Ninilchik Traditional Council v. Towarak

          ORDER AND OPINION [RE: MOTION AT DOCKET 51]

          JOHN W. SEDWICK, SENIOR JUDGE

         I. MOTION PRESENTED

         At docket 51 plaintiff Ninilchik Traditional Council (“NTC”) moves for a preliminary injunction to enforce its rights under the Alaska National Interest Lands Conservation Act (“ANILCA”) and, derivatively, a federal regulation that provides that “[r]esidents of Ninilchik may harvest Sockeye, Chinook, Coho, and Pink salmon with a gillnet in the [f]ederal public waters of the Kenai River.”^[1] That regulation provides that a permit to operate the Kenai River gillnet must be “awarded by the [f]ederal in-season fishery manager . . . based on the merits of the operational plan.”^[2] Although the regulation became effective in May 2015 and provided Ninilchik residents with an opportunity to operate the gillnet in the Kenai River beginning on June 15, 2015, the U.S. Fish and Wildlife Service (“FWS”) in-season fishery manager, Jeffry Anderson (“Anderson”), has still not issued a gillnet permit to the Ninilchik residents.

         NTC’s preliminary injunction motion seeks an order requiring Anderson to grant its application for a Kenai River gillnet permit. Defendants Tim Towarak, Sally Jewell, and Tom Vilsack (“Defendants”) oppose the motion at docket 58. NTC replies at docket 70. Oral argument was heard on July 22, 2016.

         II. BACKGROUND

         The court has described the background giving rise to this litigation in detail in the order at docket 40. It need not be repeated here. T he following is a summary of NTC’s efforts to obtain a Kenai River gillnet permit since the order at docket 40 was issued.

         On April 28, 2016, NTC, Anderson, the BIA Office of Subsistence Management, and the Southcentral Regional Advisory Council met to discuss NTC’s operational plan.^[3] Anderson later told NTC that he wanted their operational plan to address “[w]hen, where, and how a gillnet will be fished on the Kenai River” (1) “that will avoid fishing the net on important spawning areas for Chinook, Sockeye, or Coho [S]almon”; (2) “within the current [f]ederal regulatory framework that does not allow harvest of early-run Chinook Salmon except through use of rod and reel, and requires release of Rainbow Trout and Dolly Varden greater than 18 inches”; (3) “consistent with Federal regulations which adopt by reference regulations in Alaska code for the Kenai River Special Management Area, including motorboat and horsepower restrictions, seasonal riverbank closures, anchoring prohibitions and other regulations”; and (4) that avoids “conflicts with other river users and avoid[s] creating a navigation or public safety hazard.”^[4] These are the same or similar concerns to those that FWS raised to the Federal Subsistence Board (“FSB”) in opposition to the Kenai gillnet regulation before it was promulgated, ^[5] and that FWS is currently raising as it simultaneously seeks reconsideration of that regulation^[6] and an amendment that bans the Kenai River gillnet.^[7]

         After NTC submitted an initial draft operational plan to Anderson in early May, Anderson responded with his comments and concerns.^[8] NTC retained Dr. Gregory T. Ruggerone, a fisheries expert, to help it allay Anderson’s concerns.^[9] NTC then submitted to Anderson a revised operational plan.^[10]

         In a letter dated June 27, Anderson denied NTC’s operational plan.^[11] Anderson stated in pertinent part that he could not approve the Kenai River gillnet permit because (1) NTC’s plan did not provide for conservation of Chinook Salmon, Rainbow Trout, and Dolly Varden, and (2) “the use of a non-selective gear type in the Kenai River will inevitably result in conflicts with existing [f]ederal subsistence regulations that do not allow for the harvest of early-run Chinook Salmon and require the release of Rainbow Trout and Dolly Varden larger than 18 inches.”^[12] The next day, June 28, NTC submitted to the FSB an emergency special action request (“SAR”) seeking relief from Anderson’s denial.^[13] The FSB plans to consider NTC’s SAR during its meeting on July 26-28.^[14]

         NTC’s preliminary injunction seeks relief based on its claims that Anderson’s denial of its operational plan violates its rights under Section 804 of ANILCA.^[15]

         III. STANDARD OF REVIEW

         “A preliminary injunction is an extraordinary remedy never awarded as of right.”^[16]A court considering a request for a preliminary injunction “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.”^[17] A plaintiff may obtain a preliminary injunction by establishing that: (1) it is “likely to succeed on the merits;” (2) it is “likely to suffer irreparable harm in the absence of preliminary relief;” (3) “the balance of equities tips in [its] favor;” and (4) “an injunction is in the public interest.”^[18] In addition, a preliminary injunction may be granted under the Ninth Circuit’s “sliding scale” approach to the Winter test if the second and fourth Winter elements are satisfied and the plaintiff raises “serious questions” as to the merits and “the balance of hardships tips sharply in [its] favor.”^[19]

         IV. DISCUSSION

         Because NTC has not exhausted its administrative remedies, NTC has not raised serious questions going to the merits whether Anderson unlawfully denied its operational plan. Under the exhaustion of remedies doctrine, “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed . . . remedy has been exhausted.”^[20] “Of paramount importance to any exhaustion inquiry is congressional intent. Where Congress specifically mandates, exhaustion is required.”^[21]

         NTC’s claims that are at issue here arise under ANLICA, which predicates district court review of agency action “upon exhaustion of any . . . [f]ederal . . . administrative remedies which may be available.”^[22] The court is powerless to grant NTC the relief it seeks until it exhausts its administrative remedies before the FSB.

         NTC raises three arguments as to why exhaustion should be excused. First, it argues that exhaustion is futile because the FSB has already spoken regarding the merits of the gillnet. It relies on Ringer v. Schweiker, ^[23] which involved a ruling by the Secretary of Health and Human Services that insurance carriers could not pay Medicare claims for a certain operation because the operation was not “reasonable and necessary.”^[24] “The ruling purported to prohibit ALJs and the Appeals Council from determining that benefits could be paid for [the] operations, and ALJs have, since the ruling, denied all requests for benefits without a hearing.”^[25] The Ninth Circuit held that exhaustion was ...