                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

AKIACHAK NATIVE COMMUNITY, et al., :
                                   :
       Plaintiffs,                 :                      Civil Action No.:      06-0969 (RC)
                                   :
       v.                          :                      Re Document No.:       139
                                   :
SALLY JEWELL,                      :
Secretary of the Interior, et al.  :
                                   :
       Defendants.                 :
                                   :
       and                         :
                                   :
STATE OF ALASKA,                   :
                                   :
       Defendant-Intervenor        :

                           MEMORANDUM OPINION & ORDER

  GRANTING IN PART AND DENYING IN PART ALASKA’S MOTION TO STAY PENDING APPEAL

                                      I. INTRODUCTION

       This case involved a challenge by certain Alaskan Native Tribes (“Tribes”) to a

regulation promulgated by the Secretary of the Interior (“Secretary”) regarding taking land into

trust on behalf of all Indian Tribes, 25 C.F.R. § 151.1, pursuant to section 5 of the Indian

Reorganization Act, 25 U.S.C. § 465. See Akiachak Native Cmty. v. Salazar, 935 F. Supp. 2d

195, 197 (D.D.C. 2013). Now pending before the Court is the State of Alaska’s (hereinafter

referred to as “Alaska”) Motion for a Stay and Injunction pending appeal of the Court’s

September 30, 2013 Order in the D.C. Circuit. See ECF No. 139. For the reasons that follow,

the Court will grant in part and deny in part Alaska’s Motion.
                              II. PROCEDURAL BACKGROUND

       This case involved a challenge to a regulation promulgated by the Secretary, governing

the procedures for the United States to take land into trust for individual Indians and tribes, 25

C.F.R. § 151.1. This Court concluded on March 31, 2013, that the Alaska exception within the

rule was arbitrary and capricious and violated the Indian Reorganization Act (“IRA”), 25 U.S.C.

§ 476(g). See Mem. Op. 23‒25, ECF No. 109. Though the Court granted the plaintiffs’ motion

for summary judgment, it ordered the parties to submit supplemental briefs discussing whether

the Alaska exception contained in 25 C.F.R. § 151.1 could be severed from the remainder of the

land into trust regulatory scheme. See Order 2, ECF No. 115. After considering those

supplemental briefs, the Court concluded that the last sentence could be severed from the

remainder of the regulation, and that vacatur of that final sentence—the Alaska exception—was

warranted. See Mem. Op. 8‒9, ECF No. 130. The Court accordingly entered an order that

severed and vacated the final sentence of 25 C.F.R. § 151.1 from the regulation—which provided

that “[t]hese regulations do not cover the acquisition of land in trust status in the State of Alaska,

except acquisitions for the Metlakatla Community of the Annette Island Reserve or it[s]

members.” See Order 1, ECF No. 131. As such, the current status quo is that there is no Alaska

exception to the land into trust regulations, 25 C.F.R. § 151.1. The case is currently on appeal in

the D.C. Circuit. See Notice of Appeal, ECF No. 132. 1

       Meanwhile, on April 30, 2014, the Bureau of Indian Affairs (“BIA”) published a

Proposed Rule, proposing to formally remove the Alaska exception from 25 C.F.R. § 151.1, and

begin considering the acquisition of lands into trust on behalf of Alaska Native Tribes and


       1
              On June 18, 2014, the D.C. Circuit dismissed the Department of the Interior’s
appeal. See ECF No. 144. As such, only the State of Alaska’s case remains on appeal before the
D.C. Circuit.


