure shall govern the hearing on the preliminary
injunction motions:
(a) Each party shall be accorded a total of 30 minutes for the presentation
of any evidence and argument by counsel.
(b) A party may rely on the declarations submitted with its motion,
opposition or reply in lieu of, or in addition to, the presentation of direct testimony
by that witness, but only so long as the declarant is available at the hearing for
cross-examination.
DATED this 14th day of August, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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