STATE OF ALASKA, DEPARTMENT OF FISH AND GAME, Plaintiff, v. FEDERAL SUBSISTENCE BOARD, et al., Defendants, v. ORGANIZED VILLAGE OF KAKE, Defendant-intervenor.
Case No. 3:20-cv-00195-SLG
November 18, 2020
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION REGARDING DELEGATION OF AUTHORITY TO OPEN EMERGENCY HUNTS
Before the Court at Docket 4 is the State of Alaska, Department of Fish and Game (the State)s Motion for Preliminary Injunction. Defendants responded in opposition at Docket 15.1 The State replied at Docket 22. The Court heard argument on the motion on September 8, 2020.
The State commenced this action on August 10, 2020 against the Federal Subsistence Board (FSB), and several other federal officials (collectively, Defendants).2 The State alleges that the FSB violated the Open Meetings Act, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA), Section 1314 of ANILCA, and the Administrative Procedure Act (APA) by delegating authority to local land managers to open emergency hunts in response to COVID-19-related food security concerns, by authorizing a hunt near the Organized Village of Kake, and by voting on a request for an emergency hunt from the Koyukuk Tribal Village.3 The State moved for a temporary restraining order and preliminary injunction prohibiting Defendants from (1) delegating authority to local land
BACKGROUND
With the advent of the COVID-19 pandemic, the FSB received numerous requests from remote Alaskan communities for emergency hunting authorizations to address existing or potential food shortages.5 Among these were requests from the Organized Village of Kake (OVK), the Koyukuk Tribal Village, and the Organized Village of Saxman.6 The requesters explained that travel restrictions, reduced transportation of goods, and disruptions in national food supply had diminished or were expected to diminish their communities food supply.7
In April, 2020, the FSB voted to authorize a process for sending letters of delegation to agency field managers to allow them to open . . . hunting and fishing opportunities in response to any demonstrated emergency situation relating to food security that rises to the level of constituting a threat to public safety.8 The FSB rationalized that delegating the authority to the local land managers would help expedite a response to the incoming emergency requests.9 In a memorandum for the Secretary for the Department of the Interior, the Office of Subsistence Management described the proposed parameters of the delegation (OSM Memorandum).10 It provides:
A few key points regarding this issue bear emphasis . . . [I]t is clear that certain supply lines within the state have [been] disrupted and that the potential exists for this to result in significant threats to food security and public safety.
No COVID-19-related action will be taken by the Federal Subsistence Board or their delegated agent if the requested hunting or fishing opportunity threatens the viability of the resource or in the absence of a demonstrable and imminent threat to public safety.
Any actions so taken will be temporary in nature and will not remain in effect beyond the time that the threat to public safety has passed.
No action will be taken by the Federal Subsistence Board or their delegated agent to open additional hunting or fishing opportunities prior to consultation with the ADFG and confirmation of need with the State of Alaska Unified Command Mass Care Group.11
This letter delegates specific regulatory authority from the Federal Subsistence Board (Board) to the Petersburg District Ranger to issue emergency special actions related to food security and may be exercised only for reasons of public safety, and when doing so will not threaten the continued viability of the wildlife resource.
