ORDER AND OPINION

[Re: Motion at Docket 10]

JOHN W. SEDWICK, Senior District Judge.

I. MOTION PRESENTED

At docket 10 defendants Tim Towarak, Sally Jewell, and Tom Vilsack ("Defendants") move to dismiss the complaint of plaintiff Ninilchik Traditional Council ("NTC") pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). NTC opposes at docket 21; Defendants reply at docket 32.

At docket 20 the court granted Defendants' motion for judicial notice of the nine exhibits they attached to their motion to dismiss (Exhibits A-I); at docket 37 the court granted NTC's motion for judicial notice of Exhibits 1-7 and 9 to NTC's opposition but declined to take judicial notice of Exhibit 8; and at docket 35 the court granted NTC leave to file a surresponse, which NTC filed at docket 36.

Oral argument was heard on April 14, 2016.

II. BACKGROUND

In 1980 Congress passed Title VIII of the Alaska National Interest Lands Conservation Act ("ANILCA")1 "to protect the subsistence way of life in the face of Alaska's growing population and the resultant pressure on fish and wildlife populations."2 "Congress' aim in passing ANILCA was to ensure a way of life `essential to Native physical, economic, traditional, and cultural existence and to non-Native physical, economic, traditional, and social existence.'"3 Among other things, Section 804 of ANILCA provides that on public lands the taking of fish for "nonwasteful subsistence uses shall be accorded priority" over the taking of fish for other purposes.4

To advance ANILCA's directives, Congress authorized the Secretary of the Interior and the Secretary of Agriculture to promulgate regulations.5 One of these regulations established a Federal Subsistence Board ("Board"),6 which is charged with administering "the federal subsistence program at the heart of Title VIII."7 The Board's powers include the power to issue "regulations for the management of subsistence taking and uses of fish and wildlife on public lands"8 and to take emergency action to close public lands for the taking of fish or to modify the requirements for subsistence and/or non-subsistence take.9 In 2002 the Board delegated its authority over in-season management of the federal subsistence fishery in the Kenai National Wildlife Refuge to the U.S. Fish and Wildlife Service, Kenai Fishery Resources Office.10

The three defendants in this action are the Secretary of Interior, the Secretary of Agriculture, and the Board's Chairman. The plaintiff is NTC, the governing body of Ninilchik Village,11 a federally-recognized Indian tribe12 whose members have a customary and traditional use of all fish in the Kasilof and Kenai River drainages.13 Although Ninilchik Village members share "in an annual subsistence allocation of salmon from three federal fisheries on the Kenai River,"14 they allege that they have "been unable to harvest this subsistence salmon allocation" due to "restrictive federal subsistence regulations limiting methods and means of harvest, and restrictive and arbitrary federal in-season subsistence management actions."15

In March 2014 NTC submitted two proposed regulations that would authorize residents of Ninilchik to operate two community subsistence gillnets: one in the Kenai River and the other in the Kasilof River.16 The Southcentral Regional Advisory Council, which is a regional advisory council established under Section 805 of ANILCA to provide opinions and recommendations to the Board on subsistence matters,17 considered NTC's two gillnet fishery proposals and recommended that the Board adopt both.18 The Board voted to adopt NTC's proposals19 and, after a five-month notice and comment period, promulgated final regulations authorizing the two gillnet fisheries.20

Under these regulations a Kasilof River gillnet would be allowed between July 1 and 31 and a Kenai River gillnet would be allowed between June 15 and August 15 for the harvest of Sockeye, Chinook, Coho, and Pink salmon, unless fishing is closed by "Federal Special Action."21 One permit for each net would be awarded by the federal in-season fishery manager based on the submission of a written operational plan.22 During all relevant times, that in-season fishery manager was Jeffry Anderson ("Anderson").23

On May 27, 2015, NTC submitted to Anderson an operational plan for the Kenai and Kasilof gillnet fisheries.24 Before deciding either submission, Anderson issued an emergency special action closing the federal subsistence fishery from June 18 until August 15 for early-run Chinook salmon in all federal public waters in the Kenai River downstream of Skilak Lake.25

On July 13, "less than a month before the closure of the 2015 federal subsistence fishing season," Anderson approved NTC's operational plan for the Kasilof River gillnet and issued a permit to NTC.26 But Anderson still did not act on NTC's request for a Kenai River gillnet permit.27 In a July 16 letter Anderson explained that he did not anticipate approving a Kenai River permit for the 2015 fishing season "because of the urgent need to protect early-run Chinook [s]almon."28

