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Ninilchik Traditional Council v. Towarak

United States District Court, D. Alaska

April 17, 2016

Ninilchik Traditional Council, Plaintiff,
Tim Towarak, et al., Defendants.




At docket 10 defendants Tim Towarak, Sally Jewell, and Tom Vilsack (“Defendants”) move to dismiss the complaint of plaintiff Ninilchik Traditional Council (“NTC”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). NTC opposes at docket 21; Defendants reply at docket 32.

At docket 20 the court granted Defendants’ motion for judicial notice of the nine exhibits they attached to their motion to dismiss (Exhibits A-I); at docket 37 the court granted NTC’s motion for judicial notice of Exhibits 1-7 and 9 to NTC’s opposition but declined to take judicial notice of Exhibit 8; and at docket 35 the court granted NTC leave to file a surresponse, which NTC filed at docket 36.

Oral argument was heard on April 14, 2016.


In 1980 Congress passed Title VIII of the Alaska National Interest Lands Conservation Act (“ANILCA”)[1] “to protect the subsistence way of life in the face of Alaska’s growing population and the resultant pressure on fish and wildlife populations.”[2] “Congress’ aim in passing ANILCA was to ensure a way of life ‘essential to Native physical, economic, traditional, and cultural existence and to non-Native physical, economic, traditional, and social existence.’”[3] Among other things, Section 804 of ANILCA provides that on public lands the taking of fish for “nonwasteful subsistence uses shall be accorded priority” over the taking of fish for other purposes.[4]

To advance ANILCA’s directives, Congress authorized the Secretary of the Interior and the Secretary of Agriculture to promulgate regulations.[5] One of these regulations established a Federal Subsistence Board (“Board”), [6] which is charged with administering “the federal subsistence program at the heart of Title VIII.”[7] The Board’s powers include the power to issue “regulations for the management of subsistence taking and uses of fish and wildlife on public lands”[8] and to take emergency action to close public lands for the taking of fish or to modify the requirements for subsistence and/or non-subsistence take.[9] In 2002 the Board delegated its authority over in-season management of the federal subsistence fishery in the Kenai National Wildlife Refuge to the U.S. Fish and Wildlife Service, Kenai Fishery Resources Office.[10]

The three defendants in this action are the Secretary of Interior, the Secretary of Agriculture, and the Board’s Chairman. The plaintiff is NTC, the governing body of Ninilchik Village, [11] a federally-recognized Indian tribe[12] whose members have a customary and traditional use of all fish in the Kasilof and Kenai River drainages.[13]Although Ninilchik Village members share “in an annual subsistence allocation of salmon from three federal fisheries on the Kenai River, ”[14] they allege that they have “been unable to harvest this subsistence salmon allocation” due to “restrictive federal subsistence regulations limiting methods and means of harvest, and restrictive and arbitrary federal in-season subsistence management actions.”[15]

In March 2014 NTC submitted two proposed regulations that would authorize residents of Ninilchik to operate two community subsistence gillnets: one in the Kenai River and the other in the Kasilof River.[16] The Southcentral Regional Advisory Council, which is a regional advisory council established under Section 805 of ANILCA to provide opinions and recommendations to the Board on subsistence matters, [17]considered NTC’s two gillnet fishery proposals and recommended that the Board adopt both.[18] The Board voted to adopt NTC’s proposals[19] and, after a five-month notice and comment period, promulgated final regulations authorizing the two gillnet fisheries.[20]

Under these regulations a Kasilof River gillnet would be allowed between July 1 and 31 and a Kenai River gillnet would be allowed between June 15 and August 15 for the harvest of Sockeye, Chinook, Coho, and Pink salmon, unless fishing is closed by “Federal Special Action.”[21] One permit for each net would be awarded by the federal in-season fishery manager based on the submission of a written operational plan.[22]During all relevant times, that in-season fishery manager was Jeffry Anderson (“Anderson”).[23]

On May 27, 2015, NTC submitted to Anderson an operational plan for the Kenai and Kasilof gillnet fisheries.[24] Before deciding either submission, Anderson issued an emergency special action closing the federal subsistence fishery from June 18 until August 15 for early-run Chinook salmon in all federal public waters in the Kenai River downstream of Skilak Lake.[25]

