State v. Kluti Kaah Native Village of Copper Center , 831 P.2d 1270 ( 1992 )

OPINION

BURKE, Justice.

We granted this emergency petition to review the superior court’s issuance of a preliminary injunction which, essentially, replaced the State Board of Game’s seven day general moose hunt with a twenty-six day subsistence hunt for residents of the Kluti Kaah Native Village of Copper Center. The state contends that the superior court misapplied the “balance of hardships” test in issuing the injunction and, generally, overstepped its authority. Kluti Kaah responds that the court’s equitable powers were properly invoked to protect them from an illegal regulation and that the court crafted an injunction which adequately protected the interests of the state and the general public. We agree with the state that the injunction should not have been issued. Specifically, we conclude that the superior court failed to give due consideration to the state’s interest in developing and maintaining a uniform system of game allocation and that its decree did not adequately protect the interests of other subsistence hunters or guard against depletion of the moose population.¹

I

The parties are in substantial agreement regarding the facts of this case, at least as concerns the injunction. In March 1991, the Board of Game met and after lengthy discussion, established a seven day season to hunt moose in Game Management Unit 13. The hunt was open to both sport and subsistence hunters and was scheduled for September 5-11, 1991. The length of the hunt was designed to allow for a harvest of 600 moose and was partly based on estimates of average times spent in the field by successful and unsuccessful hunters.

Transcripts of the Board’s discussion make it clear that the Board originally wanted to have a short season for sport hunters and a longer “Tier II hunt” for subsistence hunters.² In past seasons, this was done. The Department of Law, however, advised the Board that a separate subsistence hunt would not be legal if there were enough moose to support both a sport and subsistence hunt. This advice was based on the Department’s interpretation of Alaska subsistence law following McDowell v. State, 785 P.2d 1 (Alaska 1989). Ultimately, the Board abandoned the idea of separate hunts and adopted the seven day general hunt.

In the summer of 1991, the residents of Kluti Kaah sought a preliminary injunction prohibiting the state’s enforcement of the seven day hunt and requesting that the court establish a longer subsistence hunt for their benefit. Kluti Kaah filed a single affidavit with the superior court to support its claim for injunctive relief.³

On August 16, 1991, Judge Katz issued the preliminary injunction giving rise to this petition after finding that (1) the harm to Kluti Kaah residents in missing their traditional hunt would be irreparable; (2) the interests of the state and the public could be adequately protected; and (3) the case raised serious and substantial questions. The injunction prohibited the state from enforcing the seven day moose hunt against the 267 residents of Kluti Kaah. The injunction then provided that “the Board [of Game] may enforce a season of no less than August 25, 1991 to September 20, 1991.” The superior court entered a supplemental order, on August 21, that limited the Kluti Kaah residents to a harvest of no more than forty moose and required that they obtain permits.

We issued a stay of the preliminary injunction on August 23, 1991 and granted the state’s petition for review on August 29, 1991. On August 23, seven other Native villages sought expedited relief from the superior court in order to partake in the expanded hunt.

II

In her order,⁴ Judge Katz specifically applied the “balance of hardships” approach to preliminary injunctions that we adopted in A.J. Industries, Inc. v. Alaska Public Service Comm’n, 470 P.2d 537 (Alaska 1970), modified in other respects, 483 P.2d 198 (Alaska 1971):

[T]he rule requiring a clear showing of probable success applies in situations where the party asking for relief does not stand to suffer irreparable harm, or where the party against whom the injunction is sought will suffer injury if the injunction is issued, [but] a different rule applies where the party seeking the injunction stands to suffer irreparable harm and where, at the same time, the opposing party can be protected from injury....

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This approach is termed the “balance of hardships” approach. The balance of hardships is determined by weighing the harm that will be suffered by the plaintiff if an injunction is not granted, against the harm that will be imposed upon the defendant by the granting of an injunction.

Id. at 540 (footnotes omitted). We have since distilled the “balance of hardships” rule of A.J. Industries to a three-part test: “(1) the plaintiff must be faced with irreparable harm; (2) the opposing party must be adequately protected; and (3) the plaintiff must raise ‘serious’ and substantial questions going to the merits of the case; that is, the issues raised cannot be ‘frivolous or obviously without merit.’ ” Messerli v. Department of Natural Resources, 768 P.2d 1112, 1122 (Alaska 1989) (citing and quoting Alaska Public Utilities Comm’n v. Greater Anchorage Area Borough, 534 P.2d 549, 554 (Alaska 1975)).

