San Francisco Herring Association v. United States Department of the Interior et al

Filing 117

ORDER DENYING 75 MOTION FOR A PRELIMINARY INJUNCTION.(jstlc2S, COURT STAFF) (Filed on 1/15/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

SAN FRANCISCO HERRING
ASSOCIATION,
Plaintiff,

8

11

ORDER DENYING MOTION FOR A
PRELIMINARY INJUNCTION

v.

9
10

Case No. 13-cv-01750-JST

UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.,

Re: ECF No. 75.

United States District Court
Northern District of California

Defendants.
12
13

I.

INTRODUCTION

14

In this Administrative Procedure Act (“APA”) case, Plaintiff San Francisco Herring

15

Association (“Plaintiff” or “SFHA”) has moved for a preliminary injunction enjoining Defendants

16

the U.S. Department of the Interior (“DOI”), Interior Secretary Sally Jewell, the U.S. National

17

Park Service (“NPS”), NPS Director Jonathan Jarvis, and Golden Gate National Recreation Area

18

(“GGNRA”) General Superintendent Frank Dean (collectively, “Defendants”) from issuing

19

citations to persons who engage in commercial herring fishing in waters of San Francisco Bay one

20

quarter of a mile offshore of the shoreline of the GGNRA (“the waters in question”). The matter

21

came for hearing on January 13, 2014.

22

II.

BACKGROUND

23

A.

24

In 1916, Congress enacted the NPS Organic Act. Ch. 408, § 1, 39 Stat. 535 (Aug. 25,

25
26
27
28

Statutory Background

1916), codified at 16 U.S.C. § 1 et seq. It states, in part, that the NPS shall:
[P]romote and regulate the use of the Federal areas known as
national parks, monuments, and reservations hereinafter specified . .
. by such means and measures as conform to the fundamental
purpose of the said parks, monuments, and reservations, which
purpose is to conserve the scenery and the natural and historic

objects and the wild life therein and to provide for the enjoyment of
the same in such manner and by such means as will leave them
unimpaired for the enjoyment of future generations.

1
2
16 U.S.C. § 1.
3
4

In 1972, Congress established the Golden Gate National Recreation Area (“GGNRA”) as
an area of the National Park System, by enacting the GGNRA Enabling Act (“the GGNRA Act”).

5
Pub. L. No. 92-589, 86 Stat. 1299 (1972), codified at 16 U.S.C. § 460bb-1 et seq.
6

Section 3 of the GGNRA Act, entitled “Acquisition policy,” states that:

7
8
9
10

United States District Court
Northern District of California

11
12
13
14

Within the boundaries of the recreation area, the Secretary [of the
Interior] may acquire lands, improvements, waters, or interests
therein, by donation, purchase, exchange or transfer. Any lands, or
interests therein, owned by the State of California or any political
subdivision thereof, may be acquired only by donation.
[. . .]
Except as hereinafter provided, Federal property within the
boundaries of the recreation area is hereby transferred without
consideration to the administrative jurisdiction of the Secretary for
the purposes of this subchapter, subject to the continuation of such
existing uses as may be agreed upon between the Secretary and the
head of the agency formerly having jurisdiction over the property.

15

16 U.S.C. § 460bb-2(a). Section 4, the immediately following provision of the GGNRA Act, is

16

entitled “Administration,” and states that:

17
18
19
20
21
22
23
24
25
26
27

The Secretary shall administer the lands, waters and interests therein
acquired for the recreation area in accordance with the provisions of
sections 1, 2, 3, and 4 of this title, as amended and supplemented,
and the Secretary may utilize such statutory authority available to
him for the conservation and management of wildlife and natural
resources as he deems appropriate to carry out the purposes of this
subchapter.
16 U.S.C. § 460bb-3(a).
Under the GGNRA Act, “[t]he recreation area . . . comprise[s] the lands, waters, and
submerged lands generally depicted on the map entitled: ‘Revised Boundary Map, Golden Gate
National Recreation Area’, numbered NRA-GG-80,003-K and dated October 1978, plus those
areas depicted on the map entitled “Point Reyes and GGNRA Amendments and dated October 25,
1979.” 16 U.S.C. § 460bb-1(a)(1). The boundary extends 1/4 mile offshore from the shoreline
from approximately Sausalito to Bolinas Bay in Marin and San Francisco Counties, around
Alcatraz Island, and from Ft. Mason in the City of San Francisco along the coast to south of Ocean

28
2

1
2

Beach within San Francisco County. See Administrative Record (“A.R.”) at 14, 18, 1683-86.
In 1976, in an amendment to the NPS Organic Act, Congress authorized the Secretary of

3

Interior to “[p]romulgate and enforce regulation concerning boating and other activities on or

4

relating to waters located within areas of the National Park System, including waters subject to the

5

jurisdiction of the United States.” Pub L. No. 94-458, October 7, 1976, 90 Stat 1939, § 1, codified

6

at 16 U.S.C. § 1a-2(h).

