Tok Air Service, LLC v. Haaland et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TOK AIR SERVICE, LLC, )
)
Plaintiff, )
)
vs. )
)
DEB HAALAND, in her official capacity as )
Secretary of the United States Department of )
the Interior, et al., )
) No. 4:21-cv-0012-HRH
Defendants. )
_______________________________________)
O R D E R
Motion for Temporary Restraining Order1
Plaintiff moves for a temporary restraining order followed by a preliminary injunction
requiring the National Park Service “to rescind the denial/suspension of” its Big Game
Transport Commercial Use Authorization for 2021 and to temporarily grant it a Big Game
Transport Commercial Use Authorization “under the same conditions as 2020. . . .”2
Defendants have filed an opposition to the motion,3 to which plaintiff has replied.4 Oral
1Docket No. 17.
2Amended Complaint for Injunctive Relief at 2, ¶ 7; 10, ¶ B, Docket No. 16.
3Docket No. 21.
4Docket No. 23.
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argument was not requested and is not deemed necessary. In addition, the court does not
deem an evidentiary hearing necessary.
Background
Plaintiff is Tok Air Service, LLC. The sole member of Tok Air is Zack Knaebel.5
Defendants are Deb Haaland, the Secretary of the United States Department of the Interior;
Shawn Benge, Director of the National Park Service; Jeff Mow, Alaska Regional Director
of the National Park Service; and Ben Bobowski, the Superintendent of the Wrangell-St.
Elias National Park. Defendants are all sued in their official capacities.
Section 101925 of Title 54 of the United States Code provides that “the Secretary [of
Interior], on request, may authorize a private person, corporation, or other entity to provide
services to visitors to [National Park] System units through a commercial use authorization
[‘CUA’].” CUAs may only be issued for the provision of services that
(A) will have minimal impact on resources and values of a
System unit; and
(B) are consistent with the purpose for which the System unit
was established and with all applicable management plans and
Service policies and regulations.
54 U.S. § 101925(b)(1). The term of a CUA may not exceed two years, and the statute
prohibits any “preferential right of renewal. . . .” 54 U.S.C. § 101925(f).
5Amended Complaint for Injunctive Relief at 1, ¶ 2, Docket No. 16.
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The Secretary has delegated her authority regarding CUAs to National Park
managers.6 Policy 700-001 “provides guidance to Alaska national park managers when
considering whether to suspend, restrict or revoke a Commercial Use Authorization (CUA)
and when considering when to approve an application for a future CUA.”7 The
policy is intended to provide general guidance regarding the
actions to be taken in the event of a permittee violation. The
Superintendent may take a different action than that called for
in this policy at his/her discretion. The Superintendent retains
the authority to immediately suspend, restrict or revoke a CUA
or deny a future CUA application. These actions are subject to
the Administrative Procedure Act, . . . and therefore the Superin-
tendent’s discretion is not unlimited. A Superintendent’s
decision will be overturned by a court if it is found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.[8]
Violations for which Policy 700-001 may be invoked include:
1. Failure to comply with state or federal law, regulation or
administrative action where a link exists between the
offense and the business activity authorized, regardless
of whether the violation occurred in a unit of the Na-
tional Park System;
* * *
4. Failure to comply with the provisions and conditions of
the CUA, including national, regional, and park-specific
conditions . . . ;
6Exhibit 3 at 1, Motion for Temporary Restraining Order [etc.], Docket No. 17.
7Id.
8Id. at 2.
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5. Failure to adequately and timely address material and
documented operational concerns expressed by the
National Park Service that may negatively impact visitor
experience, park resources and/or staff and visitor
safety.[9]
Plaintiff first applied for and was granted Air Taxi and Big Game Transport CUAs
in 2014. A Big Game Transport CUA allows the holder to fly nonguided hunters in and out
of a national park. An Air Taxi CUA allows the holder to fly all other categories of users in
and out of a national park.
In September 2020, Knaebel was charged by the State of Alaska with “violating AS
8.54.720(a)(2) for allegedly hindering a lawful hunt outside” of the Wrangell-St. Elias
National Park.10 Knaebel is alleged to have parked his plane for two hours on a remote
airstrip causing another hunter to be delayed in arriving at the airstrip.11 Plaintiff alleges that
the other hunter was still able to land the “day he expected to and could not have legally
hunted that day.”12 Knaebel pled not guilty and his case has not yet gone to trial. Trial is
currently set for October 25, 2021, although as plaintiff has pointed out, due to the backlog
of cases due to the COVID-19 pandemic, this date is likely to change.13
9Id.