We recently applied this rule in reviewing a temporary restraining order which benefited commercial fishermen at the expense of subsistence users. See State v. United Cook Inlet Drift Ass’n, 815 P.2d 378 (Alaska 1991). In reversing the order, we noted that the “serious and substantial question” standard:

applies only where the injury which will result from the temporary restraining order or the preliminary injunction can be indemnified by a bond or where it is relatively slight in comparison to the injury which the person seeking the injunction will suffer if the injunction is not granted.

Id. at 378-79 (citations omitted).

1. Irreparable Injury⁵

The superior court found that the residents of Kluti Kaah could suffer two types of harm if the injunction were not issued: (1) the residents’ 1991-92 winter subsistence needs for moose could go unfulfilled, and (2) they would be denied the ability to pass on to their children their traditional and customary method of subsistence hunting.

The state argues that Kluti Kaah’s alleged injury is neither certain nor irreparable. Kluti Kaah’s factual showing in support of its claim of irreparable harm consisted, in its entirety, of a single affidavit containing the obviously self-interested statements of a single village resident. Such evidence cannot establish with any genuine certainty that Kluti Kaah’s residents could not meet their subsistence needs for moose during the shortened hunt. However, without delving into the merits of the case, we are unable to definitely conclude that Kluti Kaah has failed to establish irreparable injury as a result of the shorter hunt. Judge Katz noted the weakness in' Kluti Kaah’s showing, but still ruled that Kluti Kaah had shown irreparable injury. We will assume, for purposes of this opinion, that her ruling on this point was correct.

2. Adequate Protection

In her order, Judge Katz stated:

Should the only change in the hunt be the extension of the season for the members of Kluti Kaah, the court can perceive no adverse impact on the state from a procedural standpoint. Nor would the public in general or sports hunters in particular suffer any material infringement of hunting opportunity or diminution of the moose population. With a cap of 40 moose, any advantage obtained by the people of Kluti Kaah would be de minimis.

The state strenuously disagrees with the court’s assessment of the harm caused by the issuance of the injunction. It claims that the injunction interferes with its role as protector of the resource. It also maintains that other subsistence users, whom it represents and whose interests the court must consider, are inadequately protected by this order.⁶ We agree.

The trial court failed to consider the clear ramifications of its decision. Although the forty moose limit imposed by the court may adequately protect the moose population if no other similarly situated groups seek an extended hunting season, the superior court can in no way ensure that others will not seek similar relief. If this distinct possibility, in fact, occurs, we question the court’s acumen, given the procedural and substantive limitations of a trial setting, to accurately determine when the moose population is taxed.⁷

It was evident at the time the court issued the injunction that Kluti Kaah residents were being advantaged when compared to other subsistence hunters. They would not have to compete with the others, could be more opportunistic in deciding when to hunt, and would have more time in which to bag their limit. It should have also been evident that other similarly situated groups would want the same advantages and would begin a rush to the courthouse.⁸ This likelihood has now been borne out by the seven other Native villages that have filed suit.

In determining whether to issue a preliminary injunction, the trial court should have considered the threat that multiple injunctions would represent to the moose population and the problems it would create for orderly game allocation.⁹ Its failure to do so constitutes an abuse of discretion.

3. “Serious Question” Standard

The party seeking a preliminary injunction is required to make a clear showing of probable success on the merits when they do “not stand to suffer irreparable harm, or where the party against whom the injunction is sought will suffer injury if the injunction is issued.” A.J. Industries, 470 P.2d at 540.

The trial court explicitly applied the “serious and substantial question” standard because it concluded that the balance of hardships clearly tipped toward the residents of Kluti Kaah. Our assessment of the balance of hardship is considerably different, and therefore we conclude that the trial court applied the wrong standard to the case.

Accordingly, we hold that the superior court failed to adequately weigh and protect the interests of the state, other hunters, or the resource in issuing its injunction. Since the state’s interests were significantly harmed by the injunction, the trial court should have also required Kluti Kaah to make a clear showing of probable success on the merits. We therefore VACATE the injunction and return the case to the superior court for further proceedings on the merits.

1 . Although both sides forcefully argue the merits of their underlying positions concerning the legality of the Board of Game regulation, we find it unnecessary to address their arguments at this stage of the litigation.

