The United States of America v. The State of Alaska et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
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.
Case No. 1:22-cv-00054-SLG
ORDER REGARDING PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION
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
1 The case caption has been amended to include Intervenor-Plaintiff. See Docket 29 (Order
Regarding Kuskokwim River Inter-Tribal Fish Commission’s Motion to Intervene).
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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.
I. 	Background
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
2 As the Court indicated at oral argument, it will not consolidate a ruling on the instant motion for
preliminary injunction with a determination of the case on its merits.
3 Docket 5 at 2.
4 Docket 6 at 2–3.
5 Docket 11 at 2–11. The Court denied the Motion for Temporary Restraining Order because
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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
II. 	Legal Standard
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
Plaintiff had not made a showing that irreparable harm would occur in the short time before the
Court determined whether a preliminary injunction should issue.
6 Docket 29.
7 Docket 14 at 2.
8 Following Winter, the Ninth Circuit addressed the first element—the likelihood of success on
the merits—and held that the Circuit’s “serious questions” approach to preliminary injunctions
was still valid “when applied as a part of the four-element Winter test.” All. for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131–35 (9th Cir. 2011). 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.’” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)). “Serious
questions are ‘substantial, difficult, and doubtful, as to make them a fair ground for litigation and
thus for more deliberative investigation.’” Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.
1991) (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)).
They “need not promise a certainty of success, nor even present a probability of success, but
must involve a ‘fair chance on the merits.’” Id. (quoting Marcos, 862 F.2d at 1362). All of the
Winter elements must still be satisfied under this approach for injunctive relief to issue.
9 555 U.S. 7, 20 (2008). When the government is a party to the action, such as here, “the
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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
III. 	Discussion
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.
A. Plaintiff has shown a likelihood of success on the merits.
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
balance of equities factor and the public interest factor merge.” Jones v. Bonta, 34 F.4th 704,
713 (9th Cir. 2022) (citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
2014)).
10 See All. for the Wild Rockies, 632 F.3d at 1135.
11 United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987).
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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 “not only contemplates, but also prescribes that outcome of ‘a clash of
lifestyles and a dispute over who gets to fish. Congress, using clear language, has
resolved this dispute in favor of [federally qualified users] . . . by giving them
priority’” in waters located within federal lands.16
12 16 U.S.C. § 3112(2).
13 Docket 5 at 12 (citing U.S. Const. art. VI, cl. 2).
14 Docket 5 at 13.
15 Docket 5 at 13–14.
16 Docket 5 at 14 (quoting Kenaitze Indian Tribe v. State of Alaska, 860 F.2d 312, 318 (9th Cir.
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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
1988)). In Kenaitze Indian Tribe, the Ninth Circuit stated that ANILCA gives priority to rural
subsistence users in “federal waters.” 860 F.2d at 313, 318. In Sturgeon v. Frost, 139 S. Ct.
1066, 1080 n.2 (2019), the Supreme Court did “not disturb the Ninth Circuit’s holdings that the
Park Service may regulate subsistence fishing on navigable waters.” (Citing Alaska v. Babbitt,
72 F.3d 698 (1995); John v. United States, 247 F.3d 1032 (2001) (en banc); and John v. United
States, 720 F.3d 1214 (2013)).
17 Docket 17 at 12–19 (citing U.S. Const. art. II, § 2, cl. 2). According to Defendants, “the Board
surely ‘exercises significant authority pursuant to the laws of the United States’—the secretaries
have assigned to it the responsibility for implementing the rural subsistence priority, which is the
primary focus of an entire title of an important federal statute.” Docket 17 at 14 (footnote
omitted).
18 Docket 17 at 12–19; see U.S. Const. art. II, § 2, cl. 2 (“The President . . . shall nominate, and
by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and which shall be established by
Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”).
19 Docket 17 at 19–23; see U.S. Const. art. II, § 2, cl. 2.
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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
20 Specifically, Defendants contend that, in issuing the emergency orders, “the Refuge Manager
has relied on factors which Congress has not intended him to consider by participating in a co-
management relationship with [the Commission] that is not authorized by ANILCA or by the
FSB’s delegation of authority.” Docket 17 at 23.