10Amended Complaint for Injunctive Relief at 4, ¶ 21, Docket No. 16.
11Id.
12Id. at ¶ 23.
13Plaintiff’s Reply to Defendant’s Opposition at 6, Docket No. 14.
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Plaintiff filed an application for its 2021 Air Taxi and Big Game Transport CUA on
January 28, 2021.14 On May 11, 2021, Bobowski advised Knaebel that plaintiff’s 2021 CUA
application for Air Taxi operations had been approved, but its application for a Big Game
Transport CUA had been denied.15 Bobowski stated that, pursuant to Policy Number 700-
001,
CUAs may be suspended or restricted when the CUA holder is
under investigation or is charged with a criminal offense by state
or federal authorities when a link exists between the conduct
underlying the offense and the business activity authorized, even
when the alleged offense occurred outside NPS-managed lands.
Your pending criminal charge for hindering a lawful hunt is
sufficient to deny this CUA application.[16]
Bobowski further stated that Knaebel’s
pending criminal charge is consistent with numerous complaints
the NPS has received about your business practices within the
park. The complaints primarily involve hunting guide conces-
sionaires, their clients and other commercial user groups. While
none of these complaints have materialized into criminal
charges to date, nor have they previously resulted in a denial of
a permit application, collectively they represent a significant
concern to the Park as you, Tok Air Service LLC, ha[ve]
received more complaints in total since 2015 than any other
CUA holder or concession contract at Wrangell-St. Elias
National Park and Preserve. Moreover, and more importantly,
your interactions with law enforcement have not been consis-
14Affidavit of Zachary Knaebel at 1, ¶ 2, Exhibit 1 at 1, Motion for Temporary
Restraining Order [etc.], Docket No. 17.
15Exhibit 2 at 1, Motion for Temporary Restraining Order [etc.], Docket No. 17.
16Id.
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tently professional as would be expected of a National Park
Service CUA holder.[17]
On June 10, 2021, plaintiff filed an appeal with the regional director of the NPS
regarding the denial of its Big Game Transport CUA. On June 29, 2021, Jeffrey Mow,
Acting Regional Director, issued a decision on plaintiff’s appeal.18 Mow “modifi[ed]
Superintendent’s Bobowski’s decision” and “authorize[d] issuance of a Big Game Transport
CUA . . . subject to immediate suspension pending satisfaction” of a number of conditions.19
The conditions include:
1. Satisfactory resolution of the pending criminal charge for
hindering a lawful hunt[.]
2. Satisfactory resolution of the pending administrative
charges with the State of Alaska, Big Game Commercial
Services Board: 1. falsification of a Transporter Activ-
ity Report in 2018, . . . and 2. blocking of an airstrip in
2020 during hunting season[.]
3. Satisfactory resolution to the ongoing investigation
involving a sub legal sheep[.]
4. No new criminal charges, administrative charges or
investigations are initiated against Mr. Knaebel.
5. Submission of a satisfactory letter of intent from Mr.
Knaebel to WRST detailing specific steps he will take to
cooperate with: (1) law enforcement consistent with the
Alaska Administrative Code 12 AAC 75.440 as well as
expectations of professional behavior of a National Park
17Id.
18Id. at 3-12.
19Id. at 4.
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Service CUA holder; and (2) other commercial operators,
their clients, and visitors.[20]
Mow explained that the decision to issue a Big Game Transport CUA and then immediately
suspend it was based on the following:
(1) Mr. Knaebel has been charged with a criminal violation
associated with big game transport activities under State law; (2)
Mr. Knaebel committed a violation under his prior CUA by
failing to operate under conditions satisfactory to the Superin-
tendent; and (3) Mr. Knaebel committed a violation under his
prior CUA by failing to adequately and timely address material
and documented operational concerns expressed by NPS that
may negatively impact visitor experience, park resources and/or
staff and visitor safety.[21]
The decision set out, in some detail, incidents of Knaebel’s alleged “unprofessional and
unethical behavior toward Federal and State officials” and his “[u]nprofessional and
unethical behavior toward other park users.”22 Knaebel has addressed these incidents, also
in some detail, in his third affidavit.23
On June 11, 2021, plaintiff commenced this action by filing a complaint for injunctive
relief. In its complaint, plaintiff asserted Administrative Procedure Act (APA) claims based
on allegations that the May 11, 2021 denial of its Big Game Transport CUA was arbitrary
and capricious, that the denial violated the Fourteenth Amendment, and that the denial
20Id. at 4-5.