In late July NTC wrote two letters to the Board seeking relief from Anderson's emergency closure and failure to issue the Kenai permit.29 Specifically, NTC asked the Board to (1) overturn Anderson's emergency closure;30 (2) negate his refusal to authorize an operational plan for a Kenai gillnet fishery for the 2015 fishing season;31 (3) rescind his authority over Cook Inlet Area subsistence fishing;32 and (4) remove language in the Kenai River regulation that empowers Anderson to block the issuance of a gillnet permit.33 The Board convened on July 28 and considered NTC's requests.34 After hearing testimony from Anderson in support of his actions35 and from NTC in opposition,36 the Board voted not to grant NTC any of the relief it had requested.37

NTC's two-count complaint, filed in October 2015, alleges that Defendants' actions violate Section 804 of ANILCA and the Administrative Procedure Act ("APA")38 in relation to three events: (1) the Board's 2002 delegation of authority to the in-season manager; (2) Anderson's 2015 subsistence fishery closure; and (3) Defendants' implementation of the Kenai river gillnet fishery regulation.

A. NTC's Seven ANILCA Claims

With regard to the 2002 delegation, NTC alleges that Defendants violated ANILCA by delegating in-season management authority without any substantive standards (claim one)39 and then "failed to exercise any independent oversight" over the in-season manager's actions (claim two).40

With regard to the 2015 closure, NTC alleges that Defendants violated ANILCA by allowing Anderson to close the subsistence fishery and keep it closed for the entire fishing season (claim three).41

With regard to the Kenai gillnet fishery, NTC alleges that Defendants violated ANILCA when the Board delegated authority to Anderson to "develop an operational plan" for the Kenai gillnet fishery without "any standards or oversight" (claim four),42 when Anderson failed to decide NTC's gillnet permit application (claim five),43 and when the Board then refused to revoke Anderson's authority over the Kenai gillnet fishery (claim six).44

Finally, NTC alleges generally that the Board violated ANILCA by failing to "take corrective action" to prevent Anderson's "continued arbitrary and capricious action[s]" and to "ensure implementation" of the Kenai gillnet fishery (claim seven).45

B. NTC's Four APA Claims

NTC's APA claims allege that: (1) "Defendants' actions and failure to act regarding [Anderson's 2015] closure of the Kenai River federal subsistence fishery" was "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with 5 U.S.C. § 706(2)(A);"46 (2) Anderson's "failure to develop an operation plan and issue a permit for" the Kenai gillnet was "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with 5 U.S.C. § 706(2)(A);"47 (3) the Board "illegally and arbitrarily ignored its own record and acted in such a way as to prevent implantation of its own regulation;"48 and (4) the Board failed to "prescribe standards and a process for the in-season fishery management actions that are consistent with the requirements of the APA."49

III. STANDARDS OF REVIEW

A. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction. In order to survive a defendant's motion to dismiss, the plaintiff has the burden of proving jurisdiction.50

"Rule 12(b)(1) jurisdictional attacks can be either facial or factual."51 Where the defendant brings a facial attack on the subject matter of the district court, the court assumes the factual allegations in the plaintiff's complaint are true and draws all reasonable inferences in the plaintiff's favor.52 The court does not, however, accept the truth of legal conclusions cast in the form of factual allegations.53

"With a factual Rule 12(b)(1) attack, however, a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment. It also need not presume the truthfulness of the plaintiffs' allegations."54

B. Rule 12(b)(6)

Rule 12(b)(6) tests the legal sufficiency of a plaintiff's claims. In reviewing such a motion, "[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party."55 To be assumed true, the allegations, "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."56 Dismissal for failure to state a claim can be based on either "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."57 "Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss."58

To avoid dismissal, a plaintiff must plead facts sufficient to "`state a claim to relief that is plausible on its face.'"59 "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."60 "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."61 "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'"62 "In sum, for a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief."63

Ordinarily, if matters outside the pleadings are "presented to and not excluded by the court," a Rule 12(b)(6) motion "must be treated as one for summary judgment under Rule 56" and the parties "must be given a reasonable opportunity to present all the material that is pertinent to the motion."64 There are two exceptions to this rule, however. "First, a court may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment."65 Second, "a court may take judicial notice of `matters of public record.'"66