21 Docket 17 at 23–34. Defendants specifically contend that the Refuge Manager’s “order does
not contain any analyses explaining why the action was necessary or appropriate. . . . [T]he
order fails to explain how restricting the fishery to federally qualified users only, then providing
significant opportunity to take fish from the purportedly depleted stock, is ‘necessary for the
conservation of healthy populations of fish or wildlife,’ a justification required by the Board’s own
regulations.” Docket 17 at 31 (citing 50 C.F.R. § 100.10(d)(4)(vi)).
22 Docket 21 at 4.
23 Docket 21 at 5.
24 Docket 21 at 6. Specifically, Plaintiff contends that Defendants could have raised their
Appointments Clause claims in Dep’t Fish & Game v. Fed. Subsistence Board, __ F. Supp. 3d
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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
__, Case No. 3:20-cv-00195-SLG, 2021 WL 5756381 (D. Alaska Dec. 3, 2021), a case in which
the State of Alaska and ADF&G “challenged the authority of the FSB in a context where it could
have presented the same claims.” Docket 21 at 6.
25 Docket 21 at 7.
26 Docket 24 at 2.
27 Docket 5 at 17.
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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
B. Plaintiff and Intervenor-Plaintiff have shown that irreparable harm
is likely to occur before the Court determines the case on its merits.
Plaintiff and Intervenor-Plaintiff contend that irreparable harm will occur in
three ways, each of which Defendants dispute.
1. Irreparable harm to ANILCA’s rural subsistence user priority.
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
28 Docket 17 at 11.
29 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014).
30 Docket 1-1 at 12; see Gov’t of Guam v. Guerrero, 11 F.4th 1052, 1058 (9th Cir. 2021) (“We
have held that a public actor is entitled to the presumption of regularity where there is some
evidence that the public actor properly discharged the relevant official duties, which an opposing
party must rebut with clear, affirmative evidence to the contrary.”).
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provide for federally qualified subsistence use constitutes irreparable injury to
affected rural Alaskans.”31
Intervenor-Plaintiff 	similarly 	contends 	that 	Defendants’ 	“actions 	directly
impact the Commission’s co-management authority and interfere with its ability to
carry out its responsibilities under the [Memorandum of Understanding]. 	This in
itself constitutes an irreparable harm, as it directly threatens the sovereignty of the
Commission’s Member Tribes . . . .”32
Defendants respond that “ANILCA’s rural subsistence use priority does not
allow—much 	less 	require—the 	closure 	or 	restriction 	of 	fisheries 	in 	times 	of
abundance when there is enough fish for everyone.”33 	According to Defendants,
Plaintiff has not shown that the State’s fishing openers will result in the harvest of
salmon, and thus ANILCA’s rural subsistence use priority cannot be threatened by
the State openers.34 	Defendants also respond that the State’s openers help, not
harm, the subsistence values and cultural identity of federally qualified subsistence
users because “the involvement of . . . non-federally qualified users provides vital
assistance for rural residents” who are federally qualified subsistence users.35 As
31 Docket 5 at 18.
32 Docket 14 at 3 (footnote omitted).
33 Docket 17 at 35.
34 Docket 17 at 35–36.
35 Docket 17 at 37–38.
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to Intervenor-Plaintiff, Defendants again point to alleged APA violations and also
assert 	that 	Intervenor-Plaintiff 	has 	not 	presented 	evidence 	as 	to 	how 	tribal
sovereignty is threatened by the State’s actions.36
The 	Court 	finds 	that 	Plaintiff 	and 	Intervenor-Plaintiff 	have 	shown 	that
irreparable harm will occur to the enforcement of ANILCA’s rural subsistence user
priority if the State’s emergency order is not enjoined. 	Plaintiff and Intervenor-
Plaintiff have shown “that enforcement of the [State’s emergency order] in fact
conflicts with federal . . . law and its objectives.”37 Promulgating a State emergency
order 	that 	contradicts 	ANILCA’s 	rural 	subsistence 	use 	priority 	violates 	the
Supremacy Clause, and “an alleged constitutional infringement will often alone
constitute irreparable harm”38 even when the constitutional injury is structural, such
as a Supremacy Clause violation.39 	Here, irreparable harm would necessarily
result from the enforcement of a State emergency order that is likely preempted
and in violation of the Supremacy Clause.