21Id. at 4.
22Id. at 5-9.
23Exhibit 1 at 13-55, Motion for Temporary Restraining Order [etc.], Docket No. 17.
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violated Policy Number 700-001. On the same day, plaintiff filed a motion for a preliminary
injunction.24
By order of July 7, 2021,25 the court denied plaintiff’s motion for a preliminary
injunction on the grounds that the May 11, 2021 denial of plaintiff’s Big Game Transport
CUA was not a final agency action.26
On July 23, 2021, plaintiff filed an amended complaint.27 In its amended complaint,
plaintiff asserts APA claims based on allegations that the June 29, 2021 decision was
arbitrary and capricious and that the June 29, 2021 decision violated the Fifth Amendment.
Plaintiff now moves for a temporary restraining order (“TRO”) to be followed by a
preliminary injunction upon expiration of the TRO. As Knaebel characterizes it, plaintiff
seeks to have the court order “the National Park Service to unsuspend [the] Tok Air Service
2021 Big Game Transport CUA and remove conditions 1-4.”28
Discussion
Rule 65, Federal Rules of Civil Procedure, governs temporary restraining orders and
preliminary injunctions. “Temporary restraining orders are emergency measures, intended
24Docket No. 3.
25Docket No. 15.
26Id. at 10.
27Docket No. 16.
28Third Knaebel Affidavit at 42, ¶ 92, Exhibit 1 at 54, Motion for Temporary
Restraining Order [etc.], Docket No. 17.
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to preserve the status quo pending a fuller hearing on the injunctive relief requested, and the
irreparable harm must therefore be clearly immediate.” Givens v. Newsom, 459 F. Supp. 3d
1302, 1309 (E.D. Cal. 2020). “‘A preliminary injunction is an extraordinary remedy never
awarded as of right.’” Calif. Trucking Ass’n v. Bonta, 996 F.3d 644, 652 (9th Cir. 2021)
(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).
“The standard for issuing a temporary restraining order is identical to the standard for
issuing a preliminary injunction.” Givens, 459 F. Supp. 3d at 1039. “‘A plaintiff seeking
a preliminary injunction must establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.’” Calif. Trucking
Ass’n, 996 F.3d at 652 (quoting Winter, 555 U.S. at 24).
“A [temporary restraining order] or [a] preliminary injunction can take two forms.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir.
2009). “A prohibitory injunction prohibits a party from taking action and ‘preserve[s] the
status quo pending a determination of the action on the merits.’” Id. at 878-79 (quoting
Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir.1988)). But, here, plaintiff seeks a
mandatory injunction which “‘orders a responsible party to take action.’” Id. at 879 (quoting
Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996)). Mandatory injunctions are “‘particu-
larly disfavored.’” Id. (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th
Cir.1980)). “In general, mandatory injunctions ‘are not granted unless extreme or very
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serious damage will result and are not issued in doubtful cases or where the injury
complained of is capable of compensation in damages.’” Id. (quoting Anderson, 612 F.2d
at 1115).
Defendants argue that plaintiff’s request for mandatory injunctive relief in this APA
case is per se improper. Plaintiff seeks to have the court order NPS “to rescind the
denial/suspension of” its “CUA for 2021 and “to grant the CUA pending final order of this
court.”29 But, defendants argue that the court cannot order NPS to make a specific decision
as to plaintiff’s Big Game Transport CUA because the issuance of a permit is a matter of
agency discretion. This argument is based on “Section 701(a)(2) of the APA[, which]
precludes judicial review of agency actions ‘committed to agency discretion by law.’” Perez
Perez v. Wolf, 943 F.3d 853, 860 (9th Cir. 2019) (quoting 5 U.S.C. § 701(a)(2)). Section
“701(a)(2) applies only in the ‘rare instances’ where ‘the statute is drawn so that a court
would have no meaningful standard against which to judge the agency’s exercise of
discretion.’” Id. at 861 (quoting Spencer Enterprises, Inc. v. United States, 345 F.3d 683,
688 (9th Cir. 2003)). “If there is no law to apply, there are no issues susceptible of judicial
resolution, and accordingly the courts are denied jurisdiction over the matter.” Ariz. Power
Auth. v. Morton, 549 F.2d 1231, 1239 (9th Cir. 1977) (citation omitted).