7

B.

8

In 1983, the NPS promulgated regulations that apply to persons within, inter alia: “[t]he

9

Regulatory Background

boundaries of federally owned lands and waters administered by the National Park Service,”
persons within “[w]aters subject to the jurisdiction of the United States located within the

11
United States District Court
Northern District of California

10

boundaries of the National Park System, including navigable waters and areas within their

12

ordinary reach (up to the mean high water line in places subject to the ebb and flow of the tide and

13

up to the ordinary high water mark in other places) and without regard to the ownership of

14

submerged lands, tidelands, or lowlands,” as well to persons within “[o]ther lands and waters over

15

which the United States holds a less-than-fee interest, to the extent necessary to fulfill the purpose

16

of the National Park Service administered interest and compatible with the nonfederal interest.”

17

36 C.F.R. § 1.2(a).

18

Within those areas, the regulation “prohibits commercial fishing except where specifically

19

authorized by Federal statutory law.” 36 C.F.R. § 2.3(d)(4). Defendants have informed members

20

of the SFHA of their intention to enforce this regulation within the waters in question.

21

C.

Jurisdiction

22

Plaintiff’s causes of action arise under the APA, 5 U.S.C. §§ 701-706. Therefore, the

23

Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331. As discussed in the Court’s

24

Order Regarding Subject-Matter Jurisdiction, neither the statute of limitations nor the Quiet Title

25

Act deprive this Court of subject-matter jurisdiction. ECF No. 84.

26

D.

27

Plaintiff filed this action on April 18, 2013, bringing three causes of action: for violations

28

Procedural History

of 5 U.S.C. § 706(2)(C), 5 U.S.C. § 706(2)(A), and for estoppel. Complaint for Declaratory and
3

1

Injunctive Relief, ECF No. 1. In July, the Court granted Defendants’ unopposed motion to

2

dismiss the estoppel cause of action. ECF No. 16. Plaintiff filed the FAC on July 10, bringing

3

only the APA causes of action. ECF No. 17. Defendants filed a motion for summary judgment on

4

the issue of “whether defendants acted in excess of statutory jurisdiction in prohibiting

5

commercial fishing in the units of the National Park System, including the Golden Gate National

6
7
8
9
10

Recreation Area.” Defendants’ Motion for Summary Judgment (“Defts’ MSJ”) 1:16-19, ECF No.
31. Plaintiff’s cross-motion seeks a judgment “in its favor on the issue of the Defendants’
jurisdiction to prohibit commercial fishing adjacent to shoreline of the GGRNA.” Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment and Cross-Motion for Summary
Judgment (“Opp./Cross-MSJ”) 1:19-23, ECF No. 37.
The cross-motions for summary judgment were initially set for hearing on December 12,

United States District Court
Northern District of California

11

2013. However, after concluding that the parties’ summary judgment motions might require the

12
Court to reach the question of whether the State of California or the United States government
13
14
15
16

owns title to the waters in question, the Court invited the State of California to provide its views
on that and other questions. See Notice to California Attorney General Kamala Harris, ECF No.
65. The California State Lands Commission (“CSLC”) responded to accept the invitation to
appear as amicus curiae, but requested until February 10 to provide its views. ECF No. 70. After

17

the parties filed statements of non-opposition to this request, the Court granted it, gave the parties

18

an opportunity to respond to the CSLC’s filing, and continued the hearing on the parties’ summary

19

judgment motions to March 6, 2014. ECF No. 85. In the meantime, after hearing argument only

20

on issues going to subject-matter jurisdiction, the Court concluded that it did not lack jurisdiction

21

over this action. Order Regarding Subject-Matter Jurisdiction, ECF No. 84.