36 Docket 30 at 2–3.
37 Arizona v. United States, 567 U.S. 387, 416 (2012).
38 United States v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011) (quoting Associated Gen.
Contractors v. Coal. for Econ. Equity, 950 F.3d 1401, 1412 (9th Cir. 1991)), rev'd in part on other
grounds, 567 U.S. 387 (2012); accord Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d
865, 882 (9th Cir. 2008) (“Unlike monetary injuries, constitutional violations cannot be
adequately remedied through damages and therefore generally constitute irreparable harm.”),
rev'd on other grounds, 562 U.S. 134 (2011).
39 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058 (9th Cir. 2009).
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2. Uncertainty as to the legality of conflicting emergency orders will
cause irreparable harm to federally qualified users.
Plaintiff 	next 	asserts 	that 	federally 	qualified 	users 	will 	be 	harmed 	by
“uncertainty and confusion” if the State openers are not immediately enjoined.40
According to Plaintiff, “Kuskokwim rural residents face the dilemma of coming
closer to their historical subsistence harvest of salmon by capitalizing on the
possibility of additional harvest under the State’s openings, while facing possible
enforcement action or other consequences of being found in violation of federal
orders prohibiting such harvest.”41 	Plaintiff also contends that the State’s 2022
emergency orders “create a practical risk that large numbers of Alaskans will arrive
at 	the 	State-appointed 	times 	to 	set 	gillnets 	on 	the 	Kuskokwim, 	resulting 	in
unpredictable and extensive harvest of the depleted fisheries.”42
Intervenor-Plaintiff has submitted considerable evidence that demonstrates
how Defendants’ emergency order has “sowed confusion.”43 	Intervenor-Plaintiff
points to the 2021 fishing season, when similar conflicting federal and state orders
40 Docket 5 at 18.
41 Docket 5 at 19. The Court’s Order Denying Plaintiff’s Motion for Temporary Restraining Order
acknowledged the confusion created by conflicting emergency orders but concluded that in the
short time prior to the Court’s determination of the preliminary injunction motion, that short-term
confusion did not warrant a temporary restraining order. Rather, the Court determined “that the
competing perspectives of the United States and the State of Alaska warrant the careful
consideration by this Court that can only occur after full briefing on the preliminary injunction
motion has been accorded to both parties.” Docket 11 at 14.
42 Docket 5 at 18–19.
43 Docket 14 at 3.
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were promulgated. 	The 2021 orders “caused widespread confusion for federally
qualified subsistence fishers” who both needed to harvest salmon for subsistence
but also worried about fishing illegally.44
Defendants respond 	that Plaintiff “has 	not presented any 	evidence to
support [the] claim [that confusion and uncertainty will occur], much less that any
harm resulted, even though . . . the same situation prevailed on the River” in
summer 	2021.45 	Defendants 	respond 	to 	Intervenor-Plaintiff’s 	evidence 	of
confusion by construing the 220 boats that were observed fishing on June 28,
2021, as evidence “that local residents ignored the Commission’s message[,] . . .
not evidence that they were confused.”46
The Court finds that there is an irreparable harm to federally qualified
subsistence 	users 	caused 	by 	the 	conflicting terms 	of the 	federal 	and 	state
emergency orders, which may dissuade a federally qualified user from legal fishing
opportunities or may cause a non-federally qualified user to harvest fish in violation
44 Docket 14 at 8 (quoting Docket 14-1 at 6, ¶ 12 (Decl. of Mike Williams, Sr.)). Mike Williams,
Sr., the Chairman of the Commission, has averred that the language in the State’s emergency
order was confusing, “especially for rural subsistence fishers who may speak English as a
second language.” Docket 14-1 at 6, ¶ 12 (Decl. of Mike Williams, Sr.). Intervenor-Plaintiff
maintains that it “received numerous phone calls from users who were confused by the State’s
announcement of a purported opening, and the Commission was forced to undertake significant
outreach efforts . . . in an attempt to clarify the confusion. Docket 14 at 8. Outreach efforts
included “the Commission’s webpage and email newsletter, social media posting, radio talk
show announcements, and extensive word-of-mouth communications. Docket 14-1 at 7, ¶14
(Decl. of Mike Williams, Sr.).