                                                  2
individuals. See Proposed Rule, Land Acquisitions in the State of Alaska, 79 Fed. Reg. 24,648,

24,649 (May 1, 2014). On May 9, 2014, Alaska filed a motion for a Stay and Injunction pending

appeal in this case. See ECF No. 139. Alaska specifically asks this Court to stay its September

30, 2013 Order and to “enjoin the Secretary’s rulemaking activities, including accepting

comments on the recently proposed rule, and enjoin the Secretary from accepting and processing

applications to take land into trust for Alaska tribes, pending resolution of the appeal.” See

Alaska’s Mot. Stay 3, ECF No. 139. Because the Court concludes that the Proposed Rule and

the process of accepting applications for taking land into trust does not constitute irreparable

harm, it will deny Alaska’s motion to enjoin the Secretary from engaging in those activities.

However, because the Court concludes that irreparable harm to Alaska will result if the Secretary

is permitted to actually take land into trust for Alaskan tribes, it will grant Alaska’s motion on

that ground, and enjoin the Secretary from taking land into trust pending disposition of the

appeal in the D.C. Circuit. 2

                                         III. ANALYSIS

                            1. Factors to consider on a Motion to Stay

       Alaska asks this Court to “stay its decision and enjoin the Secretary’s rulemaking

activities, including accepting and processing applications to take land into trust for Alaska

tribes, pending resolution of the appeal.” See Alaska’s Mot. Stay 6. Under Federal Rule of Civil

Procedure 62(c), “[w]hile an appeal is pending from an interlocutory order or final judgment that

grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an

injunction on terms for bond or other terms that secure the opposing party’s rights.” See FED. R.


       2
                The Court’s ruling today does not apply to the Metlakatla Indian Community of
the Annette Island Reserve or its members, as they were an exception to the Alaska exception
that the Court severed. See 25 C.F.R. § 151.1; 79 Fed. Reg. 24, 648, 24,649.


                                                  3
CIV. P. 62(c). In the D.C. Circuit, a court assesses four factors when considering a motion to stay

and injunction pending appeal: (1) the moving party’s likelihood of success on the merits of its

appeal, (2) whether the moving party will suffer irreparable injury, (3) whether issuance of the

stay would substantially harm other parties in the proceeding, and (4) the public interest. See

Wash. Met. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977);

accord Mylan Labs. Inc. v. Leavitt, 495 F. Supp. 2d 43, 46 (D.D.C. 2007); Shays v. FEC, 340 F.

Supp. 2d 39, 44 (D.D.C. 2004). “[I]t is the movant’s obligation to justify the court’s exercise of

such an extraordinary remedy [as a stay].” Cuomo v. U.S. Nuclear Regulatory Comm’n, 772

F.2d 972, 978 (D.C. Cir. 1985).

       Before the Supreme Court decided Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7

(2008), the four factors for a stay and injunctive relief were analyzed on a sliding scale. See,

e.g., Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (“Before Winter, this court and

others had allowed that a strong showing on one factor could make up for a weaker showing on

another.”); Cuomo, 772 F.2d at 974 (“[A] movant need not always establish a high probability

of success on the merits. Probability of success is inversely proportional to the degree of

irreparable injury evidenced. A stay may be granted with either a high probability of success and

some injury, or vice versa.”). Since Winter, however, it is unclear whether the likelihood of

success on the merits factor is a threshold inquiry that must be addressed before the other factors.

As the D.C. Circuit recently explained, “[i]n this circuit, it remains an open question whether the

‘likelihood of success’ factor is an ‘independent, free-standing requirement,’ or whether, in cases

where the three other factors strongly favor issuing an injunction, a plaintiff need only raise a

‘serious legal question’ on the merits.” Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014)

(quoting Sherley, 644 F.3d at 393, 398); accord Kingman Park Civic Ass’n v. Gray, 956 F. Supp.




                                                  4
2d 230, 241 (D.D.C. 2013) (“Recently, the continued viability of [the sliding scale] approach has

been called into some doubt, as the United States Court of Appeals for the District of Columbia

Circuit has suggested, without holding, that a likelihood of success on the merits is an

independent, free-standing requirement for a preliminary injunction.”); Guttenberg v. Emery, No.