22

Plaintiff then filed the instant motion for a preliminary injunction, noting that the Pacific

23

herring fishing season closes on March 15. Plaintiff’s Motion for a Preliminary Injunction (“PI

24

Motion”), ECF No. 75. Plaintiff seeks an order through which “Defendants are . . . enjoined until

25

the parties’ cross-motions for summary judgment concerning the issue of the Defendants’

26

jurisdiction to prohibit fishing in the waters in question are resolved or until March 15, 2014,

27

whichever occurs sooner, from issuing citations to persons who engage in commercial herring

28

fishing in the waters of San Francisco Bay adjacent to the shoreline of the Golden Gate National
4

1

Recreation Area (‘GGNRA’) over which the National Park Service (‘NPS’) claims jurisdiction,

2

specifically those waters one quarter of a mile offshore of the shoreline of the GGNRA.”

3

Proposed Order, ECF No. 76. Defendants have opposed the motion. ECF No 87. In response to

4

the Court’s invitation to make any portion of its views known to the Court before the Court

5

addressed the preliminary injunction motion, the CSLC filed a “short statement” of the positions it

6

would likely take on some of the issues presented. ECF Nos. 82 & 83.
E.

8

A plaintiff seeking a preliminary injunction “must establish that he is likely to succeed on

9

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

10

balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking

11
United States District Court
Northern District of California

7

Legal Standard

Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v.

12

Nat. Resources Defense Council, 555 U.S. 7, 20 (2008)). Injunctive relief is “an extraordinary

13

remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

14

Winter, 555 U.S. at 22.
To grant preliminary injunctive relief, a court must find that “a certain threshold showing

15
16

is made on each factor.” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011). Provided that

17

this has occurred, in balancing the four factors, “‘serious questions going to the merits’ and a

18

balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary

19

injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and

20

that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

21

1127, 1135 (9th Cir. 2011).

22

III.

ANALYSIS

23

A.

Substantial Likelihood of Success of the Merits

24

Plaintiff claims that Defendants have violated the APA by acting in excess of statutory

25

authority in enforcing the NPS’s regulations prohibiting commercial fishing within the waters of

26

the GGNRA. The question is one of statutory interpretation only. Plaintiff does not maintain that

27

Congress lacks the authority, if it wishes, to authorize NPS to regulate the waters in question.

28

Plaintiff’s success depends on its argument that under federal statutory law, NPS may only
5

1

regulate waters within the boundaries of the GGNRA if the DOI has acquired a property interest in

2

those waters.

3

At oral argument, Plaintiff’s counsel argument also urged that the Court grant the motion

4

on the more traditional Winter standard, which allows a court to issue an injunction by concluding,

5

inter alia, that a plaintiff has a substantial likelihood of success on the merits and the balance of

6

hardships tips (not necessarily sharply) in the plaintiff’s favor. 555 U.S. at 20. But in its motion,

7

Plaintiff said it “has chosen to base its motion for a preliminary injunction not on its likelihood of

8

success on the merits of this claim but rather on the basis that there are serious questions raised by

9

this claim.” PI Motion 2:24-26. Ordinarily, the Court would be unlikely to grant a motion on any
basis other than the one on which it was made. Because the Court concludes that Plaintiff’s

11
United States District Court
Northern District of California

10

request must be denied under either standard, however, it proceeds below to address the request

12

under each.

13

The NPS Organic Act specifically authorizes NPS to “[p]romulgate and enforce regulation

14

concerning boating and other activities on or relating to waters located within areas of the National

15

Park System, including waters subject to the jurisdiction of the United States.” 16 U.S.C. § 1a-

16

2(h). This authority is broad in geographic scope (applying throughout the national park system),

17

but is very narrowly focused on the specific authority NPS now seeks to invoke (prohibiting

18

fishing by boats). There can be no doubt that, standing alone, 16 U.S.C. § 1a-2(h) plainly

19

authorizes NPS to promulgate and enforce 36 C.F.R. § 2.3(d)(4), and Plaintiff does not suggest

20

otherwise.

21

Plaintiff also does not dispute 36 C.F.R. § 2.3(d)(4)’s facial validity. It argues instead that

22

the previously enacted GGNRA Act limits the scope of 16 U.S.C. § 1a-2(h)’s applicability to the

23

GGNRA, and that therefore the NPS may not enforce the regulation in the GGNRA’s waters.