IV. DISCUSSION

A. Defendants' Jurisdictional Attacks

NTC's complaint alleges that this court has subject matter jurisdiction over its ANILCA claims under 28 U.S.C. § 1331,67 28 U.S.C. § 1362,68 and Section 807 of ANILCA,69 which states in pertinent part that an organization aggrieved by a failure of the federal government "to provide for the priority for subsistence uses" set out in Section 804 "may, upon exhaustion of any State or Federal (as appropriate) administrative remedies which may be available, file a civil action in the United States District Court for the District of Alaska to require such actions to be taken as are necessary to provide for the priority."70 NTC alleges that this court has subject matter jurisdiction over its APA claims under 28 U.S.C. § 1331, 28 U.S.C. § 1362, and 5 U.S.C. § 706.71

Defendants assert that this court lacks jurisdiction over: (1) all of NTC's claims that relate to the Kenai gillnet fishery72 because they are not ripe until all third parties exhaust their administrative challenges to the regulation that authorizes that fishery; (2) NTC's challenges to the Board's 2002 delegation of authority to the U.S. Fish and Wildlife Service because that was not a final agency action; (3) NTC's challenges to the Board's 2002 delegation of authority because those challenges are untimely; (4) NTC's challenges to the Board's decision not to rescind Anderson's authority because that decision is committed to the Board's discretion by law; (5) NTC's challenge to the emergency closure order because NTC lacks standing; and (6) NTC's various challenges that seek orders compelling the Board to act in ways that it is not legally required to act.

1. NTC's gillnet-fishery-related claims are ripe

Ripeness is "peculiarly a question of timing,"73 designed to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements."74 "Because ripeness goes to the exercise of subject matter jurisdiction, a ripeness challenge is properly raised under Rule 12(b)(1)."75

"Ripeness has both constitutional and prudential components."76 "The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with" the "injury in fact" analysis for Article III standing.77 "Whether framed as an issue of standing or ripeness, the inquiry is largely the same: whether the issues presented are `definite and concrete, not hypothetical or abstract.'"78 Defendants do not overtly argue that the constitutional ripeness test is not met here.79 Instead, they focus their arguments on ripeness' prudential component.

Analysis of ripeness' prudential component "is guided by two overarching considerations: `the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'"80 "A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final."81

In accordance with 50 C.F.R. § 100.18(a)(5),82 the Board issued the Kenai gillnet regulation as a "final rule."83 Defendants nonetheless argue that the regulation is not final because "multiple parties have filed requests for reconsideration, and that reconsideration process is still underway."84 They argue that the regulation's lack of finality also renders speculative any hardship that NTC would face if the court withholds consideration of their claims.85 According to Defendants, no party may obtain judicial review of a Board regulation so long as some other party has sought administrative reconsideration of that regulation.

Defendants rely primarily on I.C.C. v. Bhd. of Locomotive Engineers,86 Acura of Bellevue v. Reich,87 and Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt,88 cases that hold that a party renders an administrative decision nonfinal for purposes of judicial review by seeking administrative relief from that decision. These cases are not on all fours, however, because none addresses the question presented by Defendants: whether one party's administrative appeal of an agency's action renders that action nonfinal as to all third parties.

In Public Citizen v. Mineta,89 the Ninth Circuit answered that question in the negative. The plaintiffs there challenged a final rule of the National Highway Traffic Safety Administration ("NHTSA"). The relevant statute required such challenges to be brought within 59 days90 and, as in Locomotive Engineers, the court held that the statute of limitations was tolled for the parties who petitioned for reconsideration. The NHTSA argued that under its regulation, 49 C.F.R. § 553.39, tolling did not apply to parties who did not petition for reconsideration. Those non-petitioning parties challenged NHTSA's regulation, arguing that its drafter misinterpreted the case law.91

The Ninth Circuit affirmed NHTSA's interpretation of the case law, holding that "`finality with respect to agency action is a party-based concept.'"92 "Although a petition for reconsideration renders an agency order non-final as to the party seeking reconsideration, it does not affect the right to seek judicial review by those persons who did not try to obtain reconsideration. . . ."93 The Ninth Circuit's holding in Mineta is in line with case law from other circuits, including the D.C. Circuit,94 the Eighth Circuit,95 and the Third Circuit.96 In West Penn, the Third Circuit explained that interpreting finality as a party-based concept "serves the interests of fairness by allowing parties seeking judicial review to get it, rather than making them dependent on the whims of other parties."97