13-2046, 2014 WL 1100982, at *8 (D.D.C. Mar. 19, 2014) (“The D.C. Circuit has noted this

issue, but it has not yet decided whether the sliding-scale analysis made it through the Winter.”).

Given the uncertainty, courts in this jurisdiction have continued to analyze motions for

preliminary injunctions under the sliding scale approach, because “[i]f a plaintiff cannot meet the

less demanding sliding scale standard, then it cannot satisfy the more stringent standard alluded

to by the Court of Appeals.” See Kingman Park Civic Ass’n, 956 F. Supp. 2d at 241;

Guttenberg, 2014 WL 1100982, at *9 (“Whether or not Winter spelled the end of the sliding-

scale analysis, one thing is clear: plaintiffs here must at least demonstrate that irreparable injury

is likely in the absence of an injunction.”) (emphasis in original). As such, this Court will also

proceed by analyzing the factors on a sliding scale, absent contrary binding authority from the

D.C. Circuit. Therefore, “[t]he motion to stay may be granted when a ‘serious legal question is

presented, when little if any harm will befall other interested persons or the public, and when

denial of the order would inflict irreparable injury on the movant.’” Shays, 340 F. Supp. 2d at 45

(quoting Wash. Metro. Area Transit Comm’n, 559 F.2d at 844).

                                2. Application of the Four Factors

                               a. Likelihood of success on the merits

       With respect to the first factor, Alaska argues that it is likely to prevail on the merits of its

appeal, arguing that the Court’s decision misapprehends the comprehensive nature of the Alaska

Native Claims Settlement Act, misapprehends the reasons Congress did not repeal the land-to-




                                                  5
trust statute, and does not give appropriate weight to the Supreme Court’s decision in Alaska v.

Native Village of Venetie, 522 U.S. 520 (1998). See Alaska’s Mot. Stay 8. Meanwhile, the

plaintiffs and the Secretary argue that this is Alaska’s third time making these arguments to this

Court, and a party offering a “regurgitation of rejected arguments,” cannot establish a likelihood

of success on the merits. See Shays, 340 F. Supp. 2d at 46. 3 For the third time, the Court

remains unconvinced of Alaska’s position, for the reasons stated in its Memorandum Opinion

granting the plaintiffs’ motion for summary judgment and its Memorandum Opinion denying

defendants’ motions for reconsideration. See Mem. Op., ECF No. 109, Mem. Op. 2‒3, ECF No.

130.

       However, as the D.C. Circuit has explained, a movant “need not establish an absolute

certainty of success [on the merits]: It will ordinarily be enough that the [movant] has raised

serious legal questions going to the merits, so serious, substantial, difficult as to make them a fair

ground of litigation and thus for more deliberative investigation.” Population Inst. v.

McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986) (quoting Wash. Metro. Area Transit Comm’n,

559 F.2d at 844). Though the Court disagrees with Alaska’s position, and finds there to be a low

likelihood of success on the merits, it recognizes that the case presented difficult and substantial

legal questions regarding the balance between federal and state regulation of Indian land, and

that its decision was at times, a close one. See, e.g., Mem. Op. 18, ECF No. 109 (“There may be

a tension between ANCSA’s elimination of most trust property in Alaska and the Secretary’s

       3
                In the Memorandum Opinion disposing of Alaska’s and the Secretary’s Motions
for Reconsideration, the Court acknowledged and analyzed a new argument raised by the
Secretary, regarding how the Court’s decision regarding its interpretation of 25 U.S.C. § 476(g)
could destabilize other federal programs regarding Indian tribes. See Mem. Op. 3‒6, ECF No.
130. In response, the Court limited its holding so as not to be susceptible to a broad, sweeping
interpretation. Id. at 6. Those were the only new arguments raised in the motions for
reconsideration, however, and are not at issue here because the Secretary does not ask for a stay
of the Court’s order—the State of Alaska does—and in fact, opposes Alaska’s requested relief.