Defendants cite to Drakes Bay Oyster Co. v. Salazar, 921 F. Supp. 2d 972 (N.D. Cal.
2013), in support of this argument. There, the plaintiffs challenged a decision by the
29Amended Complaint for Injunctive Relief at 2, ¶ 7, Docket No. 16.
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Secretary of Interior which “directed the National Park Service (NPS) to allow the
[Company’s] permit” for oyster farming “to expire at the end of its current term.” Id. at 891.
The “[p]laintiffs filed suit to have the Secretary’s Decision not only declared ‘null and void’
and ‘set aside,’ but, among other relief, to ‘Order [the] Secretary . . . to issue [the Company]
a [New] SUP [special use permit],’ or alternatively, ‘to vacate the decision . . . with
instructions to make a new decision.’” Id. at 982. The Secretary’s authority to issue the
special use permit in question was based on a provision, Section 124, in an appropriations
bill that applied only to “Drake’s Bay Oyster Company’s Reservation of Use and Occupancy
and associated special use permit. . . .” Id. at 977.
The defendants argued that the court lacked jurisdiction under the APA because the
Secretary’s action fell “within the exception set forth in 5 U.S.C. section 701(a)(2) of the
APA exempting from judicial review any agency action which is ‘committed to agency
discretion by law[.]’” Id. at 983. The court held that the exception in Section 701(a)(2)
applied. Id. at 986. The court explained that Section 701(a)(2) has been interpreted to
“exclude from review ‘agency actions’ that fall within one of two categories, either those
actions where: (i) a court has no meaningful standard against which to judge the exercise of
discretion and therefore no law to apply; or (ii) the agency’s action requires a complicated
balancing of factors peculiarly within the agency’s expertise.” Id. The court found that “the
record demonstrates that Congress afforded the Secretary discretion to make his Decision
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without sufficient meaningful standards for the Court to review the Decision within the
confines of the APA.” Id. at 988. The court concluded that
[a]s Congress envisioned, unless a court can meaningfully
review the specific manner in which an agency must act, not
dictating therein the conclusion the agency must reach, review
under the APA is unavailable. Here, because Section 124
sought to address one specific special use permit for one specific
business on a specific timeframe, the Secretary was afforded the
discretion to decide whether to issue the permit and judicial
review is not authorized.
Id. at 990.
But, here, although both the Superintendent and the Director are afforded discretion
when deciding whether to issue a CUA, that does not make their decisions unreviewable.
Meaningful standards against which to judge their exercise of discretion can be found both
in 54 U.S. § 101925(b)(1) and in Policy 700-001. And in fact, Policy 700-001 expressly
states that “the Superintendent’s discretion is not unlimited. A Superintendent’s decision will
be overturned by a court if it is found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.”30 Thus, the Section 701(a)(2) exception does not
apply here.
That does not, however, necessarily mean that the court could grant plaintiff the
injunctive relief it has requested. Defendants also seem to be raising an argument based on
Section 705 of the APA, which provides:
30Exhibit 3 at 2, Motion for Temporary Restraining Order [etc.], Docket No. 17.
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When an agency finds that justice so requires, it may postpone
the effective date of action taken by it, pending judicial review.
On such conditions as may be required and to the extent
necessary to prevent irreparable injury, the reviewing court . . .
may issue all necessary and appropriate process to postpone the
effective date of an agency action or to preserve status or rights
pending conclusion of the review proceedings.