* * *
It is the intent of the Board that actions related to management of [wildlife] by Federal officials be coordinated, prior to implementation, with the Alaska Department of Fish and Game (ADF&G), representatives of the Office of Subsistence Management (OSM), and the Chair of the affected Council(s) to the extent possible. In addition, you will consult with the State of Alaska Unified Command Mass Care Group prior to implementing any emergency special action under this delegation.13
The FSB specified that the delegation of authority was established pursuant to
The Kake Hunt
On June 4, 2020, Joel Jackson, the President of the OVK, wrote to the Petersburg District Ranger, Ted Sandhofer, to renew the OVKs request for an emergency hunt.17 Mr. Jackson explained that the OVK and the community of Kake [were] in a very vulnerable situation as limited resources were coming in and [v]endors [were] having a more difficult time meeting the need of the stores in Kake.18 Upon receipt of this request, Mr. Sandhofer contacted the Mass Care Group, who informed him that they could not confirm any food shortage or supply chain disruption in Kake.19 He attempted to contact the ADF&G but failed to get any response.20 On June 12, 2020, Mr. Sandhofer deferred the OVKs request to the FSB.21
The FSB considered the request at a meeting on June 22, 2020, at which Mr. Jackson testified about the OVKs food security concerns.22 He stated that while the OVK was getting some meat, its not very good, and the stores here are not able to secure everything that they ordered
The FSB voted to approve a limited season of up to 60 days to be administered by the local federal land manager, Mr. Sandhofer.26 According to a declaration from Lisa Maas, the Acting Policy Coordinator and Wildlife Biologist for the OSM, the FSB considered Mr. Jacksons testimony, as well as evidence of the lack of conservation concerns for moose and deer in the area before voting.27 Additionally, several Board members stated that based on information concerning food supply line disruptions received directly from the President of the OVK, they disagreed with the Mass Care Groups conclusion and hoped that in the future, better understanding of the Mass Care Groups information gathering process could be obtained.28 The FSB members reiterated their obligations under Title VIII [of ANILCA] to provide for a rural subsistence priority and to take action to address food shortages and improve food security in the community.29
Pursuant to the FSBs authorization, Mr. Sandhofer issued a permit for a Kake community harvest . . . allowing the Organized Village of Kake to harvest up to 2 antlered bull moose and 5 male Sitka black-tailed deer . . . .30 The permit specified that [p]articipation in the season is limited to Federally qualified subsistence users selected by the Organized Village of Kake.31 Mr. Jackson confirmed that the harvest from the emergency hunt would be shared with the entire community.32 The hunt concluded on July 24, 2020 and the harvest was distributed to 135 households in the village.33
The Koyukuk Hunt
On June 3, 2020, the Koyukuk Tribal Village also renewed its request for an emergency hunt for 3 moose.34 After receiving the renewed request, the refuge manager for the region reached out to the Mass Care Group, which responded that it was not aware of any substantial food shortage or food supply chain disruption due to COVID-19.35 On July 22, 2020, the State was informed that the FSB was voting on the request by e-mail with a July 27, 2020 deadline.36 Ms. Maas informed the
On August 10, 2020, the State commenced this action and moved for injunctive relief.38 On August 17, 2020, the Secretary of the Interior directed the FSB to temporarily pause its operations and suspend any decisions regarding requests for COVID-19-related emergency hunting or fishing authorizations until disposition of the preliminary injunction motion.39
JURISDICTION
This Court has subject matter jurisdiction pursuant to
LEGAL STANDARD
In Winter v. Natural Resources Defense Council, Inc., the United States Supreme Court held that plaintiffs seeking preliminary injunctive relief must establish that (1) they are likely to succeed on the merits; (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.41 Winter was focused on the second element, and clarified that irreparable harm must be likely, not just possible, for an injunction to issue.42
Following Winter, the Ninth Circuit addressed the first element—the likelihood of success on the merits—and held that its serious questions approach to preliminary injunctions was still valid when applied as part of the four-element Winter test.43 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 plaintiffs favor . . . .44 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.45
A. Alaska National Interest Lands Conservation Act (ANILCA)
The Court summarized the legal framework of ANILCA in its order addressing the States preliminary injunction motion at Docket 3.46 In brief, Congress enacted ANILCA to help preserve Alaskas natural resources while simultaneously providing continued opportunity for rural residents to engage in a subsistence way of life.47 With Title VIII of ANILCA, Congress . . . created a subsistence management and use program,48 which prioritizes subsistence use of resources: Except as otherwise provided in this Act and other Federal laws, the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority over the taking on such lands of fish and wildlife for other purposes.49
Congress authorized the Secretary of the Interior and the Secretary of Agriculture to promulgate regulations in furtherance of its directives;50 they created the FSB and charged it with administering the subsistence taking and uses of fish and wildlife on public lands.51 Among the FSBs regulatory powers are its emergency special actions:
In an emergency situation, if necessary to ensure the continued viability of a fish or wildlife population, to continue subsistence uses of fish or wildlife, or for public safety reasons, the Board may immediately open or close public lands for the taking of fish and wildlife for subsistence uses, or modify the requirements for take for subsistence uses, or close public lands to take for nonsubsistence uses of fish and wildlife, or restrict the requirements for take for nonsubsistence uses.