                                                  6
authority to create new trust land, but a tension is not an ‘irreconcilable conflict.’”). And given

the extensive, ever-changing nature of the federal government’s role in tribal land trust affairs, it

is entirely possible that the D.C. Circuit will disagree with this Court’s position on the regulation.

See, e.g., Akiachak, 935 F. Supp. 2d at 203‒204 (explaining the chronology of the land into trust

statutes and regulations in Alaska, and noting that “[a]fter many ambiguous pronouncements and

years of internal debate, the Secretary now agrees” that his authority to take Alaska land into

trust survived ANSCA); see also Pls.’ Opp’n Mot. 12 n.56, ECF No. 140 (explaining that

because the Secretary’s position has changed so frequently over the years, “Plaintiffs have been

here before”). Alaska has thus raised “serious legal questions going to the merits, so serious,

substantial, difficult as to make them a fair ground of litigation.” Population Inst., 797 F.2d at

1078. Given this, and given that, in certain respects, the other factors weigh heavily in favor of

Alaska, the Court finds that Alaska’s low likelihood of success on the merits is not fatal to its

motion for a stay and injunction.

                                       b. Irreparable Harm

       The more probing inquiry in this stay analysis pertains to the degree of injury evidenced

by Alaska, which could be great. There are several actions taken by the Secretary that Alaska

argues could cause it irreparable harm: (1) the rulemaking itself, 4 officially eliminating the



       4
               The Secretary and plaintiff Tribes both make arguments that Alaska cannot
challenge the Proposed Rule in this Court, invoking a variety of different theories. See Fed.-
Def.’s Opp’n Mot. 3‒6; Pls.’ Opp’n Mot. 10‒14. Specifically, they argue that any challenge to
the Proposed Rule is beyond the scope of the complaint, is not ripe, was not properly exhausted,
and does not represent final agency action capable of being challenged under the APA. The
Court need not decide all of these issues because, as set forth above, the Proposed Rule itself
does not cause Alaska irreparable harm. Even if it did, however, the Court doubts that any
challenge to the Proposed Rule would be ripe for judicial review. See Ctr. for Auto Safety v. Nat.
Highway Traffic Safety Admin., 710 F.2d 842, 846 (D.C. Cir. 1983) (noting that “the issuance of
a notice of proposed rulemaking . . . often will not be ripe for review because the rule may or
may not be adopted or enforced”); see also Action on Smoking & Health v. Dep’t of Labor, 28


                                                  7
Alaska exception from the land into trust regulations in light of this Court’s September 30, 2013

Order; (2) the Secretary’s accepting of applications by Indian tribes to take land into trust; and

(3) actually taking Alaskan land into trust. The D.C. Circuit has explained that in order to show

irreparable injury, “the injury must be both certain and great; it must be actual and not

theoretical. Injunctive relief ‘will not be granted against something merely feared as liable to

occur at some indefinite time.’” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.

1985); see also Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.

2006) (“The moving party must show the injury complained of is of such imminence that there is

clear and present need for equitable relief to prevent irreparable harm.”) (emphasis in original). 5

The Court analyzes each potential action in turn.

                                        1. Rulemaking

       Here, the Proposed Rule and rulemaking process do not cause Alaska irreparable harm.

The comment period is open until June 30, 2014; after that period closes, the Secretary will begin