24

Plaintiff maintains that, under the GGNRA Act, Congress established an “acquisition prerequisite”

25

that required the DOI to obtain a property interest in any waters before it could regulate those

26

waters. Therefore, Plaintiff maintains, the 1972 GGNRA Act should be read to limit the 1976

27

NPS Organic Act amendment and to prevent its application to the GGNRA.

28

In so arguing, Plaintiff invokes the statutory canon that repeals by implication are
6

1

disfavored. As the case on which Plaintiff primarily relies states:

2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13

It is a basic principle of statutory construction that a statute dealing
with a narrow, precise, and specific subject is not submerged by a
later enacted statute covering a more generalized spectrum. “Where
there is no clear intention otherwise, a specific statute will not be
controlled or nullified by a general one, regardless of the priority of
enactment.” Morton v. Mancari, 417 U.S. 535, 550-551, 94 S.Ct.
2474, 2482, 41 L.Ed.2d 290, 301.7 “The reason and philosophy of
the rule is, that when the mind of the legislator has been turned to
the details of a subject, and he has acted upon it, a subsequent statute
in general terms, or treating the subject in a general manner, and not
expressly contradicting the original act, shall not be considered as
intended to affect the more particular or positive previous
provisions, unless it is absolutely necessary to give the latter act
such a construction, in order that its words shall have any meaning
at all.” T. Sedgwick, The Interpretation and Construction of
Statutory and Constitutional Law 98 (2d ed. 1874).
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976).
This canon remains well established in the law. See James v. City of Costa Mesa, 700

14

F.3d 394, 412 (9th Cir. 2012) cert. denied, __ U.S. __, 133 S. Ct. 2396 (2013) (“[r]epeals by

15

implication are disfavored; every effort must therefore be made to make both statutes operative

16

within their realm, rather than declaring a clash”); see also Nigg v. U.S. Postal Serv., 555 F.3d

17

781, 786-87 (9th Cir. 2009) (“Repeals by implication are disfavored—‘[t]he intention of the

18

legislature to repeal must be clear and manifest.’”) (quoting Morton v. Mancari, 417 U.S. 535, 551

19

(1974)). As set forth below, however, the Court concludes that it doesn’t apply here.

20

Plaintiff is correct, and Defendants conceded at oral argument, that Section 4(a) of the

21

GGNRA imposed an “acquisition prerequisite” with regard to the lands within the boundaries of

22

the GGNRA. Recognizing that there were nonfederal lands within the boundaries it had drawn for

23

the GGNRA, Congress established that the DOI could later acquire those lands “by donation,

24

purchase, exchange or transfer,” 16 U.S.C. § 460bb-2(a), and that it would only then have the

25

authority to administer the interests it had thereby acquired. 16 U.S.C. § 460bb-3(a). It appears

26

from the legislative history that Congress’ anomalous approach to park-making was part of a

27

legislative compromise between two competing camps. Some interests wanted the federal

28

government to take and administer all of the area of the GGNRA at one time, and others preferred
7

1

a more piecemeal approach in which the park’s boundaries were set out in advance but would only

2

come under unified regulation if the federal government acquired non-federal property within it

3

from its then-current owners. See Opp./Cross-Motion 2-10. Thus, in considering a later, broader

4

statute that gave the NPS some specific authority over lands within the park system, a court might

5

very well apply Morton and read the GGNRA Act to limit the effect of the later act. 417 U.S. at

6

550-51.
But the problem for Plaintiff is that neither the statutory framework of the GGNRA nor the

7

legislative history of the enactment indicate in any way that “the mind of the legislator[s] ha[d]

9

been turned to the details of” the waters within the GGNRA. Radznower, 426 U.S. at 153. To the

10

contrary, the idea that Congress contemplated that the DOI would later acquire a property interest

11
United States District Court
Northern District of California

8

in the waters of San Francisco Bay seems implausible. Plaintiff argued extensively in its summary

12
13
14
15
16

judgment brief, and again emphasized at oral argument, that the State of California may not, under
its constitution, alienate the property interest it holds in its waters as a public trust for the purposes
of fishing and navigation. See Plaintiff’s Opp./Cross-Motion 13:24-16:7 (citing Cal. Const. Art. I,
§ 25, Cal. Const. Art. X, § 4, and People ex inf. Webb v. California Fish Co., 166 Cal. 576, 587
(1913).1 Therefore, the only way the DOI could acquire a property interest in the waters sufficient
to permit regulation would be to take the property by eminent domain. But in the GGNRA,