Defendants argue that the Board's regulation is different from the regulation at issue in Mineta because it states that the agency's decision is final only "if the request for reconsideration is denied,"98 which Defendants interpret to mean all requests for reconsideration, even those filed by third parties. It contends that this interpretation "is entitled to strong deference and may not be overturned unless plainly erroneous or inconsistent with the language of the regulation."99

Defendants' interpretation of 50 C.F.R. § 100.20(g) fails even under this highly deferential standard because it is inconsistent with the language of that regulation. 50 C.F.R. § 100.20(g) does not state that a Board action is not final until all third-party requests for reconsideration are resolved; it states that if a party requests reconsideration and the Board denies that request, the Board's denial "represents the final administrative action"100 on that specific request.

2. The Board's delegation of in-season management authority to the U.S. Fish and Wildlife Service was a final agency action

Defendants cite language from several sections of NTC's complaint and assert that NTC "seems to challenge" the Board's delegation of authority to the in-season manager to issue emergency closure orders101 or to approve an operational plan for the Kenai gillnet fishery.102 Defendants argue that this court lacks subject matter jurisdiction over such challenges because these delegations were not final agency actions, and therefore they are unreviewable under § 704 of the APA.103

NTC disputes Defendants' description of its complaint,104 stating that it is not challenging the Board's general ability to delegate its authority, but rather the Board's specific failure to rescind Anderson's authority over "the 2015 Kenai gillnet operation plan" and "the subsistence fishery in 2015."105 In addition, NTC states that its complaint challenges the Board's "implementation of its delegation of authority through the 2002 letter."106 In reply, Defendants do not contend that the first two agency actions that NTC identifies—the Board's decisions not to rescind Anderson's authority over the Kenai gillnet permit or over emergency in-season closures—are not final agency actions. But Defendants maintain that the Board's 2002 delegation of authority to the U.S. Fish and Wildlife Service was not a final agency action.107

Under the APA, 5 U.S.C. § 704, "agency action is subject to judicial review only when it is either: (1) made reviewable by statute; or (2) a `final' action `for which there is no other adequate remedy in a court.'"108 NTC does not contend that ANILCA or any other statute makes reviewable the Board's decision to delegate its authority to the in-season manager. Instead, it argues that this delegation was a final agency action under § 704 of the APA.109

To determine when an agency action is final, courts look to whether (1) the action marks "the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature" and (2) it is an action "by which rights or obligations have been determined, or from which legal consequences will flow."110 Defendants argue that neither prong of this test is satisfied here because delegations of authority to individuals do not mark the consummation of an agency's decisionmaking process, nor do they "have any legal consequences for parties outside the agency."111

Defendants' argument lacks merit. The 2002 delegation of authority meets both prongs of the Bennett test. First, the delegation was not tentative or interlocutory in nature. It conclusively and immediately provides the U.S. Fish and Wildlife Service with delegated authority to issue special actions affecting federal fisheries.112 Second, legal consequences flow from the 2002 delegation letter—namely, the delegatee obtained the legal right to issue special actions. Defendants' argument that this delegation was not final because it did not affect NTC's rights confuses finality with the separate question whether NTC's harm is fairly traceable to that action.113

3. The court cannot yet decide whether NTC's challenges to the Board's 2002 delegation of authority are timely

NTC's complaint alleges that the Board violated ANILCA in 2002 when it delegated in-season fishery management authority to the U.S. Fish and Wildlife Service without "any substantive standards to ensure that in-season management actions were consistent with providing for subsistence uses and were supported by recognized principles of fish management and facts."114 It also alleges that this standardless delegation violates the APA.115 Defendants argue that this court lacks jurisdiction over these claims because they are untimely under 28 U.S.C. § 2401(a).116 NTC correctly notes that the Ninth Circuit has held that "§ 2401(a)'s six-year statute of limitations is not jurisdictional."117 Thus, the court will consider Defendants' argument in the context of Rule 12(b)(6).