F.3d 162, 164‒65 (D.C. Cir. 1994) (finding that OSHA’s notice of proposed rulemaking was not
ripe for judicial review); Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25, 39 (D.D.C. 2012)
(holding that an advance notice of proposed rulemaking rendered a challenged rule “not
sufficiently final to satisfy the fitness prong of the ripeness inquiry”).
        5
                 The Secretary argues that Alaska has “slept on its rights” by waiting eight months
to move for a stay of the Court’s September 30, 2013 Order. See Fed.-Def.’s Opp’n Mot. 8, ECF
No. 141. The Court does not agree. Alaska acted almost immediately after the Secretary
announced that it would issue a new rule officially deleting the Alaska exception to the land into
trust regulations. Specifically, the Proposed Rule was published on May 1, 2014, and the State
of Alaska moved for a stay and injunction on May 9, 2014. As Alaska represented to the Court,
“[u]ntil the Secretary announced a rulemaking effort focused only on removing the Alaska
exception from the land into trust regulations, there was no indication that the Secretary intended
to take land into trust while her ability to do so was still being litigated.” See Alaska’s Reply 12‒
13, ECF No. 143. If anything, this factor cuts in Alaska’s favor because it shows that the
Secretary is initiating the first steps of taking land into trust by engaging in the rulemaking (even
though, it arguably does not need to, given the Court’s September 30, 2013 Order already
vacating the final sentence at issue), and that the Secretary plans on moving forward with the
process of considering applications to take land into trust, thus showing that there is a “clear and
present need for equitable relief to prevent irreparable harm.” See Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).


                                                  8
reviewing the comments, and issue a final rule. But as the plaintiffs “begrudgingly note . . . [,]

even after engaging in the rulemaking process, there is no guarantee the Secretary will actually

develop a final rule on Alaska trust lands.” See Pls.’ Opp’n Mot. 12 n.56. It is entirely possible

that the Secretary never issues a final rule, and even if she does, the issuance of the final rule

itself will not result in irreparable harm to Alaska, because there are several other steps that need

to take place before the Secretary can actually take land into trust. See 25 C.F.R. §§ 151.9‒

151.12. Importantly, Alaska does not argue that the Proposed Rule or the rulemaking process

itself will cause it irreparable harm, but focuses on the land being taken into trust as the basis for

irreparable harm. See Alaska’s Mot. Stay 6, 21‒24; Alaska’s Reply 12‒14, ECF No. 143.

Because the rulemaking process marks such a preliminary step, and one with limited

consequences as this Court has already severed the Alaska exception to the land into trust

regulations, the rulemaking process does not cause Alaska irreparable harm and therefore, the

Court will not enjoin the Secretary from continuing that activity.

                                       2. Application process

       The process of accepting and reviewing applications to take land into trust also does not

cause Alaska irreparable harm because there are so many regulatory procedures involved in that

process that merely accepting and reviewing applications would not result in land being directly

taken into trust. For instance, in this case, once a final rule is published (or possibly even

without a final rule being published, in light of the Court’s September 30, 2013 Order), an Indian

or tribe may file an application for approval of taking land into trust with the Secretary. See 25

C.F.R. § 151.9. After the Secretary receives that application, it must notify the state and local

governments having jurisdiction over the land, and give that government 30 days to provide

written comments to the possible acquisition (the exact procedure differs depending on whether




                                                  9
the land is an on-reservation or off-reservation acquisition). See 25 C.F.R. §§ 151.10, 151.11(d).

Then, the Secretary reviews each applicant’s request and issues a written decision. See id. §

151.12(b). Only after the Secretary has issued a decision does she actually “acquire the land in

trust.” See id. § 151.12(c)(2)(i)‒(iii) (“If the Secretary or Assistant Secretary approves the

request, the Assistant Secretary shall [p]romptly provide the applicant with the decision;

[p]romptly publish in the Federal Register a notice of decision to acquire land in trust under this

part; and [i]mmediately acquire the land in trust . . . ”). 6 Again, Alaska does not argue that




