ELR Citation: ELR 20291
No(s). 93-35496 (9th Cir. Sep 1, 1994)

The court holds that the district court abused its discretion in denying a preliminary injunction barring enforcement of a U.S. Department of the Interior (DOI) regulation interpreting "public lands" under the Alaska National Interest Lands Conservation Act (ANILCA) not to include navigable waters, and of Alaska's regulations prohibiting subsistence rainbow trout fishing in navigable waters. Native Alaskan villages in the Togiak National Wildlife Refuge challenged the federal and state regulations. DOI's regulation denied the federal subsistence board subsistence management jurisdiction over Alaska's navigable waters, allowing a state ban to prevent subsistence rainbow trout fishing in such waters. The court first affirms the district court's ruling that the native villages raise a serious question whether DOI's regulation interpreting ANILCA to exclude navigable waters from the definition of public lands is unreasonable by presenting serious questions whether the United States retains reserved water rights for the Togiak National Wildlife Refuge that constitute the necessary federal "interest" to qualify them as public lands and whether the navigational servitude held by the United States on navigable waters constitutes the necessary federal "interest" in the waters in dispute.

The court next holds that the district court erred in determining that the villages had not shown that the balance of hardships tips sharply in their favor. The United States and Alaska presented no evidence that issuance of a preliminary injunction will injure them during the pendency of this litigation, other than by imposing minor regulatory changes. The villages presented strong evidence that injury is likely because navigable waters are critical for subsistence rainbow trout fishing, an important part of the villages' diet. Moreover, the villages presented evidence that the federal and state regulations interfere with their way of life and cultural identity, contrary to ANILCA §801(1)'s congressional directive to protect the cultural aspects of subsistence living. Furthermore, recent federal regulatory changes that allow subsistence rainbow trout fishing in the remote, nonnavigable headwaters of the villages' river systems and state regulatory changes that allow incidental taking of rainbow trout in navigable waters did not eliminate, or even mitigate, the demonstrated harm to the villages because the regulations still ban directed rainbow trout fishing, which is the most effective way to catch rainbow trout. Finally, the court holds that the villages are entitled to recover all of their attorney fees under ANILCA §807(a).

[Briefs in this action are digested at ELR PEND. LIT. 66307.]

Counsel for Plaintiffs
Joseph D. Johnson
Alaska Legal Services Corporation
1016 W. 6th Ave., Ste. 200, Anchorage AK 99501
(907) 272-9431

Counsel for Defendants
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Joanne M. Grace, Ass't Attorney General
Attorney General's Office
1031 W. 4th Ave., Ste. 200, Anchorage AK 99501
(907) 269-5100

Before: PREGERSON, CANBY, and BOOCHEVER, Circuit Judges.