* * *
The emergency action will be effective when directed by the Board, may not exceed 60 days, and may not be extended unless the procedures for adoption of a temporary special action, as set forth in paragraph (b) of this section, have been followed.52
B. The States Motion for a Preliminary Injunction
In its motion for a preliminary injunction, the State contends that the FSB violated the Open Meetings Act by delegating authority to local land managers and by voting on the Koyukuk request without holding a public meeting.53 The State also contends that the FSB violated ANILCA
i. Mootness
Before turning to the merits, the Court must consider Defendants mootness challenge.57 Defendants contend that the Kake hunt is over and thus, that the Court cannot as a practical matter, issue an injunction that would redress any injury the State allegedly suffered.58 Defendants contend that for purposes of this motion, there is no concrete, actual controversy and the issue is moot.59 They recognize that there exists an exception to the mootness doctrine when the challenged conduct is capable of repetition but evades review,60 but maintain that it does not apply here because the Kake hunt is a discrete response on a particularized record to address one remote communitys needs during a global pandemic.61 Defendants stress that the FSB has not authorized any similar hunts and contend that there is no basis in the present record for finding the Kake hunt creates a template or is in any way predictive of the Boards response to a different request.62 Defendants analogize to Fund for Animals v. Mainella, where the District Court for the District of Columbia dismissed as moot a challenge to a completed hunt.63
The State responds that the issue is not moot,64 and that its claims fall squarely within the exception to the mootness doctrine for matters that are capable of repetition, yet evading review.65 Specifically, the State notes that the FSBs delegation of authority would not expire until June 2021, and thus, that the [a]uthorizations for emergency hunts are capable of repetition for so long as the delegation remains in effect.66 The State contends that the FSB has shown that it will not follow its own guidelines, and maintains that the 60-day emergency hunts would consistently evade judicial review due to their
The mootness doctrine requires that an actual, ongoing controversy exist at all stages of federal court proceedings. [I]f events subsequent to the filing of the case resolve the parties dispute, we must dismiss the case as moot[.]68 The States motion seeks to enjoin more than the Kake hunt: it asks the Court to enjoin Defendants from delegating regulatory authority to in-season managers, from opening any future hunt for COVID-19-related reasons, from refusing to share harvest information, and from delegating administrative authority outside of federal agencies.69 Thus, to the extent the States motion applies to future hunts, which could well occur during the pendency of this litigation, the completion of the Kake hunt does not render the States request for preliminary injunction moot.70
As to the States challenges to the emergency Kake hunt itself, the Court obviously cannot grant the State the relief that it seeks.71 However, as the parties noted, there exists an exception to the mootness doctrine for a controversy that is capable of repetition, yet evading review.72 It applies only in exceptional situations, where (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.73 The rationale behind this exception is straightforward: some activities or situations are inherently fleeting in nature, such that orderly and effective judicial review would be precluded if we hewed strictly to the requirement that only a presently live controversy presents a justiciable question.74 In such cases, if a particular plaintiff is likely to suffer the same or very similar harm at the hands of the same defendant, the alleged wrongdoer should not be permitted to escape responsibility simply because the transaction is completed before . . . [a] court has a chance to review the case.75
The Court concludes that the exception to the mootness doctrine applies to the emergency Kake hunt. These emergency hunts are necessarily limited to 60 days or less, which is too short a period of time to complete judicial review.76 Moreover,
Although Defendants rely on Mainella, it does not compel a different conclusion. There, the plaintiffs challenged the State of New Jerseys regulation authorizing a five-day black bear hunt. After the hunt ended, the defendants moved to dismiss the case as moot.77 The district court dismissed the case, concluding that it was not the type of case that is capable of repetition, yet evading review.78 It reasoned that to authorize another hunt, the State of New Jersey would have to promulgate a regulation through a notice and comment period and the plaintiffs would have notice of the rule making, would be able to participate in it, and would have sufficient time to challenge any federal agency action . . . .79 Mainella is readily distinguishable from the instant matter insofar as the court there expected a full notice and comment period prior to any future hunts. In contrast, the FSBs continued delegation of authority to local land managers allows them to open emergency 60-day hunts, practically guaranteeing the State would have insufficient time to challenge the agency action.
