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Docket Number

No. 6445-A.

Motions

Motion for preliminary injunction : Denied

Attorney(S)

P.J. Gilmore, Jr., U.S. Atty., Stanley D. Baskin, Asst. U.S. Atty., Juneau, Alaska, for plaintiff. W.C. Arnold, Seattle, Wash., R.E. Robertson, Juneau, Alaska, for defendant.

Judges

FOLTA, District Judge.

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Smart Summary

Summary of Opinion: United States v. Libby, McNeill Libby (D. Alaska, Aug. 9, 1951)

Factual and Procedural Background

The United States, acting on behalf of the Indians of the Hydaburg Indian Reservation in Alaska, brought suit to enjoin the defendant from fishing in the waters of the Hydaburg Reservation. The Secretary of the Interior had made an order on November 30, 1949 creating the Hydaburg Indian Reservation pursuant to Section 2 of the Act of May 1, 1936 (cited in the opinion as 48 U.S.C.A. § 358a), and the complaint alleges that the defendant's trap site was included within the reservation boundaries. The defendant admits threatening to engage in fishing with the trap and has in fact reinstalled its trap in reservation waters.

Procedurally, plaintiff sought a preliminary injunction. On May 21, 1951, the court denied plaintiff's initial motion for a preliminary injunction without prejudice because the fishing season had not yet opened (opening date noted as August 6). A second hearing occurred on August 4 after plaintiff demonstrated that defendant had reinstalled its trap and intended to fish during the current season (ending September 1). The defendant had operated its trap at the same site in Tlevak Strait since 1926.

Legal Issues Presented

Whether a preliminary injunction should issue to enjoin the defendant from operating its trap and fishing in the waters alleged to be within the Hydaburg Indian Reservation pending trial.
Whether the Secretary of the Interior's order creating the Hydaburg Indian Reservation is valid (as attacked on multiple statutory and procedural grounds by the defendant).
Whether, even if the reservation order is valid, the order limits the public and common right of fishery in the waters at issue.

Arguments of the Parties

Defendant's Arguments

The order establishing the reservation is invalid for multiple reasons:
- (a) The Secretary failed to follow the Administrative Procedure Act (cited as 5 U.S.C.A. § 1001 et seq.) and Department procedures (cited as 43 C.F.R. § 50.152 and 12 F.R. 6737), specifically by giving no notice, holding no hearing, and affording no opportunity for protests or to be heard.
- (b) The reservation includes tide lands or navigable waters, contrary to the Act of May 14, 1898 (cited as 48 U.S.C.A. § 411), which the defendant contends prohibits such inclusion.
- (c) The lands and waters included had not been reserved for Indian use under the statutory provisions referenced in Section 2 of the Act of May 1, 1936 (48 U.S.C.A. § 356, § 358, and related statutes) and had never been used or occupied by Indians.
- (d) The areas in question were part of the Tongass National Forest by prior proclamations and therefore were not "additional public lands adjacent" as required by Section 2 of the May 1, 1936 Act.
- (e) The defendant has been operating the trap at the site since 1926 under various permits: a War Department permit, a Territory of Alaska license, and a special use permit from the U.S. Forest Service (administrator of the Tongass National Forest).
Even if the reservation order is valid, it cannot curtail the public and common right of fishery.
If a preliminary injunction is granted and defendant ultimately prevails, defendant may be unable to recover damages from plaintiff's wards or from plaintiff; conversely, if a preliminary injunction is denied and plaintiff ultimately prevails, damages could be recovered from defendant and are readily ascertainable because trap operators are required to report salmon catch numbers (cited as 50 C.F.R. § 102.7).
Because substantial redress can be obtained by payment of money and because the injunction would cause grossly disproportionate hardship to defendant (including impairment of defendant's canning operations and substantial expenditures already incurred), injunctive relief should be denied.
No irreparable injury would result to plaintiff from denying the injunction; plaintiff has an adequate remedy at law.

Plaintiff's Position (as reflected in the opinion)

Plaintiff seeks a preliminary injunction to prevent the defendant from fishing in reservation waters and to protect reservation Indians' interests in the salmon that would be taken by defendant's trap. Plaintiff demonstrated that defendant had reinstalled the trap and intended to operate it during the current season.
The opinion notes that plaintiff's primary concern is the loss to its wards of salmon that defendant would catch.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972	Cited for the principle that when a plaintiff's right is unclear or doubtful, and when the balance of hardship and the adequacy of monetary compensation favor the defendant, a preliminary injunction should be denied.	The court relied on this precedent as part of the governing test for issuing a preliminary injunction and found the defendant's showing sufficient under that test to deny injunctive relief.
Harrisville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. 1208	Cited as supporting the same general test concerning preliminary injunctions: consideration of the clarity of plaintiff's right, adequacy of legal remedy, and balance of hardships.	Used by the court as authority for applying the injunction test described in the opinion; the court applied that test and denied the motion.
Mayo v. Lakeland Highlands Cannery Co., 309 U.S. 310, 60 S.Ct. 517, 84 L.Ed. 774	Cited for the same formulation of the equitable test for preliminary injunctions where rights may be doubtful and monetary damages may be adequate.	The court invoked this authority as part of the Supreme Court decisions establishing the applicable standard and concluded the defendant met that standard.
Brown v. Purvin, D.C., 52 F. Supp. 348	Cited as a supporting district-court decision consistent with the principle that injunctions should be denied where rights are doubtful and the balance of hardships and adequacy of legal remedies favor denial.	The court cited this decision along with the Supreme Court cases and applied the combined test to deny the preliminary injunction.