NTC argues that its challenges to the 2002 delegation are timely under the discovery rule, which provides that an action accrues "`when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its cause.'"118 It asserts that it did not discover the injury it suffered in 2002 until "June or July of 2015," when the in-season manager acted without the guidance of substantive standards in closing the subsistence fishery.119 Defendants respond by arguing that the discovery rule is of no avail to NTC because it does not allege that it was injured by the 2002 delegation, but rather by actions taken pursuant to that delegation.120

The Ninth Circuit's decision in Wind River Mining Corp. v. United States,121 controls the court's analysis. The plaintiff there filed a complaint in 1989 challenging a decision of the United States Bureau of Land Management ("BLM") ten years earlier that classified certain lands as "Wilderness Study Areas."122 The Ninth Circuit ruled that the challenge was not time barred under § 2401(a)'s six-year statute of limitations, holding that "a substantive challenge to an agency decision alleging lack of agency authority may be brought within six years of the agency's application of that decision to the specific challenger."123 "The government should not be permitted to avoid all challenges to its actions, even if ultra vires, simply because the agency took the action long before anyone discovered the true state of affairs."124

NTC's complaint alleges injuries caused in part by the Board's lack of authority to delegate its authority in 2002 without substantive standards.125 At this juncture, the court cannot determine when the statute of limitations began to run on this claim because the record does not reveal the first time that this allegedly ultra vires delegated authority was applied to NTC.126 The court reserves this issue for a later stage of the proceedings after the parties have had the opportunity to conduct discovery.

4. Even though the Board's refusal to rescind Anderson's authority is committed to agency discretion by law, the court has jurisdiction to review NTC's ANILCA claim

The APA, "which generally provides the standards of review for agency action, also withdraws jurisdiction to review agency decisions that are `committed to agency discretion by law.'"127 Defendants argue that the court lacks jurisdiction over NTC's challenges to the Board's refusal to rescind Anderson's authority because that decision is committed to the Board's discretion by law.128 According to Defendants, "[n]either the APA nor ANILCA provides guidance or restrictions on the Board's ability to delegate its authority."129

Defendants rely heavily on Drakes Bay Oyster Co. v. Jewell.130 In Drakes Bay, the plaintiff requested an extension of a permit pursuant to a Congressional enactment, "Section 124," that provided in relevant part that "`notwithstanding any other provision of law, the Secretary of the Interior is authorized to issue a special use permit with the same terms and conditions as the existing authorization.'"131 The plaintiff challenged the denial of its requested permit, arguing that the Secretary violated various federal laws, including Section 124 and the National Environmental Policy Act ("NEPA"). The Ninth Circuit held that it lacked jurisdiction to hear the plaintiff's Section 124 challenge because that law did not provide any restrictions on the Secretary's discretion to act.132

The court did not hold, however, that it lacked jurisdiction to consider whether the Secretary's action ran afoul of other laws, such as NEPA. To the contrary, the Ninth Circuit held that "even where the substance or result of a decision is committed fully to an agency's discretion, `a federal court has jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion involves violation by the agency of constitutional, statutory, regulatory or other legal mandates or restrictions.'"133 Under such circumstances, the only challenge over which courts lack jurisdiction is one that seeks review of "an alleged abuse of discretion regarding the making of an informed judgment by the agency."134

"When a court is asked to review agency action in instances where considerable discretion is committed by statute to an official, the court lacks jurisdiction due to the provisions of § 701(a)(2) only when the agency action of which plaintiff complains fails to raise a legal issue which can be reviewed by the court by reference to statutory standards and legislative intent."135 NTC is correct that Section 804's subsistence priority is a statutory standard under which the court can review NTC's claim that the Board abused its discretion in denying NTC's request to revoke Anderson's authority. 5 U.S.C. § 701(a)(2) does not deprive the court of jurisdiction to consider that claim.

5. NTC lacks standing to challenge the 2015 closure order

Defendants next argue that NTC lacks standing to challenge the emergency closure order because that order expired before this action was filed.136 The "irreducible constitutional minimum of standing:" contains the following three elements: (1) the plaintiff must have suffered an "injury in fact;" (2) "there must be a causal connection between the injury and the conduct complained of;" and (3) "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."137 Defendants' argument focuses on the first element, stating that "at the time this action was commenced, [NTC] suffered no injury as a result of" the closure order.138

NTC responds by asserting that its complaint alleges the following injuries that flow from the emergency order: its members were prevented "from realizing an important subsistence opportunity," they were prevented from harvesting enough salmon to meet their subsistence needs, and their subsistence way of life was compromised.139 NTC argues that the harm to its members' subsistence way of life caused by the lost fishing opportunity is an ongoing injury.140

Assuming without deciding that NTC and its members are suffering an ongoing injury caused by the 2015 closure order, the court is not convinced that the third element of standing is present here: that NTC's injury will likely be redressed by a favorable decision. NTC is seeking a declaratory judgment stating that the Board's failure to overturn Anderson's emergency closure in 2015 violated ANILCA and the APA.141 Even if NTC obtains this remedy it would not turn back the clock to allow NTC's members to harvest sufficient salmon to meet their subsistence needs for the 2015 fishing season.