5 U.S.C. § 705.
“Section 705 allows courts to grant interim relief, but only ‘to postpone the effective
date of an agency action or to preserve status or rights pending conclusion of the review
proceedings.’” Crawford-Hall v. United States, Case No. 2:17-cv-1616-SVW-AFM, 2018
WL 5816117, at *8 (C.D. Cal. May 31, 2018) (quoting 5 U.S.C. § 705). “By its very terms,
Section 705 does not authorize a court to issue a preliminary injunction [or temporary
restraining order] that alters the status quo or dictates specific terms and conditions to an
agency.” Id. Defendants argue that plaintiff is asking the court to dictate specific terms and
conditions to NPS, i.e., rescind the suspension of its Big Game Transport CUA, or in other
words, grant it a Big Game Transport CUA without any conditions or restrictions.
Defendants cite to Salt Pond Associates v. United States Army Corps of Engineers,
815 F. Supp. 766 (D. Del. 1993), in support of this argument. There, the plaintiff was
attempting to “develop a piece of land for resale as waterfront lots[,]” which meant he had
to satisfy a number of environmental wetlands requirements. Id. at 768. The defendants
denied the plaintiff’s application for a section 404 permit for the entirety of the development
project but offered to grant the plaintiff a “conditional” permit for utility crossings (the Loop
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Canal permit), with one of the primary conditions being that the plaintiff fill ten ponds that
had been excavated in the wetlands. Id. at 769-70. The plaintiff argued that the defendants
were “attempting to improperly regulate the excavation of these ponds through some sort of
‘back-door’ approach to the permit application process” and that “any and all conditions
relating to the restoration or filling of the excavated ponds are improper and that the
withholding of the Loop Canal permit pending the restoration of the ponds is an improper
use of the Government’s authority.” Id. at 771. The plaintiff moved for a preliminary
injunction, in which it sought, among other relief “a declaration from th[e c]ourt directing
the Government to issue Salt Pond the necessary Loop Canal permit. . . .” Id.
The court observed that the plaintiff was asking the court to “direct the authorization
of the utility crossings permit subject to the handful of special conditions directly relating to
the Loop Canal crossing” but without any conditions related to pond restoration. Id. at 775.
The defendants argued that Section 705 “establishes by its plain and unambiguous language
that the [c]ourt is without authority to grant this kind of affirmative injunctive relief sought
by the [p]laintiff (i.e., directing that the Government issue a permit imposing certain
conditions).” Id. The court agreed, explaining that
[w]hen viewed in its entirety, the plain language of [Section
705] reveals that the remedial powers granted to a reviewing
court under this section are in fact extremely limited. The first
section of the statute broadly describes when a court is autho-
rized to act under the section (i.e., “On such conditions as may
be required and to the extent necessary to prevent irreparable
injury”) (emphasis added). The second part of the statute
narrowly describes the scope of relief the reviewing court is
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authorized to grant to the petitioning party (“the reviewing court
. . . may issue all necessary and appropriate process to postpone
the effective date of an agency action OR preserve the status or
rights pending conclusion of the review proceedings ”) (empha-
sis added). Thus, the scope of relief available to the [p]laintiff
is limited to (1) a postponement of the agency action or (2) a
preservation of the status or rights of the parties. When the
[c]ourt is determining interim relief, by its very terms, the statute
does not confer jurisdiction onto the [c]ourt to alter the status
quo nor does it allow the [c]ourt in issuing interim relief to
actually dictate specific terms or conditions to a governmental
agency.
Id. at 775-76. The court concluded that “[i]f this [c]ourt were to order that the Government
issue the Loop Canal permit without the pond restoration conditions, the [c]ourt would not
be preserving the status quo or rights of the parties since the Loop Canal permit has never
been approved. Such action is beyond the scope of relief available to the [p]laintiff under
this section.” Id. at 776.
There is one major distinction between this case and Salt Pond, namely that plaintiff
has not sought relief pursuant to Section 705. Rather, plaintiff has moved for a temporary
restraining order to be followed by a preliminary injunction. “It is well established that
courts may issue preliminary injunctions” as an alternative to a stay pursuant to Section 705
“in APA challenges.”31 East Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1120
31“An injunction and a stay have typically been understood to serve different purposes.
The former is a means by which a court tells someone what to do or not to do.” Nken v.
Holder, 556 U.S. 418, 428 (2009). “[A] stay operates upon the judicial proceeding itself.