       6
                In one sentence in its opposition, the Secretary argues that any harm to Alaska is
not irreparable because “[i]f a State still disagrees with the decision [made by the Secretary], it
may challenge Interior’s decision to take a specific parcel into trust through an administrative
appeal or in federal district court.” See Fed.-Def.’s Opp’n Mot. 5. The Secretary cites two cases:
New York v. Jewell, No. 6:08-CF-0644 (N.D.N.Y. 2008), and South Dakota v. Acting Great
Plains Reg’l Dir., 49 IBIA 129 (2009), which became County of Charles Mix v. Dep’t of
Interior, 799 F. Supp. 2d 1027 (D.S.D. 2011). In those cases, a state government (New York)
and a state government (South Dakota) and county government (Charles Mix County in South
Dakota), respectively, challenged Interior’s decisions to take land-into-trust for certain tribes.
From these cases and from the Court’s reading of the 25 C.F.R. § 151 regulations, it would
appear that any decision regarding an application to take land into trust could ultimately be
litigated in federal court (1) because other state governments have done so and (2) the land-into-
trust regulations allow for it. See 25 C.F.R. § 151.12(c) (“A decision made by the Secretary, or
the Assistant Secretary—Indian Affairs pursuant to delegated authority, is final agency action
under 5 U.S.C. § 704 upon issuance.”).
        The federal government’s argument on this point, however, is half-hearted; and the
Court’s own reading of the regulations in the absence of anything heartier from the government
does not persuade the Court that the state’s ability to litigate a Department decision renders the
harm reparable. Once the Secretary issues a final decision on a particular application, it must
“[p]romptly provide the applicant with the decision; [p]romptly publish in the Federal Register a
notice of decision to acquire land under this part; and [i]mmediately acquire the land in trust
under § 151.14 on or after the date such decision is issued and upon fulfillment of the
requirements of § 151.13 and any other Departmental requirements.” 25 C.F.R. §
151.12(c)(2)(i)‒(iii) (emphasis added). The regulations do not spell out the timelines in which
all these events must occur, but it appears to the Court that any litigation of a parcel-into-trust
decision would result in a race between the State (to the courthouse to file for an injunction) and
Interior (to “immediately acquire the land”). And even if the State could pursue litigation
immediately, the ensuing litigation could still cause chaos over clouded title to land in Alaska—
the exact irreparable harm Alaska seeks to prevent. Without more specific information from the
Secretary as to how the State’s ability to litigate a parcel-into-trust determination makes the harm


                                                 10
accepting applications or reviewing them will cause it irreparable harm, but focuses on the land

being taken into trust as the basis for irreparable harm. See Alaska’s Mot. Stay 6, 21‒24;

Alaska’s Reply 12‒14. The accepting and reviewing of applications to take land into trust does

not result in irreversible turning points, but rather marks the preliminary steps to begin

considering the taking of land into trust. As such, Alaska will not be irreparably harmed absent

an order enjoining such activities.

                                       3. Taking Land into Trust

       Once the Secretary reaches a decision, however, and takes the land into trust, the harm to

Alaska at that point becomes irreparable. Alaska argues that once land is actually taken into

trust, “[c]reating new trust land in Alaska would impinge upon state sovereignty by transferring

primary jurisdiction over land taken into trust from the state to the federal government and the

affected Indian tribe.” Alaska’s Mot. Stay 19. In addition, land taken into trust “could greatly

compromise the State’s ability to manage its fish and game resources, enforce state alcoholic

beverage control laws, protect the environment, tax, provide public services, and ensure public

safety.” See id. Finally, Alaska states that its interest in maintaining the terms of the Alaska

Native Claims Settlement Act would be compromised if the land into trust regulations are

applied in Alaska. See id. at 23‒24.

       The plaintiffs in turn argue that Alaska has not shown that it will suffer an imminent

injury such that a stay is needed to prevent irreparable harm, because there is no final rule in

effect yet, and without a final rule and several other intermediary steps taking effect, the

Secretary will not begin taking land into trust. See Pls.’ Opp’n Mot. 6‒7. Meanwhile, the



here reparable, the Court will not entertain this argument as a basis to deny Alaska injunctive
relief.



                                                 11
Secretary argues that Alaska has “slept on its rights” by not bringing this emergency motion

sooner—given that the Court’s order eight months ago “opened the possibility of Interior taking

land into trust.” See Fed.-Def.’s Opp’n Mot. 8, ECF No. 141. As such, the Secretary continues,

Alaska has not shown that there is an imminent injury here.