NTC argues that its requested declaratory relief "will prevent the same unlawful conduct in 2016,"142 but the court is not so sure. Emergency closure orders are issued for any number of particularized reasons, based on a finding that closing the fishery is "necessary to ensure the continued viability of a fish or wildlife population" or to "continue subsistence uses of fish or wildlife, or for public safety reasons."143 NTC does not allege facts that indicate the Board will likely repeat its 2015 action in 2016. As such, NTC has not alleged facts that show that a declaration that the 2015 closure order was unlawful will remedy any of its current or future injuries. Because this court may not render advisory opinions,144 it lacks jurisdiction to consider NTC's challenge to the 2015 closure order.

6. Whether NTC's § 706(1) claims seek to compel discrete actions that the agency is required to take

Defendants' final jurisdictional challenge argues that NTC lacks standing under 5 U.S.C. § 706(1) to compel the Board to act in various ways.145 Section 706(1) governs challenges to agency inaction and allows aggrieved parties to compel "agency action unlawfully withheld or unreasonably delayed."146 Challenges to agency actions, in contrast, are governed by § 706(2).147

In Norton v. S. Utah Wilderness All. ("SUWA"),148 the Supreme Court considered whether the BLM could be compelled to act in conformance with its statutory obligation under the Federal Land Policy and Management Act of 1976 ("FLPMA") to manage certain areas "in a manner so as not to impair the suitability of such areas for preservation as wilderness."149 Among other things, the plaintiffs alleged that BLM's failure to ban the use of off-road vehicles violated this nonimpairment obligation.150 Their suit challenged this failure to act pursuant to 5 U.S.C. § 706(1).151

The Supreme Court rejected the plaintiffs' challenge, holding that § 706(1) may only be used to compel "a discrete agency action that [the agency] is required to take."152 Section 706(1) does not provide a cause of action for suits that allege "[g]eneral deficiencies in compliance"153 or seek "wholesale improvement of [a government] program by court decree;"154 it empowers "a court only to compel an agency `to perform a ministerial or non-discretionary act,' or `to take action upon a matter, without directing how it shall act.'"155 The Court ruled that, under this standard, the plaintiffs' claim failed because the FLPMA was only "mandatory as to the object to be achieved. . . . . It assuredly does not mandate, with the clarity necessary to support judicial action under § 706(1), the total exclusion of [off-road vehicle] use."156

In Ctr. for Biological Diversity v. Veneman,157 the plaintiffs filed a § 706(1) action to compel the U.S. Forest Service to take certain rivers and streams into account while planning for the use and development of federal land, as required by the Wild and Scenic Rivers Act ("WSRA").158 The Ninth Circuit affirmed the district court's dismissal of this claim for lack of jurisdiction, holding that the plaintiffs lacked standing under § 706(1) because their claim was "indistinguishable from the one rejected by the Court in SUWA."159

In accordance with this line of authority, Defendants argue that NTC lacks standing under § 706(1) to seek orders compelling Defendants to take the actions discussed below.

a. Paragraph 46 of the complaint does not assert a specific claim for relief

Defendants' first challenge targets paragraph 46 of the complaint; they argue that this paragraph seeks a broad order compelling the Board to "provide a priority under ANILCA," generally.160 According to Defendants, this claim fails because ANILCA does not specify how the Board must act in order to prioritize subsistence uses.161

This argument misses the mark because paragraph 46 contains background information and does not assert a specific cause of action. Paragraph 46 merely states that Defendants violated ANILCA "in the following ways:" and then paragraphs 47 through 51 specify the alleged violations. Defendants' argument that paragraph 46 seeks a broad order compelling Defendants to generally comply with ANILCA's subsistence priority provisions is unsupported by the complaint.162

b. NTC has standing to seek an order compelling the Board to establish "frameworks" for its delegatee

Defendants next target paragraph 47 of the complaint, which seeks an order compelling Defendants to promulgate substantive standards to guide the in-season manager's exercise of his delegated authority.163 NTC alleges that Defendants' failure to promulgate such standards violates Section 804 of ANILCA. But as Defendants point out, ANILCA contains no such requirement. NTC effectively concedes this point in its opposition by not relying on ANILCA, but rather a regulation, 50 C.F.R. § 100.10(d)(6).