It does so either by halting or postponing some portion of the proceeding, or by temporarily
divesting an order of enforceability.” Id.
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n.20 (N.D. Cal. 2018). This is, however, a distinction without a difference. “The ‘purpose
of a preliminary injunction is to preserve the status quo ante litem pending a determination
of the action on the merits.’” Boardman v. Pacific Seafood Group, 822 F.3d 1011, 1024 (9th
Cir. 2016) (quoting Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir.2009)).
“‘Status quo ante litem’ refers to ‘the last uncontested status which preceded the pending
controversy.’” Id. (quoting GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1210 (9th
Cir. 2000)). In other words, relief pursuant to Section 705 and Rule 65 is intended to
preserve the status quo.
At the time plaintiff filed its amended complaint, the status quo was that its Big Game
Transport CUA had been granted but then suspended. By asking this court to unsuspend its
Big Game Transport CUA, plaintiff is asking the court to change the status quo. If the court
were to issue a temporary restraining order or a preliminary injunction ordering “NPS to
immediately unsuspend the CUA, and remove conditions 1-4[,]”32 it would be altering the
status quo. “Where, as here, a plaintiff seeks a mandatory preliminary injunction that goes
beyond maintaining the status quo pendente lite, ‘courts should be extremely cautious’ about
issuing a preliminary injunction and should not grant such relief unless the facts and law
clearly favor the plaintiff.” Committee of Cent. American Refugees v. I.N.S., 795 F.2d 1434,
32Plaintiff’s Reply to Opposition to Motion for Temporary Restraining Order at 1,
Docket No. 23.
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1441 (9th Cir. 1986) (quoting Martin v. Int’l Olympic Committee, 740 F.2d 670, 675 (9th
Cir.1984)).
Here, the facts and the law do not clearly favor plaintiff. Plaintiff argues that it is
entitled to preliminary injunctive relief because the June 29, 2021 “decision is arbitrary,
capricious or an abuse of discretion, and will cause irreparable harm to [its] business
reputation. . . .”33 This argument fails on both prongs.
The first prong is basically an argument that plaintiff is likely to succeed on the merits
of his APA claims. But, plaintiff is not likely to succeed on the merits of any of his APA
claims.
As to the general argument that the June 29, 2021 decision was arbitrary and
capricious, the fact that criminal charges against Knaebel remained pending was probably
a sufficient basis for the director to grant but suspend plaintiff’s Big Game Transport CUA.
Policy 700-001 provides that a
CUA may . . . be suspended or restricted when the
Holder/Owner or Employee is under investigation or is charged
for a criminal offense by state or federal authorities if a link
exists between the conduct underlying the offense and the
business activity authorized, regardless of whether the offense
occurred in a unit of the National Park System.[34]
The criminal charges against Knaebel are based on allegations that in the course of flying an
unguided hunter, he landed at a remote airstrip, which interfered with another hunter.
33Id. (emphasis omitted).
34Exhibit 3 at 3, Motion for Temporary Restraining Order [etc.], Docket No. 17.
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Plainly, there is the requisite link between the conduct underlying the criminal charges
against Knaebel on the one hand and plaintiff’s Big Game Transport air taxi operations on
the other to justify a suspension of plaintiff’s Big Game Transport CUA.35 And, as Policy
700-001 provides, it does not matter that the criminal charges against Knaebel stemmed from
conduct in his air taxi operations which took place outside the WRST.36 In short, the June
29, 2021 decision is a reasoned decision based upon facts recited in the decision, supported
by the partial administrative record now before the court.
To the extent that plaintiff is claiming that Policy No. 700-001 was subject to notice
and comment rulemaking, that claim is likely to fail. “The APA requires a notice and
comment procedure for agency ‘rule making.’” Gill v. United States Dep’t of Justice, 913
F.3d 1179, 1185 (9th Cir. 2019) (quoting 5 U.S.C. § 553). “However, ‘interpretive rules,
general statements of policy, or rules of agency organization, procedure, or practice’ are
exempt from the notice and comment requirement.” Id. at 1186 (quoting 5 U.S.C. §
553(b)(3)(A)). Policy No. 700-001 appears to be a valid, general statement of NPS policy
for the exercise of Superintendent Bobowski and Director Mow’s discretion in acting on
CUA applications.