Court's Reasoning and Analysis

The court's analysis proceeded as follows:

Fact findings and context:
- Defendant has operated the trap at the disputed site since 1926 in Tlevak Strait.
- Plaintiff seeks to prevent defendant from operating the trap; defendant admits the intent to fish and has reinstalled the trap.
Assessment of defendant's factual and legal showing:
- The defendant produced evidence and arguments that (a) raise substantial doubts about the validity of the Secretary's reservation order (points (c), (d), and (e) in the defendant's contentions), and (b) demonstrate significant potential monetary loss and hardship if an injunction were granted (loss to cannery operations, impairment of capital investment, and large sums already expended and obligated for the season).
- The court inferred that plaintiff's wards might choose to operate a trap at the same site but had neither constructed nor acquired a trap at the time of the hearings.
Nature of plaintiff's claimed injury:
- The court observed that plaintiff's chief concern was the loss of salmon to its wards rather than continuing trespass; the court concluded that, as to the loss of salmon, monetary damages could provide substantial redress and therefore the injury was not irreparable.
Governing legal standard:
- The court cited Supreme Court decisions summarizing the test for granting preliminary injunctions: when a plaintiff's right is not clear or is doubtful, when the defendant raises grave doubts as to the right, when preservation of the status quo by injunction would impose far greater loss and hardship on the defendant than denial would impose on the plaintiff, and when plaintiff may be adequately compensated in money, the preliminary injunction should be denied.
Application of the standard and conclusion:
- Applying the cited test to the present record, the court concluded that the defendant's showing met the standard for denying injunctive relief: plaintiff's asserted right was not clear, defendant had demonstrated significant hardship and doubtful validity of the reservation order, and monetary compensation would be an adequate remedy for plaintiff's primary asserted loss.

Holding and Implications

Holding: The court held that the plaintiff's motion for a preliminary injunction should be DENIED.

Implications:

Direct effect on the parties: Defendant is not enjoined and therefore, subject to final judgment and any applicable regulations or rights not altered by this interlocutory ruling, may proceed with operations pending trial. Plaintiff remains able to pursue its claims in the underlying action and, if it prevails at trial, to seek legal remedies, including monetary damages.
Reasoning limits of the holding: The denial was based on the court's application of established equitable principles governing preliminary injunctions—specifically, the doubt as to plaintiff's asserted right, the adequacy of money damages for plaintiff's principal asserted injury (loss of salmon), and the disproportionate hardship that an injunction would impose on defendant.
Precedential effect: The opinion applies existing Supreme Court and district court authority to the facts; the opinion does not announce a new legal rule beyond the cited standards and does not indicate it sets new precedent.

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UNITED STATES v. LIBBY, McNEILL LIBBY.

FOLTA, District Judge.

By this suit the plaintiff, acting on behalf of the Indians of the Hydaburg Indian Reservation in Alaska, seeks to enjoin the defendant from fishing in the waters of the reservation and pending trial has renewed its application for a preliminary injunction. Upon the first hearing, plaintiff's motion for such an injunction was denied on May 21, 1951, without prejudice because defendant could in no event engage in fishing until the season opened on August 6. Upon the second hearing held on August 4, plaintiff has shown that the defendant has reinstalled its trap in reservation waters and is about to engage in fishing during the current season which ends on September 1.

Defendant has operated its trap on the identical site involved in this controversy, in the waters of Tlevak Strait, an arm of the pacific Ocean, since 1926.

The complaint alleges that on November 30, 1949, under the authority conferred upon him by Section 2 of the Act of May 1, 1936, 49 Stat. 1250, 48 U.S.C.A. § 358a, the Secretary of the Interior made an order creating the Hydaburg Indian Reservation, 14 F.R. 7318, and that the defendant's trap site, along with other lands, was included within the boundaries thereof; that the defendant threatens to enter the reservation and engage in fishing for salmon by means of said trap, which incidentally the defendant admits, and that unless enjoined, the defendant will take a great number of salmon from the waters of said reservation.