Despite this pleading deficiency, it is clear that NTC's complaint gives Defendants fair notice164 that it is asserting a claim based on 50 C.F.R. § 100.10(d)(6) because Defendants' motion to dismiss addresses the merits of a claim under that regulation.165 Therefore, in the interest of justice, the court will construe NTC's complaint as asserting a claim that Defendants' failure to promulgate substantive standards to guide the in-season manager's decisions violates 50 C.F.R. § 100.10(d)(6).166

50 C.F.R. § 100.10(d)(6) states that the Board may "delegate to agency field officials the authority to set harvest and possession limits, define harvest areas, specify methods or means of harvest, specify permit requirements, and open or close specific fish or wildlife harvest seasons within frameworks established by the Board."167 Defendants argue that this language does not require the Board to establish any "frameworks;" it merely requires the delegatee to "comply with any frameworks that the Board establishes" should the Board, in its discretion, establish such frameworks.168 NTC reads the regulation differently, arguing that it establishes that the "Board may delegate authority, but if it chooses to do so, the delegation must be established within frameworks set by the Board."169

If 50 C.F.R. § 100.10(d)(6) were ambiguous, the Board's interpretation of its own regulation would be given deference.170 It is not; it plainly requires the Board to create "frameworks" to guide its delegatee's actions.171 Section 100.10(d)(6) provides permissive authority to the Board to delegate certain authority to field officials within "frameworks established by the Board." The delegation power is permissive, but the frameworks are mandatory if the Board exercises that power. Because this is a discrete agency action demanded by law, NTC has standing to seek an order compelling the Board to issue § 100.10(d)(6) "frameworks."172

NTC's complaint goes too far, however, in seeking an order directing the Board to promulgate regulations.173 NTC has not established that the frameworks required by § 100.10(d)(6) must come in the form of regulations. The court lacks jurisdiction over that request.

c. NTC lacks standing to seek an order compelling the Board to "oversee" its delegatee's actions

Defendants next challenge NTC's claim that the Board is violating ANILCA by not overseeing the in-season manager's actions.174 Paragraph 47 of the complaint alleges that the Board violated ANILCA by failing "to exercise any independent oversight on actions taken by the in-season manager."175 Paragraph 49176 contains a similar allegation. Defendants argue that "[n]o statute or regulation compels the Board to exercise oversight, as [NTC] has requested that the court do."177 NTC effectively concedes this point by not responding to Defendants' argument.

Because NTC does not identify any legal authority that imposes a mandatory requirement on the Board to "oversee" its delegatee, NTC lacks standing to seek an order compelling the Board to so act.

d. NTC lacks standing to seek an order compelling Defendants to develop an operational plan

Paragraph 53 of the complaint alleges that Anderson's "failure to develop an operation plan . . . for a subsistence gillnet fishery in the Kenai River" was "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with 5 U.S.C. § 706(2)(A)."178 Because NTC is challenging a failure to act, this cause of action is governed by § 706(1), not § 706(2)(A).179 Defendants argue that NTC lacks standing to compel the Board to develop an operational plan because 50 C.F.R. § 100.27(e)(10)(iv)(J) requires NTC to develop the operational plan, not the in-season manager.180 NTC does not respond to this argument, effectively conceding that Defendants are correct.

e. NTC has standing to seek an order compelling the in-season manager to decide its Kenai gillnet permit application, but not one compelling him to grant it

Paragraphs 49 and 53 of the complaint allege that Anderson's failure to issue a permit for a subsistence gillnet fishery in the Kenai River violates ANILCA and the APA.181 Defendants argue that NTC lacks standing to seek an order compelling the Board to issue a permit to NTC for the 2016 fishing season,182 as it requests.183 Defendants are correct.

