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State v. Jewell

United States District Court, D. Alaska

July 29, 2014

STATE OF ALASKA and ALASKA PROFESSIONAL HUNTERS ASSOCIATION, Plaintiffs,
v.
SALLY JEWELL, in her official capacity as the United States Secretary of the Interior; DANIEL ASHE, in his official capacity as Director of the U.S. Fish and Wildlife Service; THE U.S. FISH AND WILDLIFE SERVICE; and THE UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants.

ORDER GRANTING MOTION TO DISMISS

SHARON L. GLEASON, District Judge.

Before the Court at Docket 29 is a Motion to Dismiss filed by Defendants. The motion seeks dismissal of this action under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiffs opposed at Docket 33, and Defendants replied at Docket 40.[1] The Court heard oral argument on the motion in Fairbanks, Alaska on July 9, 2014.[2] Having considered the arguments of the parties, the documents filed with the Court, and the applicable law, the Court will grant Defendants' motion and dismiss this action as moot.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts material to the Court's decision are drawn from the Amended Complaint and the documents submitted by the parties with their briefing on the Motion to Dismiss. These facts do not appear to be in dispute.[3]

On October 1, 2013-the first day of fiscal year 2014-Congress had yet to enact an appropriations bill for the fiscal year, so the United States government entered into a shutdown.[4] On October 4, 2013, USFWS Director Daniel Ashe issued a "National Wildlife Refuge System Closure Determination and Notice, " which stated in part:

Pursuant to 50 C.F.R. §§ 25.21(e) and 36.42, as of October 1, 2013, all units of the National Wildlife Refuge System nationwide are closed to public visitation and use, subject to the conditions and exceptions described below. This national closure determination and notice is necessitated by a lapse in funds appropriated by the United States Congress for the operation of the National Wildlife Refuge System and will remain in effect until funding is restored.[5]

The Closure Notice also provided that it would "expire automatically at the end of the shutdown period[, ] except that the provisions applicable to Alaska will expire no later than October 31, 2013."[6]

On October 9, 2013, an Alaska Department of Fish and Game ("ADF&G") official sent an email to a USFWS official asking whether the Closure Notice prohibited ADF&G staff from entering national wildlife refuges "to conduct routine research and management activities."[7] The next day, the USFWS official responded that USFWS was "not able to allow State management activities on national wildlife refuge lands during the government shutdown."[8]

On the morning of October 16, 2013, the State of Alaska filed this lawsuit for declaratory and injunctive relief.[9] At that same time, the State filed a Motion for a Temporary Restraining Order and Preliminary Injunction, seeking an order prohibiting Defendants from closing all national wildlife refuges in Alaska during the pendency of the lawsuit.[10] A few hours after the State filed its Complaint, USFWS issued a "Clarification" that provided that the Closure Notice "does not apply to fish and wildlife research activities conducted by [ADF&G] on national wildlife refuges in Alaska."[11]

The next day, Congress enacted the Continuing Appropriations Act, which restored funding to all federal agencies.[12] All national wildlife refuges were reopened at that time.[13] That same day, the State filed a notice withdrawing its Motion for a Temporary Restraining Order and Preliminary Injunction, but indicating the State would "continue to seek declaratory relief and a permanent injunction as set forth in its complaint."[14]

On December 27, 2013, the State filed an Amended Complaint, which added the Alaska Professional Hunters Association ("APHA") as a Plaintiff.[15] The Amended Complaint alleges the State and APHA were harmed by the October 2013 refuge closure. Specifically, it alleges the closure "infringe[d] on the State's ability to access [refuge] lands as guaranteed under [the Alaska National Interest Lands Conservation Act ("ANILCA")] and interfere[d] with the State's authority and ability to manage and conserve the fish and wildlife."[16] The Amended Complaint also alleges the closure "barred APHA members from all means of access to the refuges to utilize their US[F]WS guiding permits, " resulting in lost income.[17]

The Amended Complaint asserts the closure violated the following laws:

• Section 1110(a) of ANILCA and the regulation implementing that statute (43 C.F.R. § 36.11(h)), which permit certain modes of transport to be used in national wildlife refuges in Alaska and require notice and a hearing before these modes of transport may be temporarily or permanently prohibited;
• 50 C.F.R. § 36.41(h), which explains when a permit for economic and/or other privileged uses on national wildlife refuges in Alaska may be ...

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