Section 2 of the Act of May 1, 1936, supra, provides: "The Secretary of the Interior is hereby authorized to designate as an Indian reservation any area of land which has been reserved for the use and occupancy of Indians or Eskimos by section 356 of this title, or by section 14 of the Act of March 3, 1891 ( 26 Stat. 1101), or section 358 of this title, or which was reserved prior to May 1, 1936, under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory:"

Defendant contends that there is a want of equity in the complaint and in support thereof, asserts as follows:

1. The order establishing the reservation is invalid because: (a) the Secretary of the Interior did not comply with the Administrative procedure Act, 5 U.S.C.A. § 1001 et seq., or the established procedures of the Department itself, 43 C.F.R. § 50.152, 12 F.R. 6737, particularly in that no notice was given or hearing held and no opportunity afforded the defendant and others adversely affected by the order to file protests and to be heard thereon; (b) it includes tide lands or navigable waters, in contravention of the Act of May 14, 1898, 48 U.S.C.A. § 411, which declares that such lands or waters shall be held by the United States in trust for the future state; (c) it includes lands and waters which had not only not been reserved for the use and occupancy of the Indians by Section 8 of the Act of May 17, 1884, 23 Stat. 26, 48 U.S.C.A. § 356; or by Section 14 of the Act of March 3, 1891, 26 Stat. 1100, 1101, or Section 358 of Title 48 U.S.C.A., or by any executive order placing such lands and waters under the jurisdiction of the Department of Interior or any bureau thereof, but also had never been used or occupied by Indians, in consequence of which the inclusion of such lands in the Reservation contravenes the provisions of Section 2 of the Act of May 1, 1936, quoted above; (d) the lands and waters included in the reservation were not, within the meaning of Section 2 of the said Act of May 1, 1936, "additional public lands adjacent" to any area of land which had prior to May 1, 1936 "been reserved * * * by * * executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof" but on the contrary, the lands were, at the time the order creating said reservation was made and for many years prior thereto, a part of the Tongass National Forest, Proclamations Sept. 10, 1907, Feb. 16, 1909, 35 Stat. 2152, 2226, and, hence, their inclusion within said reservation was in violation of Section 2 of said act; and (e) the trap at the site involved in the controversy has been operated since 1926 under a permit issued by the War Department, a license from the Territory of Alaska, and a special use permit from the United States Forest Service, which administers the Tongass National Forest.

2. That even though the order creating the reservation is valid, it cannot limit or curtail the public and common right of fishery.

3. That if a preliminary injunction is granted and the defendant ultimately prevails, it will be unable to recover damages from plaintiff's wards and may not be able to recover from plaintiff, but that if a preliminary injunction is denied and plaintiff finally prevails the damages may not only be recovered from the defendant, in view of its proven financial ability, but may readily be ascertained because trap operators are required by 50 C.F.R. § 102.7 to report to the Fish Wildlife Service the number and species of salmon caught in each trap during the fishing season.

4. That since substantial redress can be made to the plaintiff by the payment of money and since the issuance of a preliminary injunction would subject the defendant to grossly disproportionate hardships, injunctive relief should be denied;

5. That no irreparable damage would ensue to the plaintiff; and

6. That plaintiff has an adequate remedy at law.

From the showing made by the defendant upon this and the previous hearing, it may be inferred that, although plaintiff's wards may themselves decide to operate a trap on the identical site, they have neither constructed nor acquired a trap; and the defendant argues that since, in any event, a trap could hardly be installed and put into operation before the current fishing season ends on September 1, the granting of a preliminary injunction, would be of slight benefit to the plaintiff. Defendant has also shown that if a preliminary injunction is granted, it will suffer great pecuniary loss and hardship because (a) the trap and site involved are an integral part of the defendant's canning operations at Craig, Alaska, and a source of supply of salmon, without which the operation would be unprofitable and defendant's capital investment of $345,000 in said plant would be impaired; (b) no other comparable site is available; and (c) it has, in connection with making the usual preparations for the operation of its cannery for the current season, expended and incurred obligations totaling $270,000, and has expended $3,500 in reconditioning and installing its trap on the site referred to.

In addition, defendant's showing appears to be sufficient to sustain its contentions 3 to 6 and by its grounds (c), (d) and (e) in support of its first contention, to create grave doubt as to the validity of the reservation order and thus of the very existence of the right asserted.

It should be noted that in seeking a preliminary injunction, plaintiff is chiefly concerned with the loss to its wards of the salmon that defendant's trap would catch rather than with the continuing character of the trespass involved in the taking of the salmon for which, of course, substantial redress could be had by the payment of money. Thus it would appear that, so far as the loss of salmon is concerned, the damage is not irreparable and that there is an adequate remedy at law.

The question, therefore, before the Court is whether in this situation a preliminary injunction should be granted. From the decisions of the Supreme Court, the test appears to be that where the plaintiff's right is not clear or is somewhat doubtful or where the defendant raises grave doubts as to the validity or existence of the right asserted, and the preservation of the status quo would result in far greater loss and hardship to the defendant if the injunction is granted than to the plaintiff if it is issued, and the plaintiff may be adequately compensated in money, a preliminary injunction should be denied. Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972; Harrisville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. 1208; Mayo v. Lakeland Highlands Cannery Co., 309 U.S. 310, 60 S.Ct. 517, 84 L.Ed. 774; Brown v. Purvin, D.C., 52 F. Supp. 348.

I am of the opinion that the defendant's showing is sufficient to meet this test and that the motion for a preliminary injunction should be denied.

UNITED STATES v. LIBBY, McNEILL LIBBY, (D.Alaska 1951)