17
Congress pointedly denied DOI the authority to use eminent domain to acquire property for the
18
19
20
21
22

park, providing that acquisition could only be via “donation, purchase, exchange or transfer.” 16
U.S.C. § 460bb-2(a). Under Plaintiff’s reading, Congress established the GGNRA, drew its
boundaries so as to include the waters in question, provided that DOI could not regulate those
waters unless it acquired a property interest in those waters, and then in the same breath took away
the only tool through which the DOI could ever acquire them. This net effect of this circuitous

23

approach ‒ assuming it constitutes a reasonable reading of the GGNRA Act ‒ would be to make it

24

impossible for DOI to ever regulate these waters, making any discussion of when it could regulate

25

them nonsensical, and in some ways making it a superfluous and unnecessary act to place the

26
27
1

28

There is an exception to this limitation, which isn’t relevant here. See Cal Fish Co., 166 Cal. at
597.
8

1

waters within the boundaries at all.
It was clearly Congress’ intention that the DOI begin attempting to acquire property

2
3

interests in land for the park. But there is little in the statute to suggest that the DOI would also

4

begin actually acquiring property interests in the navigable waters of San Francisco Bay. While it

5

may be possible for the United States to acquire title to navigable waters owned in public trust by

6
7
8
9
10

a state, it appears to be a rare occurrence. The examples cited by Plaintiff are an unclear reference
in a 1913 case to the United States possibly taking “the whole flow” of a Michigan river, United
States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 65 (1913), and the U.S. military’s
condemnation of water rights in tidelands (not navigable waters) off the California coast. United
States v. 32.42 Acres of Land, 683 F.3d 1030, 1034 (9th Cir. 2012). If Congress had expected the
DOI to begin attempting to purchase waters of San Francisco Bay from the State of California, the

11
United States District Court
Northern District of California

GGNRA would probably reflect that fact somewhere. As the Supreme Court put it in a somewhat
12
13
14
15
16

different context, “Congress . . . does not, one might say, hide elephants in mouseholes.”
Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2000). Instead, Section 4 of the
GGNRA goes into great detail about which federal lands would be transferred to the DOI, without
any mention of the waters in the Bay. And Section 3(a) provides specifically that “[a]ny lands, or
interests therein, owned by the State of California or any political subdivision thereof, may be

17

acquired only by donation,” notably omitting any mention of the waters owned by the state. 16

18

U.S.C. § 460bb-2(a).

19

Plaintiff’s account of the legislative history amply demonstrates that Congress understood

20

that land would need to be owned to be regulated. But that same history also provides virtually no

21

evidence that Congress thought the same way about the waters. In none of the discussions do

22

legislators, or even observers, express any understanding of the effect the statute would have on

23

waters.

24

Given this statutory framework and the legislative history, there is no indication that

25

Congress thought very much at all about whether DOI would begin purchasing the waters of San

26

Francisco Bay, much less that the “mind of the legislator . . . [was] specifically turned to the

27

details” of the subject. Radzanower, 426 U.S. at 153. It is notable that the precise phrase “lands,

28

waters, and interests therein” appears in 54 different places within Title 16 of the United States
9

1

Code. See, e.g., 16 U.S.C. § 668dd(a)(1) (National Wildlife Refuge System); 16 U.S.C. § 3102(2)

2

(Alaska National Interest Lands Conservation Act); 16 U.S.C. § 1461(e)(3)(A) (National Estuarine

3

Research Reserve System). The most persuasive explanation for the inclusion of the word

4

“waters” in Section 4(a) is that the entire phrase is boilerplate, employed with near-automatic

5

regularity when Congress enacts a statute relating to the DOI’s authority. It appears that little

6
7
8
9
10

thought was devoted to how this standard language would fit with the idiosyncratic “acquisition
prerequisite” that Congress placed within the GGNRA Act.
Out of context, Plaintiff’s interpretation of the isolated phrase “lands, waters, and interests
therein acquired” seems reasonable. Standing alone, the most natural reading of this phrase is that
it means something to the effect of “lands in which DOI has acquired a fee simple interest, waters
in which DOI has acquired a fee simple interest, and other property interests in such lands and

United States District Court
Northern District of California

11
12
13
14
15
16

waters that are owned by DOI.” But “a section of a statute should not be read in isolation from the
context of the whole Act.” Planned Parenthood Arizona Inc. v. Betlach, 727 F.3d 960, 971 (9th
Cir. 2013) (quoting Richards v. United States, 369 U.S. 1, 11 (1962).
It might be another thing if the Court were being asked to consider whether the DOI could
regulate the waters in question under the GGNRA Act alone. But the Court is asked to attempt to
harmonize the GGNRA Act with a later-enacted, and equally valid, Act of Congress which

17

specifically gives NPS the general authority to regulate boating within the national park system.