Thus, the Court concludes that the States challenge to the Kake hunt is not moot because the same legal issue in this case is likely to recur in future controversies between the same parties in circumstances where the period of [the hunt] is too short to allow full judicial review before performance is complete.80 Accordingly, the Court turns to the merits of the States motion for preliminary injunction.
ii. Likelihood of Success on the Merits
The Court begins its analysis by evaluating the States likelihood of success on the merits of each claim. The Court reviews agency action according to § 706 of the Administrative Procedure Act (APA), which provides that a reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . [or] in excess of statutory jurisdiction, authority, or limitations . . . .81 The Courts review of agency action under § 706(2) is narrow:
a court is not to substitute its judgment for that of the agency,82 and such deference is especially appropriate where the challenged decision implicates substantial agency expertise.83
a. Open Meetings Act
The State contends that the FSBs April 9, 2020 meeting violated the Open Meetings Act, which requires that every portion of every meeting of an agency shall be open to public observation.84 The State maintains that because the FSB is an agency for purposes of the Act, actions taken by voting members must occur at a public meeting and those meetings must
Defendants do not concede that the Open Meetings Act applies to the FSB.89 They contend that the duties of the FSB are set forth in
The State disputes that the FSBs adopted regulations can override clear statutory mandates, and adds that the limited jurisdiction provision of the Act does not apply where, as here, violations of the Open Meetings Act are not the sole basis for injunctive relief.93
The
As a threshold matter, the Court finds that the State has not established that its
may be brought by any person against an agency prior to, or within sixty days after, the meeting out of which the violation of this section arises, except that if public announcement of such meeting is not initially provided by the agency in accordance with the requirements of this section, such action may be instituted pursuant to this section at any time prior to sixty days after any public announcement of such meeting.95
The State commenced this action on August 10, 2020, but indicated to the Court that it was made aware of the delegation of authority on April 16, 2020, at an FSB meeting.96 Thus, the State brought this action more than sixty days after a public announcement of the alleged violation of
The State also alleges that Defendants violated the
The Court is not persuaded by Defendants’ assertion that it is not governed by the
Accordingly, “every portion of every meeting of [the FSB] shall be open to public observation.”103 The
In light of the foregoing, the Court finds that the State has established
Thus, the State‘s
b. Title VIII of ANILCA
The State contends that Defendants violated ANILCA on three grounds: First, by adopting a regulation that authorizes the FSB to open hunts; second, by authorizing a hunt exclusively for tribal members; and third, by infringing on the State‘s constitutionally-mandated responsibility to manage wildlife. The Court will address each ground in turn.
First, the State points to Sections 815 and 816 of ANILCA, and maintains that those sections only authorize the FSB to close or restrict hunting and that ANILCA “d[oes] not authorize opening a hunt . . . .”108 The State contends that in promulgating its emergency special action regulation,
Defendants respond that ANILCA created a federal statutory scheme that mandates that “‘the taking on public lands of fish and wildlife for nonwasteful subsistence uses shall be accorded priority.‘”110 They contend that the “duty to administer
Defendants maintain that ANILCA‘s “affirmative command” to accord priority to subsistence uses simply “cannot be reconciled” with the State‘s position that ANILCA does not authorize the FSB to open a hunt, adding that the State‘s reliance on Section 815 of ANILCA is erroneous because it is a “Limitation and savings clause.”112 Defendants contend that the case law “reflects the practical reality that the Board regularly creates, modifies, or imposes conditions on subsistence hunting opportunity,” and that the FSB has faced past legal challenges when it failed to open hunts.113 Defendants add that the FSB‘s regulations “eliminate any doubt” as to whether the FSB has the power to authorize the Kake hunt, citing the provision in
The State disputes Defendants’ contention that it is time-barred from challenging
In ANILCA, Congress expressly authorized the Secretary to “prescribe such regulations as are necessary and appropriate to carry out his responsibilities under this title.”118 The Secretaries of the Interior and of Agriculture established the FSB and delegated to it their statutory authority to issue regulations for the management of subsistence taking and uses of fish and wildlife on public lands.119 Among the regulations
As an initial matter, the Court agrees with the State that its as-applied challenge to the regulation is not time-barred.121 In the Ninth Circuit, “[i]f . . . a challenger contests the substance of an agency decision as exceeding constitutional or statutory authority, the challenger may do so later than six years following the decision by filing a complaint for review of an adverse application of the decision to the particular challenger.”122 Here, the State challenges the FSB‘s recent use of the regulation to open emergency COVID-19-related hunts as exceeding its statutory authority, and thus, the claims were brought well within the six-year limit.123
