Tok Air Service, LLC v. Haaland et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TOK AIR SERVICE, LLC, )
)
Plaintiff, )
)
vs. )
)
DEB HAALAND, in her official capacity as )
Secretary of the United States Department of )
the Interior, et al., )
) No. 4:21-cv-0012-HRH
Defendants. )
_______________________________________)
O R D E R
Petition for Preliminary Injunction
Plaintiff moves for a preliminary injunction requiring the National Park Service to
temporarily grant it a Big Game Transport commercial use authorization (CUA).1 This
motion is opposed,2 and plaintiff has replied to defendants’ opposition.3 The parties
expressly agreed to waive oral argument4 and oral argument is not deemed necessary. In
1Docket No. 3.
2Docket No. 12.
3Docket No. 14.
4Order re Preliminary Injunction Schedule at 2, Docket No. 11.
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addition, none of the parties requested an evidentiary hearing, nor does the court deem one
necessary.
Background
Plaintiff is Tok Air Service, LLC. The sole member of Tok Air is Zack Knaebel.5
Defendants are Deb Haaland, the Secretary of the United States Department of the Interior;
Shawn Benge, Director of the National Park Service; Jeff Mow, Alaska Regional Director
of the National Park Service; and Ben Bobowski, the Superintendent of the Wrangell-St.
Elias National Park. Defendants are all sued in their official capacities.
Section 101925 of Title 54 of the United States Code provides that “the Secretary [of
Interior], on request, may authorize a private person, corporation, or other entity to provide
services to visitors to [National Park] System units through a commercial use authorization.”
CUAs may only be issued for the provision of services that
(A) will have minimal impact on resources and values of a
System unit; and
(B) are consistent with the purpose for which the System unit
was established and with all applicable management plans and
Service policies and regulations.
54 U.S. § 101925(b)(1). The term of a CUA may not exceed two years, and the statute
prohibits any “preferential right of renewal. . . .” 54 U.S.C. § 101925(f).
5Complaint for Injunctive Relief at 1, ¶ 2, Docket No. 1.
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The Secretary has delegated her authority regarding CUAs to National Park
managers.6 Policy 700-001 “provides guidance to Alaska national park managers when
considering whether to suspend, restrict or revoke a Commercial Use Authorization (CUA)
and when considering whether to approve an application for a future CUA.”7 The
policy is intended to provide general guidance regarding the
actions to be taken in the event of a permittee violation. The
Superintendent may take a different action than that called for
in this policy at his/her discretion. The Superintendent retains
the authority to immediately suspend, restrict or revoke a CUA
or deny a future CUA application. These actions are subject to
the Administrative Procedure Act, . . . and therefore the Superin-
tendent’s discretion is not unlimited. A Superintendent’s
decision will be overturned by a court if it is found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.[8]
Violations for which Policy 700-001 may be invoked include:
1. Failure to comply with state or federal law, regulation or
administrative action where a link exists between the
offense and the business activity authorized, regardless
of whether the violation occurred in a unit of the Na-
tional Park System;
* * *
4. Failure to comply with the provisions and conditions of
the CUA, including national, regional, and park-specific
conditions . . . ;
6Exhibit 3 at 1, Petition for Preliminary Injunction [etc.], Docket No. 3.
7Id.
8Id. at 2.
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5. Failure to adequately and timely address material and
documented operational concerns expressed by the
National Park Service that may negatively impact visitor
experience, park resources and/or staff and visitor
safety.[9]
Plaintiff first applied for and was granted Air Taxi and Big Game Transport CUAs
in 2014. A Big Game Transport CUA allows the holder to fly nonguided hunters in and out
of a national park. An Air Taxi CUA allows the holder to fly all other categories of users in
and out of a national park.
Defendants contend that there have been numerous complaints lodged about Knaebel
since 2015 and offer a series of emails that Jan Maslen, the Concessions Management
Specialist for the Wrangell-St. Elias National Park and Preserve, avers will “form [part of]
the administrative record [for this case] that the Park Service will ultimately lodge with the
[c]ourt.”10 Plaintiff addresses these complaints in its reply brief by offering an affidavit from
Knaebel.11
In September 2020, Knaebel was charged by the State of Alaska with “violating AS
8.54.720(a)(2) for allegedly hindering a lawful hunt outside” of the Wrangell-St. Elias
9Id.
10Declaration of Jan Maslen at 1, ¶¶ 3-4, appended to Defendants’ Response in
Opposition to Plaintiff’s Petition for Preliminary Injunction, Docket No. 12.
11Second Affidavit of Zachary Knaebel, appended to Plaintiff’s Reply [etc.], Docket
No. 14.