18

For good reasons, the presumption against repeals by implication is generally employed when the

19

previous enactment’s provisions are clear and undisputed. See, e.g., Morton, 417 U.S. at 542-45.

20

Since Plaintiff has not demonstrated that Congress specifically turned its attention to the question

21

of whether DOI would need to acquire a property interest in the waters of San Francisco Bay, it

22

cannot escape the otherwise clear effect of 16 U.S.C. § 1a-2(h).

23

B.

24

The Court agrees that there are “serious questions going to the merits,” especially pending

Balance of Hardships

25

the participation of the CSLC. However, “serious questions” will only support the issuance of a

26

preliminary injunction where the balance of hardships “tips sharply” in Plaintiff’s favor. See

27

Alliance for the Wild Rockies, 632 F.3d at 1135. Plaintiff has not demonstrated that the balance

28

of hardships tips sharply in its favor.
10

1

SFHA claims that its members will suffer the hardship of either being deprived of income

2

they would otherwise derive from fishing within the waters in question, or running a risk of

3

criminal prosecution if they do so. The waters in question, however, are only a small portion of

4

the total area in which herring fishing occurs, and herring fishermen are limited by a biomass

5

quota by the State of California that the fishermen have not always exceeded even when they did

6
7
8
9
10

fish in the waters in question. Therefore, restricting the area in which fishing occurs does not
necessarily restrict the total catch. It may extend the amount of time fishermen take to fulfill their
quota, and time, of course, is money. But as one of the exhibits submitted by Plaintiff indicates,
herring did not even spawn in the waters in question during the most recent fishing season. See
Exhibit 5 to Gross Declaration, at 10. Thus, it is difficult for the Court to conclude that permitting
the federal government to enforce the Organic Act will necessarily have the effect of extending the

United States District Court
Northern District of California

11

fishermen’s time on the water.

12
Notwithstanding these qualifying facts, the Court does recognize that the SFHA and its
13
14
15
16

members may suffer legitimate, cognizable harm from having their fishing options restricted, and
that this is harm is likely to be irreparable since they cannot recover compensatory damages in this
APA action. But the Court cannot conclude that these concerns “sharply” outweigh the hardship
to the federal government (and the public it represents) of fulfilling a presumptively valid federal

17

statutory goal. Cf. Coal. For Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (“[I]t is clear

18

that a state suffers irreparable injury whenever an enactment of its people or their representatives is

19

enjoined.”). Preserving national park areas for noncommercial activity, public enjoyment, and wildlife

20

protection is a paramount public interest. And as the representative of the public charged with keeping

21

national park areas free of prohibited commercial activity, the DOI safeguards the public’s interest in

22

ensuring that its regulations are enforced.

23

At oral argument, Plaintiff’s counsel conceded that the federal government generally has a

24

strong equitable interest in enforcing a presumably valid regulation, but he argued that that interest

25

does not attach in as-applied challenge. The Court disagrees. Since Plaintiff has not demonstrated that

26

it is substantially likely to demonstrate that DOI is acting outside of its statutory authority, DOI and

27

NPS presumably are acting within their authority in enforcing NPS regulations.

28

Plaintiff also asserts that granting the injunction will prevent harm to the environment
11

1

because fishermen will be able to meet their biomass quota catching older and larger fish that

2

spawn within the GGNRA, preserving a younger fishery and reducing the potential secondary

3

impacts of fishing by boats who spend excessive time on the water attempting to meet their quota.

4

This argument is plausible, but the declarations Plaintiff has submitted in support of this argument

5

lack foundation and call for expert testimony. The Court is not in a position to determine whether

6
7

the SFHA or the federal government have the better approach to preserving the sustainability of
the Pacific herring fishery.
The balance of hardships does not tip sharply in Plaintiff’s favor.

8
9
10

United States District Court
Northern District of California

11
12
13

IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for a preliminary injunction is DENIED.

IT IS SO ORDERED.
Dated: January 15, 2014
______________________________________
JON S. TIGAR
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12