On July 13, “less than a month before the closure of the 2015 federal subsistence fishing season, ” Anderson approved NTC’s operational plan for the Kasilof River gillnet and issued a permit to NTC.[26] But Anderson still did not act on NTC’s request for a Kenai River gillnet permit.[27] In a July 16 letter Anderson explained that he did not anticipate approving a Kenai River permit for the 2015 fishing season “because of the urgent need to protect early-run Chinook [s]almon.”[28]

In late July NTC wrote two letters to the Board seeking relief from Anderson’s emergency closure and failure to issue the Kenai permit.[29] Specifically, NTC asked the Board to (1) overturn Anderson’s emergency closure;[30] (2) negate his refusal to authorize an operational plan for a Kenai gillnet fishery for the 2015 fishing season;[31](3) rescind his authority over Cook Inlet Area subsistence fishing;[32] and (4) remove language in the Kenai River regulation that empowers Anderson to block the issuance of a gillnet permit.[33] The Board convened on July 28 and considered NTC’s requests.[34] After hearing testimony from Anderson in support of his actions[35] and from NTC in opposition, [36] the Board voted not to grant NTC any of the relief it had requested.[37]

NTC’s two-count complaint, filed in October 2015, alleges that Defendants’ actions violate Section 804 of ANILCA and the Administrative Procedure Act (“APA”)[38]in relation to three events: (1) the Board’s 2002 delegation of authority to the in-season manager; (2) Anderson’s 2015 subsistence fishery closure; and (3) Defendants’ implementation of the Kenai river gillnet fishery regulation.

A. NTC’s Seven ANILCA Claims

With regard to the 2002 delegation, NTC alleges that Defendants violated ANILCA by delegating in-season management authority without any substantive standards (claim one)[39] and then “failed to exercise any independent oversight” over the in-season manager’s actions (claim two).[40]

With regard to the 2015 closure, NTC alleges that Defendants violated ANILCA by allowing Anderson to close the subsistence fishery and keep it closed for the entire fishing season (claim three).[41]

With regard to the Kenai gillnet fishery, NTC alleges that Defendants violated ANILCA when the Board delegated authority to Anderson to “develop an operational plan” for the Kenai gillnet fishery without “any standards or oversight” (claim four), [42] when Anderson failed to decide NTC’s gillnet permit application (claim five), [43] and when the Board then refused to revoke Anderson’s authority over the Kenai gillnet fishery (claim six).[44]

Finally, NTC alleges generally that the Board violated ANILCA by failing to “take corrective action” to prevent Anderson’s “continued arbitrary and capricious action[s]” and to “ensure implementation” of the Kenai gillnet fishery (claim seven).[45]

B. NTC’s Four APA Claims

NTC’s APA claims allege that: (1) “Defendants’ actions and failure to act regarding [Anderson’s 2015] closure of the Kenai River federal subsistence fishery” was “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with 5 U.S.C. § 706(2)(A);”[46] (2) Anderson’s “failure to develop an operation plan and issue a permit for” the Kenai gillnet was “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with 5 U.S.C. § 706(2)(A);”[47] (3) the Board “illegally and arbitrarily ignored its own record and acted in such a way as to prevent implantation of its own regulation;”[48] and (4) the Board failed to “prescribe standards and a process for the in-season fishery management actions that are consistent with the requirements of the APA.”[49]


A. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction. In order to survive a defendant’s motion to dismiss, the plaintiff has the burden of proving jurisdiction.[50]

“Rule 12(b)(1) jurisdictional attacks can be either facial or factual.”[51] Where the defendant brings a facial attack on the subject matter of the district court, the court assumes the factual allegations in the plaintiff’s complaint are true and draws all reasonable inferences in the plaintiff’s favor.[52] The court does not, however, accept the truth of legal conclusions cast in the form of factual allegations.[53]

“With a factual Rule 12(b)(1) attack, however, a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment. It also need not presume the truthfulness of the plaintiffs’ allegations.”[54]

B. Rule 12(b)(6)

Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s claims. In reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party.”[55] To be assumed true, the allegations, “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”[56] Dismissal for failure to state a claim can be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”[57] “Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss.”[58]

To avoid dismissal, a plaintiff must plead facts sufficient to “‘state a claim to relief that is plausible on its face.’”[59] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[60] “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”[61] “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”[62] “In sum, for a complaint to ...

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