The Court turns next to the regulation itself, and whether it exceeds the FSB‘s authority under ANILCA; in doing so, the Court accords “deference to an agency‘s interpretation of a statute it administers.”124 “Congress delegated to the Secretary of the Interior the broad authority to ‘prescribe such regulations as are necessary and appropriate to carry out his responsibilities under [ANILCA]‘” and the Court is “thus prohibited from substituting [its] ‘own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.‘”125 Indeed, the Ninth Circuit has deferred to an agency‘s interpretation of ANILCA on several occasions.126 Because ANILCA does not explicitly state that the FSB has the authority to open a hunt, the Court will defer to the FSB‘s interpretation “as long as it reflects ‘a permissible construction of the statute.‘”127 The Court
The FSB contends that Section 804 of ANILCA is an affirmative command to accord priority to subsistence uses and gives the FSB broad authority to implement that command, including the authority to adopt
Based on the language of Section 804 as well as Congress‘s stated goals, the Court concludes that ANILCA‘s priority for subsistence uses aims, among other things, to ensure the physical well-being of rural residents of Alaska. Given Congress‘s express authorization to promulgate regulations to further ANILCA‘s goals, the Court concludes that the FSB‘s interpretation of Section 804 as authorizing a regulation to open emergency hunts due to public safety concerns is reasonable. Moreover, there are no provisions in ANILCA prohibiting the FSB from opening a hunt or otherwise indicating that it does not have the authority to do so; indeed, the State does not contend as much. Instead, the State maintains that the FSB erred in relying on Sections 815 and 816 of ANILCA to open a hunt. Defendants deny relying on either provision.134 Section 815 addresses limitations on the FSB‘s ability to restrict nonsubsistence uses, among other things, and Section 816 addresses its authority to enact closures. Neither of these provisions is relevant to the issue of whether the FSB has the authority to open a hunt, and, importantly, neither renders the FSB‘s interpretation of Section 804 unreasonable.
In light of the deference due the agency‘s interpretation, the Court finds that the State has not shown either that it is likely to succeed on the merits, or raised
Second, the State contends that even if the FSB had the authority to open a hunt, it violated ANILCA—which provides for continued subsistence hunting for both Alaska Natives and non-Natives—by authorizing a hunt near Kake “only for tribal members” of the OVK.135 Defendants respond that the State has not established why the FSB could not authorize community harvest only for tribal members of the OVK, noting that the FSB has previously accepted proposals from tribal organizations for management of harvest opportunities, and that the State itself recognizes community harvests where designated hunters harvest the resource on behalf of a group.136 The State replies that the FSB cannot justify its discrimination between Native and non-Native rural residents by contending that it does so regularly.137 It adds that the delegation of authority in the Copper Valley permit is “not at all the same,” noting that any group of a certain size was eligible to participate in the hunt, and that eligibility was not limited to tribal members.138
The State contends that here, there is “no evidence as to whether the hunters or recipients were native or non-native,” emphasizing that the FSB had relinquished its oversight of the hunt.139 The State discounts the “post-hoc email exchange” with Mr. Jackson confirming the harvest was shared with the whole community, stressing that the “permit, on its face, limited participation solely to tribal members” in violation of ANILCA.140
The Court is not persuaded that the permit authorizing the Kake hunt “on its face” limits participation solely to tribal members. The permit “authorizes a Kake community harvest” and specifies that “[p]articipation in the season is limited to Federally qualified subsistence users selected by the Organized Village of Kake.”141 The FSB defines “federally qualified subsistence users” as “rural residents who have been determined to have customary and traditional use” of wildlife within a specified area as determined by
Third, the State contends that the FSB violated ANILCA by infringing on the State‘s authority to manage wildlife and hunting, which it maintains was preserved for the State by the following provision of ANILCA: “Nothing in this Act is intended to enlarge or diminish the responsibility and authority of the State of Alaska for management of fish and wildlife on the public lands except as may be provided in title VIII of this Act, or to amend the Alaska constitution.”143 Defendants respond that the State has failed to establish that the Kake hunt infringed on the State‘s authority or had any effect on the State‘s management of wildlife in the region. Defendants add that, in any event, ANILCA is not concerned with the “collateral effect” that a regulation “might cause a separate regulatory body.”144
The State correctly notes that ANILCA preserves the State‘s authority to manage fish and wildlife other than as provided by Title VIII of ANILCA. However, as discussed above, the Court finds reasonable the FSB‘s interpretation of Title VIII as authorizing it to open emergency hunts. As such, the FSB did not unlawfully infringe on the State‘s authority to manage fish and wildlife on public lands, but acted as authorized by Title VIII. The Court finds that the State has not demonstrated either a likelihood of success or serious questions going to the merits of its claim that Defendants violated ANILCA by infringing on the State‘s authority to manage wildlife and hunting.