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National Park.12 Knaebel is alleged to have parked his plane for two hours on a remote
airstrip causing another hunter to be delayed in arriving at the airstrip.13 Plaintiff alleges that
the other hunter was still able to land the “same day he expected to and could not have legally
hunted that day.”14 Knaebel pled not guilty and his case has not yet gone to trial. Trial is
currently set for October 25, 2021, although as plaintiff points out, due to the backlog of
cases due to the COVID-19 pandemic, this date is likely to change.15
Plaintiff filed an application for its 2021 Air Taxi and Big Game Transport CUA on
January 28, 2021.16 On May 11, 2021, Bobowski advised Knaebel that plaintiff’s 2021 CUA
application for Air Taxi operations had been approved, but its application for a Big Game
Transport CUA had been denied.17 Bobowski stated that, pursuant to Policy Number 700-
001,
CUAs may be suspended or restricted when the CUA holder is
under investigation or is charged with a criminal offense by state
or federal authorities when a link exists between the conduct
underlying the offense and the business activity authorized, even
when the alleged offense occurred outside NPS-managed lands.
12Complaint for Injunctive Relief at 3, ¶ 19, Docket No. 1.
13Id.
14Id. at ¶ 21.
15Plaintiff’s Reply [etc.] at 6, Docket No. 14.
16Affidavit of Zachary Knaebel at 1, ¶ 2, Exhibit 1, Petition for Preliminary Injunction
[etc.], Docket No. 3.
17Exhibit 2 at 1, Petition for Preliminary Injunction [etc.], Docket No. 3.
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Your pending criminal charge for hindering a lawful hunt is
sufficient to deny this CUA application.[18]
Bobowski further stated that Knaebel’s
pending criminal charge is consistent with numerous complaints
the NPS has received about your business practices within the
park. The complaints primarily involve hunting guide conces-
sionaires, their clients and other commercial user groups. While
none of these complaints have materialized into criminal
charges to date, nor have they previously resulted in a denial of
a permit application, collectively they represent a significant
concern to the Park as you, Tok Air Service LLC, ha[ve]
received more complaints in total since 2015 than any other
CUA holder or concession contract at Wrangell-St. Elias
National Park and Preserve. Moreover, and more importantly,
your interactions with law enforcement have not been consis-
tently professional as would be expected of a National Park
Service CUA holder.[19]
On June 10, 2021, plaintiff filed an appeal with the regional director of the NPS
regarding the denial of its Big Game Transport CUA. On June 29, 2021, Jeffrey Mow,
Acting Regional Director, issued a decision on plaintiff’s appeal.20 Mow “modifi[ed]
Superintendent’s Bobowski’s decision” and “authorize[d] issuance of a Big Game Transport
CUA . . . subject to immediate suspension pending satisfaction” of a number of conditions.21
The conditions include:
18Id.
19Id.
20Exhibit B, Defendants’ Response in Opposition to Plaintiff’s Petition for Preliminary
Injunction, Docket No. 12.
21Id. at 2.
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1. Satisfactory resolution of the pending criminal charge for
hindering a lawful hunt[.]
2. Satisfactory resolution of the pending administrative
charges with the State of Alaska, Big Game Commercial
Services Board: 1. falsification of a Transporter Activ-
ity Report in 2018, . . . and 2. blocking of an airstrip in
2020 during hunting season[.]
3. Satisfactory resolution to the ongoing investigation
involving a sub legal sheep[.]
4. No new criminal charges, administrative charges or
investigations are initiated against Mr. Knaebel.
5. Submission of a satisfactory letter of intent from Mr.
Knaebel to WRST detailing specific steps he will take to
cooperate with: (1) law enforcement consistent with the
Alaska Administrative Code 12 AAC 75.440 as well as
expectations of professional behavior of a National Park
Service CUA holder; and (2) other commercial operators,
their clients, and visitors.[22]
Mow explained that the decision to issue a Big Game Transport CUA and then immediately
suspend it was based on the following:
(1) Mr. Knaebel has been charged with a criminal violation
associated with big game transport activities under State law; (2)
Mr. Knaebel committed a violation under his prior CUA by
failing to operate under conditions satisfactory to the Superin-
tendent; and (3) Mr. Knaebel committed a violation under his
prior CUA by failing to adequately and timely address material
and documented operational concerns expressed by NPS that
may negatively impact visitor experience, park resources and/or
staff and visitor safety.[23]
22Id. at 2-3.
23Id. at 2.
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The decision set out, in some detail, incidents of Knaebel’s alleged “[u]nprofessional and
unethical behavior toward Federal and State officials” and “[u]nprofessional and unethical
behavior toward other park users.”24
On June 11, 2021, plaintiff commenced this action by filing a complaint for injunctive
relief. Plaintiff asserts Administrative Procedure Act claims based on allegations that the
May 11, 2021 denial of its Big Game Transport CUA was arbitrary and capricious, that the
May 11, 2021 denial violated the Fourteenth Amendment, and that the May 11, 2021 denial
violated Policy Number 700-001.