45 Docket 17 at 39.
46 Docket 30 at 5.
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of federal law. 	Once confusion has prevented a federally qualified subsistence
user from fishing—and thus working toward harvesting subsistence goals—or has
prompted a non-federally qualified user to harvest salmon in violation of federal
closures, neither the Court nor the parties can go back in time to remedy the harm
financially. As emphasized by Intervenor-Plaintiff at oral argument, it is irrelevant
whether the confusion causes one salmon or 10,000 salmon to be harvested by a
non-federally qualified user, because “[y]ou can’t give a fish back to the federally
qualified users that was taken by a non-federally qualified user. 	We're not going
to somehow compensate or be able to compensate the members of the federally
recognized tribes along this portion of the [Kuskokwim River].”47
3. Kuskokwim River salmon populations.
Third, Plaintiff asserts that irreparable harm will occur because “Kuskokwim
Chinook 	and 	chum 	salmon 	populations 	are 	in 	decline, 	and 	face 	risk 	of
overharvest.”48 	According to Plaintiff, the environmental injury to the Kuskokwim
Chinook and chum salmon alone is a sufficient basis for a preliminary injunction.49
Intervenor-Plaintiff agrees that Defendants’ actions “detrimentally impacted
the Chinook and chum populations on which tribal members and other rural
47 Docket 34 at 4–5.
48 Docket 5 at 20; accord Docket 5 at 17–18 (citing “threats to declining fisheries resources”).
49 Docket 5 at 19.
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residents depend for their subsistence.”50 Intervenor-Plaintiff points to a single day
during the 2021 season—June 28—when the State announced an opening despite
the federal closure and “at least 220 boats fished and harvested salmon within the
Refuge in reliance on the State’s announced opening.”51 According to Intervenor-
Plaintiff, “the events of last summer show that it is highly likely that users will rely
on the State-announced openings and will harvest salmon in contravention of the
federal closure. 	That is sufficient for preliminary injunction purposes . . . .”52
Intervenor-Plaintiff also emphasizes that even a small amount of harvest by non-
federally qualified users would cause irreparable harm: “Against the backdrop of
the ‘food security crisis’ happening on the Kuskokwim, each additional salmon
taken by non-federally qualified users directly threatens the ability of families along
the Kuskokwim” to meet their subsistence needs.53
50 Docket 14 at 3–4.
51 Docket 14 at 4; accord Docket 14-1 at 5, ¶ 10 (Decl. of Mike Williams, Sr.). Intervenor-Plaintiff
contends that “no data exists regarding exactly how many Chinook and chum salmon were
harvested within Refuge waters during the unlawful [State] opening” because ADF&G does not
measure harvest numbers “despite being statutorily required to do so.” Docket 14 at 4–5 (citing
Alaska Stat. § 16.05.330(c)). 	Defendant responds that it is the Board of Fisheries’ responsibility
to comply with the cited Alaska statute, not the responsibility of ADF&G. Docket 30 at 4.
52 Docket 14 at 5.
53 Docket 14 at 7 (footnote omitted) (citing Native Village of Quinhagak v. United States, 35 F.3d
388 (9th Cir. 1994)); see Native Village of Quinhagak, 35 F.3d at 394 (holding that the plaintiff
“needed to prove nothing more” than that the disputed waterway was a source of subsistence
fishing and that the contested regulations interfered with their way of life and culture “in light of
the clear congressional directive to protect the cultural aspects of subsistence living”).
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Defendants respond that Plaintiff and Intervenor-Plaintiff have presented
insufficient evidence to demonstrate “that the State’s actions in allowing limited
openers on the Kuskokwim River will have a negative effect on the sustainability
of the Chinook or chum runs.”54 	Defendants point to Plaintiff’s own actions of
announcing “two drift[net] openers for June, with larger gear that more easily
targets Chinook and purposefully removes salmon . . . from the allegedly critically
depressed stock” as evidence that the State’s “limited non-salmon openers” will
not cause irreparable harm to the Kuskokwim River salmon runs.55
The Court acknowledges the parties’ conflicting positions regarding whether
there will be irreparable harm to the Kuskokwim River salmon populations if the
State’s emergency order remains in effect. However, because the Court finds that
Plaintiff 	and 	Intervenor-Plaintiff 	have 	shown 	irreparable 	harm 	to 	the 	federal
government’s ability to enforce ANILCA’s rural subsistence priority and irreparable
harm to federally qualified subsistence users, it need not determine whether there
would be irreparable harm to the salmon populations during the duration of this
case if the State’s emergency order remained in effect.