b. Arbitrary and Capricious
The State contends that the FSB‘s “decision to open a 60-day hunt for deer and moose to Kake tribal residents is arbitrary, capricious, and not in accordance with law.”145 First, the State contends that even if the FSB were authorized to open hunts, its decision to authorize the Kake hunt was contrary to the FSB‘s own guidelines.146 Specifically, it contends that there is “no evidence that anyone at [ADF&G] was contacted,” as required by the guidelines, and there was no confirmation by the Mass Care Group of a food security issue.147 Second, the State contends that the evidence considered by the FSB at the June 22, 2020 meeting did not support its decision: there was no evidence of food shipment issues or COVID-19-related ferry delay and there was evidence that meat and supplies were available in Kake and that the community was benefiting from fishing season.148 The State adds that even if there had been a food security issue in April—when the OVK first requested an emergency hunt—there certainly was not one in June, when the FSB authorized the hunt.149 Separately, the State contends that the FSB‘s delegation of the authority to the OVK to select the hunters is invalid because ANILCA does not authorize the FSB to delegate outside a federal agency.150
Defendants respond that the State cannot bring a standalone APA claim, and that an arbitrary and capricious review “may not be conducted under the APA independent of another statute.”151 They do not otherwise respond to the State‘s APA arguments. However, because the
The Ninth Circuit has explained:
“[An] agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”152
The State contends that the FSB‘s decision to authorize the Kake hunt was contrary to its own guidelines. There are two sources of “guidelines” in the record: the OSM Memorandum and the Delegation Letters. The OSM Memorandum predates the Delegation Letters.153 It provides “key points . . . [that] bear emphasis” including that no action will be taken by the FSB or the delegates (1) if the requested hunting or fishing opportunity “threatens the viability of the resource,” (2) if there is an “absence of a demonstrable and imminent threat to public safety,” (3) prior to consultation with the ADF&G, or (4) prior to confirmation of need by the Mass Care Group.154 The Delegation Letters reiterate these considerations, stating that the delegation authority “only applies to requests related to food security and may be exercised only for reasons of public safety, and when doing so will not threaten the continued viability of the wildlife resource.”155 The letter specifies that the delegate “will consult with the State of Alaska Unified Command Mass Care Group prior to implementing any emergency special action,” and that if the Mass Care Group “does not confirm the need for this special action” the delegate is to defer the action to the FSB.156
Because the Mass Care Group was unable to confirm the need for the Kake action, the district ranger deferred the Kake action to the FSB.157 The FSB considered and voted to adopt the special action request at its June 22, 2020 meeting.158 The record shows that the FSB adopted the emergency season “for reasons of public safety related to food security concerns in Kake.”159 In adopting the request, the FSB considered that there were no conservation concerns, that the action would not affect regular State or Federal hunts, and considered evidence presented by the President of the OVK that “ferry service had been disrupted, that store bought meat was extremely expensive and of questionable quality, and that there was a need for supply of healthy food to help” the community.160 The FSB
Based on the foregoing, the Court finds that the record contained ample evidence that supported and was rationally connected to the FSB‘s decision to approve the emergency special action in Kake for reasons of public safety related to food security concerns;162 the FSB considered relevant factors—conservation and public safety concerns—and articulated a satisfactory explanation for its decision.163 Although the State contends that the FSB violated its own guidelines by failing to coordinate with ADF&G, the record shows that the district ranger attempted to communicate with the State about the FSB‘s intended special action, but the State did not respond.164 The State also contends that the FSB violated those same guidelines by overriding the Mass Care Group‘s position that it could not confirm a food shortage or supply chain issue; however, the record clearly demonstrates that the FSB considered the Mass Care Group‘s position but found it inconsistent with other evidence presented at the meeting.165
Based on this record of decision making, the Court finds that the State has not
The Court next considers the State‘s contention that the FSB‘s decision to delegate to the OVK the selection of participants in the Kake community hunt was arbitrary, capricious, and contrary to law. The State relies on United States Telecom Association v. FCC, which held unlawful the FCC‘s subdelegation of its authority to state commissions on the basis that the “case law strongly suggests that subdelegations to outside parties are assumed to be improper absent an affirmative showing of congressional authorization.”166 The District of Columbia Circuit reasoned that “when an agency delegates power to outside parties, lines of accountability may blur” and there is an increased “risk that these parties will not share the agency‘s ‘national vision and perspective’ and thus may pursue goals inconsistent with those of the agency and the underlying statutory scheme.”167