       The Court finds that Alaska has the stronger argument. Irrespective of the final rule

taking effect, the Court’s order “opened the possibility,” as the Secretary readily admits, that the

Secretary could begin the process of taking land into trust in Alaska pursuant to the pre-existing

land into trust regulations. Given that the Court severed the Alaska exception, there is arguably

nothing to stop the Secretary from taking land into trust in Alaska prior to the D.C. Circuit

deciding this case. To be sure, the Assistant Secretary for Indian Affairs at the Department of

the Interior has represented to the Court that he will not begin accepting applications for taking

land into trust until a final rule is published. See Washburn Decl. ¶ 8, ECF No. 141-1. However,

even operating under that assumption, it is entirely possible that the BIA publishes a final rule

before the D.C. Circuit issues an opinion in this case, and that the Secretary will then begin the

process of taking land into trust before a decision is issued on appeal. 7 As such, a stay is

necessary to prevent the irreparable harm to state sovereignty and state management of land that

will befall Alaska if state land begins to be taken into trust for the Tribes. See Int’l Snowmobile

Mfrs. Ass’n v. Norton, 304 F. Supp. 2d 1278, 1287 (D. Wyo. 2004) (recognizing that, inter alia,

infringement on Wyoming’s state sovereignty in managing its trails and fish populations caused

by a federal regulation constituted irreparable harm, and ultimately granting a preliminary

injunction on that and other grounds).



       7
               Public comment on the Proposed Rule concludes on June 30, 2014. See 79 Fed.
Reg. 24,648, 24,648. But as of today, from the Court’s examination of the appeals docket, No.
13-5360, it does not appear that a briefing schedule has even been set by the Circuit.


                                                 12
                                          c. Other parties

       The potential harm suffered by other parties also weighs heavily in favor of Alaska.

Alaska argues first that the plaintiff Tribes will suffer no harm if this Court preserves the status

quo, because if the Tribes prevail in the litigation, the only harm they will suffer will be a delay

in their ability to have land taken into trust for them. And if they do not ultimately prevail in the

litigation, the stay will have no effect on them—as land will not be able to be taken into trust for

them at all if Alaska wins its appeal. See Alaska’s Mot. Stay 24. As to the federal government,

Alaska argues that maintaining the status quo pending appeal similarly will not harm the

Secretary because its rulemaking activities may be delayed, but not impaired. On the other hand,

if a stay is not granted, Alaska argues that the Secretary will waste substantial resources by

beginning to take land into trust and having to undo that work if the Alaska exception is then

ultimately restored. See id. at 24‒25.

       Meanwhile, the Secretary argues that “[t]he harm to the United States and Alaska tribes

of granting Alaska’s request is concrete and clear.” See Fed.-Def.’s Opp’n Mot. 14. However,

the Secretary does not specifically identify any harm to the United States or the Alaska tribes,

but rather explains that Indian tribe self-governance may be impeded if the Secretary is

prevented from taking land into trust on behalf of the Tribes. See id. at 12‒13. And the plaintiffs

argue that “imposing indefinite delays on the rulemaking process will cause harm to the Tribes

and tribal citizens of Alaska who have been wrongfully excluded from the land into trust process

since the Alaska exception was promulgated in 1980.” See Pls.’ Opp’n Mot. 9.

       The Court agrees with Alaska on this prong. Alaska would likely suffer irreparable harm

if the Court did not enjoin determinations to take land into trust. As Alaska aptly argues, “all

parties will suffer harm because title to all of the new trust acquisitions would be clouded,” if the




                                                 13
Secretary were allowed to take land into trust, only for that process to be potentially undone by

the circuit court’s forthcoming decision. See Alaska’s Mot. Stay 25; see also Alaska’s Reply 15

(“[T]his harm would be in the form of the clouded title on all new trust acquisitions in the state,

and the inevitable uncertainty and litigation this situation would create. Quite simply, the

creation of trust land in Alaska would be a very difficult bell to un-ring.”) (emphasis added).