Also on June 11, 2021, plaintiff filed the instant motion in which it seeks “a
preliminary injunction requiring NPS to rescind the May 11 denial and to grant [it] a 2021
Big Game Transport CUA under the same conditions as 2020 pending final order of the
court.”25 In its reply brief, plaintiff now also seeks a preliminary injunction “requiring NPS
to unsuspend the CUA and remove conditions 1-4.”26
Discussion
“‘A preliminary injunction is an extraordinary remedy never awarded as of right.’”
Calif. Trucking Ass’n v. Bonta, 996 F.3d 644, 652 (9th Cir. 2021) (quoting Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). “‘A plaintiff seeking a preliminary
24Id. at 3-9. In its reply to the instant motion, plaintiff challenges the merits of these
complaints.
25Complaint for Injunctive Relief at 8, Docket No. 1.
26Plaintiff’s Reply [etc.] at 22, Docket No. 14.
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injunction must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.’” Id. (quoting Winter, 555 U.S. at 20).
“Where[,]” as here, “the government is a party to a case in which a preliminary injunction
is sought, the balance of the equities and public interest factors merge.” Roman v. Wolf, 977
F.3d 935, 940–41 (9th Cir. 2020). The “likelihood of success on the merits is the ‘most
important factor’ in the preliminary injunction analysis, such that ‘if a movant fails to meet
this threshold inquiry, [the court] need not consider the other factors.’” Doe #1 v. Trump,
984 F.3d 848, 870 (9th Cir. 2020) (quoting Calif. v. Azar, 911 F.3d 558, 575 (9th Cir. 2018)).
In the Ninth Circuit, courts “follow[] a ‘sliding scale’ approach, in which ‘a stronger
showing of one element may offset a weaker showing of another.’” Id. (quoting hiQ Labs,
Inc. v. LinkedIn Corp., 938 F.3d 985, 992 (9th Cir. 2019)). Under the sliding scale approach,
if “the ‘balance of hardships . . . tips sharply towards the plaintiff,’ [the] plaintiff need only
show ‘serious questions going to the merits,’ rather than likelihood of success on the merits,
to warrant preliminary injunctive relief.” Roman, 977 F.3d at 941 (emphasis added) (quoting
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)).
Section 704 of the APA provides that “[a]gency action made reviewable by statute and
final agency action for which there is no other adequate remedy in a court are subject to
judicial review.” 5 U.S.C. § 704. In the Ninth Circuit, “the final agency action requirement
has been treated as jurisdictional.” San Francisco Herring Assoc. v. Dep’t of the Interior,
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946 F.3d 564, 571 (9th Cir. 2019). There is no suggestion here that the agency action in
question, the May 11, 2021 denial of plaintiff’s Big Game Transport CUA, is reviewable by
statute. The question here is whether that denial could be considered final agency action.
To be final, the agency action must “‘mark the consummation of the agency’s
decisionmaking process’” and be “action ‘by which rights or obligations have been
determined, or from which legal consequences will flow.’” Id. at 568 (quoting Bennett v.
Spear, 520 U.S. 154, 177–78 (1997)). The May 11, 2021 denial of plaintiff’s Big Game
Transport CUA was plainly not a final agency action, given that plaintiff appealed that
decision and Acting Regional Director Mow modified that decision. Thus, plaintiff’s
complaint, as currently pled, challenges a non-final agency action, which means that this
court lacks subject matter jurisdiction over plaintiff’s complaint. Without jurisdiction, the
court cannot grant a motion for a preliminary injunction. Shell Offshore Inc. v. Greenpeace,
Inc., 864 F. Supp. 2d 839, 842 (D. Alaska 2012).
The court is mindful that plaintiff’s focus for a preliminary injunction has shifted from
the May 11, 2021 decision to Mow’s June 29, 2021 decision. But, “[a] court’s equitable
power lies only over the merits of the case or controversy before it. When a plaintiff seeks
injunctive relief based on claims not pled in the complaint, the court does not have the
authority to issue an injunction.” Pacific Radiation Oncology, LLC v. Queen’s Medical Ctr.,
810 F.3d 631, 633 (9th Cir. 2015). Because plaintiff’s current complaint does not contain
any claims related to the June 29, 2021 decision, the court is without authority to grant
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plaintiff’s request for a preliminary injunction “requiring NPS to unsuspend the CUA and
remove conditions 1-4.”27
Conclusion
Plaintiff’s petition for a preliminary injunction28 is denied.
DATED at Anchorage, Alaska, this 7th day of July, 2021.
/s/ H. Russel Holland
United States District Judge
27Plaintiff’s Reply [etc.] at 22, Docket No. 14.
28Docket No. 3.
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