However, the Ninth Circuit has specified that “[s]ubdelegation of administrative authority to a sovereign entity is not per se improper,” adding that such subdelegation need not “rest on express statutory authority.”168 The Ninth Circuit reasoned that “tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory” and “possessing ‘the power of regulating their internal and social relations . . . .”169
The Court finds that the FSB‘s subdelegation to the OVK of the authority to select the participants of the hunt does not implicate the concerns at issue in United States Telecom Association; there is no reason to expect that the OVK will select participants in a manner that is inconsistent with the goals of the FSB or ANILCA‘s mandate. The OVK is a federally recognized Indian Tribe with powers of self-governance and jurisdiction over its tribal citizens and subsistence resources are a “foundational piece of the cultural fabric of Kake.”170 It brought this emergency request to the FSB “[t]o aid needy members and protect the general Welfare and security of the Village.”171 Moreover, the delegation of authority at issue here is minor, implicating only who participates in the hunt. To the extent that the State is concerned with the distribution of the harvest among members of the community, that would be a concern even if the local land manager had selected the hunt participants and is not inherent to this particular delegation of authority.172
Based on the foregoing, the Court finds that the State has not demonstrated either a likelihood of success or serious questions going to the merits of its claim that the
iii. The Likelihood of Irreparable Harm
The first factor in the preliminary injunction analysis—the likelihood of success on the merits—is the most important.173 The Ninth Circuit has held that “[b]ecause it is a threshold inquiry, when ‘a plaintiff has failed to show the likelihood of success on the merits, we “need not consider the remaining three [Winter elements].“‘”174 Nonetheless, the Court will briefly address irreparable harm. The State “must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”175
The State contends that the FSB‘s authorization of a hunt near Kake “impairs the State‘s ability to manage its fish and wildlife” by allowing “moose and deer to be taken out of season and in excess of established bag limits.”176 It maintains that wildlife population information is critical to its ability to fulfill its constitutional obligation to manage wildlife according to the sustained yield principle, and that the FSB‘s actions “in secret meetings and without providing harvest information to the State, cause irreparable harm” to those obligations.177 Specifically, the State contends that it relies on information from hunters to determine herd composition, and that the OSM had refused to share with the State information, including “hunter[] name, moose jaw, moose antler photos, number of brow tines, and antler points for moose.”178 It adds that when the FSB conducts unannounced meetings, the State and its residents are unable to participate in the deliberations, and concludes that the harm from the actions taken at those meetings is irreparable and warrants injunctive relief.179
Defendants respond that the State was provided with customary harvest data, but that some of its requests were “unprecedented” and that Defendants were, at least initially, unable to fulfill them.180 Defendants add that these concerns “do not implicate imminent injury, but one past hunt” and are not “connected to the particularized conduct at issue . . . .”181
In its reply brief, the State acknowledges that Defendants ultimately provided all the requested information but disputes that its requests were unusual.182 The State expresses concern that the FSB may withhold information in the event of future authorized hunts.183
The Court concludes that the State has not shown a likelihood of irreparable harm. First, to conclude that any change to the number of moose or deer harvested in a given season irreparably harms the State‘s ability to manage hunting
Finally, the State predicts that, absent a preliminary injunction, “other COVID hunts may be authorized” in “closed meetings with no public awareness or involvement.” Yet the Court is only aware of a single emergency hunt authorized by the FSB—the Kake hunt—and that was authorized at a public meeting.
In sum, the State has not demonstrated that it will likely be irreparably harmed in the absence of a preliminary injunction.
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CONCLUSION
In light of the foregoing, the State‘s motion for a preliminary injunction regarding COVID-19 emergency hunts at Docket 4 is DENIED.
DATED this 18th day of November, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Notes
Nothing in this title shall be construed as . . . authorizing a restriction on the taking of fish and wildlife for nonsubsistence uses on the public lands (other than national parks and park monuments) unless necessary for the conservation of healthy populations of fish and wildlife, for the reasons set forth in section 816 [Section 816, in turn, provides that “[n]othing in this title is intended to enlarge or diminish the authority of the Secretary to designate areas where, and establish periods when, no taking of fish and wildlife shall be permitted on the public lands for reasons of public safety, administration, or to assure the continued viability of a particular fish or wildlife population.”16 U.S.C. § 3126 ], to continue subsistence uses of such populations, or pursuant to other applicable law . . . .16 U.S.C. § 3125 .