2 . We explained the "tiers" established by our subsistence law in Madison v. Alaska Dep’t of Fish & Game, 696 P.2d 168, 174 (Alaska 1985). There are potentially two tiers of subsistence users under AS 16.05.258(c). The first tier includes all subsistence users. Under the statute, all subsistence uses have priority over sport and commercial uses "if the harvestable portion [of a fish or game population] is not sufficient to accommodate all consumptive uses of the stock or population, but is sufficient to accommodate subsistence uses of the stock or population." AS 16.05.258(c) (1987). If the statutory priority given all subsistence users still results in too few fish or game for all subsistence uses, then the Board is authorized to establish a second tier of preferred subsistence users based on legislative criteria expressed in AS 16.05.258(c)(1), (2) and (3), namely, customary and direct dependence on the resource, local residency, and availability of alternative resources.

It appears that the expression "Tier II hunt” has been adopted by fish and game regulators to refer to hunts open exclusively to subsistence users. Inasmuch as this term derives from the language we employed in Madison, it is not strictly accurate. A hunt open to all subsistence hunters is actually a tier I hunt.

3 . In the affidavit, Kenneth Johns, a member of the Tribal Council for Kluti Kaah Native Village, claimed that the season was simply a "sport hunt” and did not afford his people an opportunity to conduct their traditional moose hunt or pass on their heritage to their children. He also predicted that the short hunting season would not provide sufficient moose to meet the subsistence needs of the Kluti Kaah residents.

4 . In reviewing Judge Katz' order, we apply an abuse of discretion standard. In Alaska Public Utilities Comm’n v. Greater Anchorage Area Borough, 534 P.2d 549 (Alaska 1975), we quoted with approval the following standard of review:

It is well settled that the granting of a temporary injunction, pending final hearing, is within the sound discretion of the trial court; and that, upon appeal an order granting such an injunction will not be disturbed unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion.

Id. at 557 (quoting Prendergast v. New York Tel. Co., 262 U.S. 43, 50-51, 43 S.Ct. 466, 469, 67 L.Ed. 853 (1923)).

5 . "Irreparable injury" "includes an injury, whether great or small, which ought not to be submitted to, on the one hand, or inflicted, on the other; and which, because it is so large or so small, or is of such constant and frequent occurrence, or because no certain pecuniary standard exists for the measurement of damages, cannot receive reasonable redress in a court of law.” Black’s Law Dictionary, 786 (6th Ed.1990).

6 . Kluti Kaah argues that other hunters are neither helped nor harmed by the injunction because the seven day general hunt remains in effect for them. They also claim that the State presented no evidence at trial showing any harm to the resource due to the injunction. Finally, they argue that Judge Katz was not required to fashion a remedy that includes everyone who may have been injured by the Board’s action, but merely to provide relief for those before her court. While Kluti Kaah’s arguments may be correct, they miss the point of the "adequate protection" requirement.

7 . Judge Holland addressed this concern in John v. Alaska, A85-698, Unpublished Order at 5 (D.Alaska Jan. 19, 1990):

Firstly, the Board must bring considerable expertise to the complex fish management questions that come before it. This court does not have that expertise. While the court is quite comfortable ... in its role as the reviewer of agency rule-making ..., the court should not — for lack of expertise — make the fine scientific wildlife management decisions that are called for by state and federal law. In short, the fish and game management ought to be done by the fish and game managers.

See also Meier v. State, 739 P.2d 172, 174 (Alaska 1987).

8 . The dissent maintains that our "rush to the courthouse fears” may be allayed by the use of consolidation and class-certification. In fact, Judge Katz made no attempt to certify as a class the other subsistence users of the resource or consolidate the litigation. Therefore, we fail to see how the mere existence of these well-recognized procedures repairs the defects of the injunction in this case.

9 .In Alaska Public Utilities Comm'n, 534 P.2d at 553, we noted that:

the propriety of issuing an injunction turns, in part, on weighing the demands of justice in the individual case against the interest in avoiding undue interference with the administrative process. In cases such as [this] one where an interim rate increase is being sought by a utility, there is the danger of a too frequent resort to the injunction by the superior courts which, in turn, might cause the administrative commission automatically to grant such increases (having been effectively deprived of any real discretion in the matter). (emphasis added).

A similar concern is apparent in the area of game management. We also note that, in this case, the superior court’s preliminary injunction was not only prohibitory in nature (i.e., precluding the state from enforcing its seven-day hunt against Kluti Kaah residents) but was also mandatory in that it established a 26-day moose hunt exclusively for Kluti Kaah. It is well settled that:

a mandatory injunction will seldom be granted before final hearing, and ... should be granted only in extreme or exceptional cases [and] ... with great caution.

42 Am.Jur.2d Injunctions § 21 (1969).