54 Docket 17 at 35; see also Docket 30 at 3.
55 Docket 17 at 36.
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Case No. 1:22-cv-00054-SLG, United States, et al. v. State of Alaska, et al.
Order Re Plaintiff’s Motion for Preliminary Injunction
Page 17 of 19
C. Plaintiff has shown that the balance of equities tips in its favor, and
a preliminary injunction is in the public interest.
Plaintiff submits that a preliminary injunction barring implementation of
Defendants’ 	emergency 	order 	would 	support 	Congress’s 	“determination 	of
equities—that 	on 	public 	lands, 	conservation 	and 	subsistence 	uses 	by 	rural
Alaskans be given priority over other consumptive uses.”56 	Plaintiff maintains that
the Alaska Constitution cannot “authorize any state official to contravene a national
policy expressed through a federal statute.”57
Defendants respond that Plaintiff’s position “assumes the outcome of the
litigation—in effect, merging not just the equities and public interest, but also the
probability of success on the merits.”58 	According to Defendants, it they are
“correct that the Board lacks jurisdiction, or was invalidly appointed, or invalidly
delegated its authority, or that the Refuge Manager’s orders are arbitrary and
capricious, the national policy expressed in ANILCA has not been contravened and
neither the equities nor the public interest support an injunction.”59
56 Docket 5 at 21.
57 Docket 5 at 21.
58 Docket 17 at 40. Defendants also contend that “because both the plaintiff and the defendant
in this action are ‘governments,’ the rule [that the balance of equities factor and the public
interest factor merge] is not especially helpful here.” Docket 17 at 40.
59 Docket 17 at 40–41.
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Case No. 1:22-cv-00054-SLG, United States, et al. v. State of Alaska, et al.
Order Re Plaintiff’s Motion for Preliminary Injunction
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Plaintiff replies by reasserting that “[a]llowing a state to enforce a state law
in violation of the 	Supremacy Clause 	is neither equitable 	nor in the public
interest.”60
Plaintiff and Intervenor-Plaintiff have met their burden of establishing that
the balance of equities tips in their favor and that a preliminary injunction is in the
public interest. 	Plaintiff is correct that the Ninth Circuit has held that allowing a
state to 	enforce a 	regulation that violates a federal 	rule 	in violation of the
Supremacy Clause is neither equitable nor in the public interest.61 Moreover, if the
State 	emergency 	order—for 	which 	the 	Court 	has 	found 	a 	likelihood 	of
preemption—is in effect, the State’s fishing openers would interfere with ANILCA’s
stated policy of prioritizing rural subsistence uses and would likely cause confusion
to 	both 	federally 	qualified 	subsistence 	users 	and 	non-federally 	qualified
subsistence users. 	The issuance of a preliminary injunction will allow Plaintiff to
pursue federal priorities, which is inherently in the public interest, until a final
decision on the merits is reached in this case.
CONCLUSION
In 	light 	of 	the 	foregoing, 	IT 	IS 	ORDERED 	that 	Plaintiff’s 	Motion 	for
Preliminary 	Injunction 	at 	Docket 	5 	is 	GRANTED. 	Defendants 	are 	hereby
60 Docket 21 at 16 (quoting United States v. Arizona, 703 F. Supp. 2d 980, 1007 (D. Ariz. 2010)).
61 Cal. Pharmacists Ass’n v. Maxwell–Jolly, 563 F.3d 847, 852–53 (9th Cir. 2009); Am. Trucking
Ass’ns, 559 F.3d at 1059–60.
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Case No. 1:22-cv-00054-SLG, United States, et al. v. State of Alaska, et al.
Order Re Plaintiff’s Motion for Preliminary Injunction
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ENJOINED, pending a final ruling by this Court, from implementing ADF&G
Emergency Order #3-S-WR-02-22 and are further ENJOINED from taking similar
actions that authorize gillnet fishing by all Alaskans on the Kuskokwim River within
the Yukon Delta National Wildlife Refuge when such action(s) would be contrary
to federal orders issued pursuant to Title VIII of the ANILCA.
DATED this 23rd day of June, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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