United States District Court, D. Alaska
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 ...