35In addition, complaints lodged with the Park Service by users of WRST dealing with
unsatisfactory interactions between Knaebel and others concerning the operations of
plaintiff’s air taxi service as a Big Game Transport CUA permittee also support the June 29,
2021, decision.
36See Exhibit 3 at 2 (Violation #1), Motion for Temporary Restraining Order [etc.],
Docket No. 17.
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Plaintiff is also not likely to succeed on the merits of his equal protection APA claim.
The court perceives no possible equal protection problem with granting plaintiff a CUA for
air taxi operations within the WRST while, at the same time granting and then suspending
its CUA for Big Game Transport. The court also does not perceive an equal protection
problem with suspending plaintiff’s Big Game Transport CUA for WRST but not suspending
plaintiff’s Big Game Transport CUA for Yukon Charley. “[A] federal policy survives an
equal protection challenge ‘if there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose.’” United States v. Ayala-Bello, 995
F.3d 710, 715 (9th Cir. 2021) (quoting Heller v. Doe by Doe, 509 U.S. 312, 320 (1993)).
NPS appears to have had a rational basis for the distinction it made between plaintiff’s Big
Game Transport CUA and its Air Taxi CUA, namely that Knaebel’s criminal charge was
related to transporting hunters, not other Park users. As for the decision to not suspend
plaintiff’s Big Game Transport CUA for Yukon Charley, Mow explained that this was based
on the fact that “Mr. Knaebel has a significantly cleaner record operating in YUCH than he
does in WRST.”37 This appears to be a rational basis for the difference in treatment as to
plaintiff’s two Big Game Transport CUAs.
Finally, plaintiff has also not shown that it will suffer irreparable harm in the form of
harm to its reputation. “Irreparable harm encompasses harm to a company’s goodwill,
37June 29, 2021 Decision at 10, Exhibit 2 at 12, Motion for Temporary Restraining
Order [etc.], Docket No. 17.
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reputation, loss of client relationships, and financial damage.” Pacific Kidney & Hyperten-
sion, LLC v. Kassakian, 156 F. Supp. 3d 1219, 1228 (D. Or. 2016) (quotation marks
omitted). Knaebel avers that the denial of plaintiff’s Big Game Transport CUA will result
in irreparable harm to his “reputation . . . as a safe and reliable pilot and an outstanding
business owner with high customer satisfaction. . . .”38 However, plaintiff has not “presented
[any] evidence[,]” other than Knaebel’s affidavit, that it will likely suffer harm to its
goodwill or reputation in the absence of temporary injunctive relief.” Id. Plaintiff offers
letters39 from some of its clients who have booked air taxi services for the 2021 hunting
season, but none of the clients state that they will not use plaintiff’s services in the future if
their trips for 2021 have to be cancelled. Thus, the alleged harm to plaintiff’s business
reputation may not be irreparable.
There is also some suggestion in plaintiff’s briefing that it is relying on harm to the
31 hunters who have booked services with plaintiff. Plaintiff states that if it is not granted
a Big Game Transport CUA, “these 31 hunters will be deprived of their ability to hunt and
feed their families wild foods.”40 However, “[p]laintiff provides no authority under which
the [c]ourt may consider irreparable harm to third parties in lieu of or in addition to
38Knaebel Affidavit at 1, ¶ 3, Exhibit 1 at 1, Motion for Temporary Restraining Order
[etc.], Docket No. 17.
39Exhibit 1, Plaintiff’s Reply to Opposition to Motion for Temporary Restraining
Order, Docket No. 23.
40Motion for Temporary Restraining Order at 9, Docket No. 17.
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irreparable harm to [p]laintiff.” Nutrition Distribution, LLC v. Enhanced Athlete, Inc., Case
No. 2:17-cv-2069-JAM-CKD, 2017 WL 5467252, at *2 (E.D. Cal. Nov. 14, 2017).
Conclusion
Plaintiff’s motion for a temporary restraining order to be followed by a preliminary
injunction is denied.
The court is amenable to deciding this case on the merits on an expedited briefing
schedule and extant administrative record if the parties would so agree.
DATED at Anchorage, Alaska, this 30th day of July, 2021.
/s/ H. Russel Holland
United States District Judge
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