Any delay caused to the plaintiff Tribes while the Court’s order is stayed will not be indefinite

but will only last through the pendency of appeal. Moreover, any delay caused to the plaintiff

Tribes does not outweigh the deleterious effect that confusion and chaos will have on all parties

involved if title to the land in trust becomes clouded. And any such delay will be minimized,

given that the Court will allow the rulemaking and application process to go forward, and will

only enjoin the Secretary from actually taking parcels into trust, that can be acted on quickly if

the D.C. Circuit issues a decision affirming this Court.

       In sum, all the parties would have expended a tremendous amount of time, energy, and

resources engaging in the process of taking land into trust, to only have the Alaska exception

restored if the D.C. Circuit disagrees with this Court. All parties would be harmed by any

confusion and ensuing litigation created by attempts to undo the land into trust determinations.

In order to make the process as efficient as possible, and to reduce any confusion as to land title

in Alaska, the Court believes that the harm to all the parties weighs in favor of issuing a partial

injunction here.

                                         d. Public Interest

       As to the public interest prong, Alaska argues that “the public interest would be seriously

jeopardized if new trust land is created in Alaska but the Alaska exception in the land into trust

regulations is affirmed on appeal, thus voiding trust land acquisitions and administrative




                                                 14
decisions that occurred in the interim.” Alaska’s Mot. Stay 25. The plaintiffs do not really

address this argument, but instead focus on the public interest as it relates to the rulemaking

process, noting that even if the rulemaking process is completed, that “does not guarantee that a

single acre of land will be placed into trust.” See Pls.’ Opp’n Mot. 9. Similarly, the Secretary

does not address Alaska’s argument directly, instead arguing that taking land into trust serves an

important public interest, including furthering Indian self-government, and securing tribal

homelands. See Fed.-Def.’s Opp’n Mot. 12‒13.

       The Court again finds that Alaska has the stronger argument. There is a public interest in

having certainty over title to land in Alaska maintained. See, e.g., Entek GRB, LLC v. Stull

Ranches, LLC, 885 F. Supp. 2d 1082, 1096 (D. Colo. 2012) (“The public interest is best served

when established contract and property rights are enforced.”); Barbosa v. Solomon, 243 B.R.

562, 567 (D. Mass. 2000) (explaining that public policy interests include “certainty of land titles

in the marketplace”). As set forth above, if the Secretary were able to take land into trust

pending the outcome of the appeal, and the D.C. Circuit reversed this Court’s decision, title to

land in Alaska would be clouded at best, and ensuing litigation would likely require energy and

expense from the federal government, the State of Alaska, and all native tribes involved. Such

confusion over land title is not in the public interest, and as such, the public interest favors a

partial injunction pending appeal.

                                        IV. CONCLUSION

       For the foregoing reasons, the Court will GRANT IN PART Alaska’s motion for an

injunction by enjoining the Secretary from taking any land into trust in Alaska, pending the

outcome of the appeal. The Court’s ruling does not apply to the pre-existing exception for the




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Metlakatla Indian Community of the Annette Island Reserve or its members. 25 C.F.R. § 151.1;

see also 79 Fed. Reg. 24,648, 24,649.

       Accordingly, it is hereby ORDERED that Alaska’s motion for a stay and injunction

pending appeal (ECF No. 139) is GRANTED IN PART AND DENIED IN PART. It is further

ORDERED that the Secretary of the Interior is hereby ENJOINED from taking land into trust in

Alaska (except for the Metlakatla Indian Community of the Annette Island Reserve or its

members, as set forth above) until the D.C. Circuit issues a ruling and mandate resolving

Alaska’s appeal.

       SO ORDERED.


Dated: June 26, 2014                                             RUDOLPH CONTRERAS
                                                                 United States District Judge




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