As an initial matter, the court notes that NTC's complaint is again deficient. NTC's complaint merely alleges that the actions Anderson took with regard to the Kenai gillnet permit violate section 804 of ANILCA184 and the APA, 5 U.S.C. § 706(2)(A).185 In opposition to Defendants' motion to dismiss, NTC relies on neither of these statutes; it relies on the Kenai gillnet fishery regulation, 50 C.F.R. § 100.27(e)(10)(iv)(J).186 Despite this pleading deficiency, it is again clear that NTC's complaint gives Defendants fair notice that it is asserting a claim based on that regulation because Defendants' motion addresses the merits of such a claim.187 In the interest of justice, the court will construe NTC's complaint as asserting a claim that Defendants have violated 50 C.F.R. § 100.27(e)(10)(iv)(J).

The court lacks jurisdiction over NTC's request for an order compelling Defendants to issue the Kenai gillnet permit because nothing in 50 C.F.R. § 100.27(e)(10)(iv)(J) requires the in-season manager to issue that permit. Instead, the regulation gives the in-season manager discretion to determine whether an operational plan is meritorious. NTC does not allege, as it must to have standing to compel the issuance of its permit, that Anderson has determined that its operational plan is meritorious.

That is not the end of the story, however, because NTC also alleges that Anderson abused his authority by not issuing a decision on NTC's application based on the merits of its operational plan.188 NTC argues that "[a]t the very least" the regulation requires Anderson to issue a decision on a gillnet permit application. The in-season manager has two options: (1) if he finds the operational plan meritorious, he must award the permit; or (2) if he finds the operational plan unmeritorious, he must deny the permit.189 Defendants disagree, arguing that the regulation provides merely that the "in-season manager should award" a permit based on the merits of the operational plan, an interpretation that allows the in-season manager discretion to sit on an application indefinitely or deny a permit without regard to the merits of the operational plan.

Defendants' interpretation is inconsistent with the language of the regulation, and therefore is entitled to no deference. The regulation contains mandatory language. It states that one Kenai gillnet permit "will be awarded by the [f]ederal in-season fishery manager . . . based on the merits of the operational plan"190 and, once the permit is issued, "[f]ishing will be allowed from June 15 through August 15 on the Kenai River unless closed or otherwise restricted by [f]ederal special action."191 Under this framework, the in-season manager lacks discretion to withhold a ruling on a permit application indefinitely or to base his permit decision on a consideration other than "the merits of the operational plan."

Finally, Defendants argue that NTC's claim is moot because the Board, at its July 28 meeting, granted NTC the precise relief it is seeking in this case.192 To the contrary, the Board merely ordered Anderson to "work on an operational plan" with NTC for a Kenai River gillnet.193 More than eight months have passed since this order was issued and Anderson still has not decided NTC's application. To put this in context, Anderson approved NTC's Kasilof permit in "about six weeks."194 The Board's July 28 order did not moot NTC's claim.

B. Defendants' Rule 12(b)(6) Attacks

1. NTC's APA cause of action fails to state a claim

"There is no right to sue for a violation of the APA in the absence of a `relevant statute' whose violation `forms the legal basis for [the] complaint.'"195 "The APA is merely a procedural vehicle for review of agency action; it does not confer a substantive right to be free from arbitrary agency action."196 Under this standard, each of NTC's four APA claims fail because none identifies a statute, other than the APA itself, that forms the legal basis of the claim.

2. NTC's remaining Section 804 claim

The only remaining Section 804 claim is NTC's claim that the Board violated ANILCA when it voted not to revoke Anderson's authority.197 In order to state such a claim, NTC must plausibly allege that revoking Anderson's authority was "necessary to provide for the priority" for subsistence uses set forth in Section 804.198

Defendants suggest that NTC is required to allege that nonsubsistence users have been "granted a conflicting right on federal waters of the Kenai."199 This is certainly one type of claim that may be brought under ANILCA,200 but not the exclusive one. For example, the Ninth Circuit has recognized that Section 804 claims also lie where subsistence uses are restricted without that being necessary "to protect the continued viability of fish and wildlife populations,"201 where subsistence use restrictions are implemented without the application of the three criteria set out in Section 804,202 or where subsistence users are denied "a meaningful use preference."203

NTC's complaint alleges that Anderson has made several decisions that violate Section 804, in particular his decision to "close the fishing season for Chinook salmon on the Kenai River before it began, and keep it closed throughout the season"204 and his decision not to issue a Kenai gillnet permit.205 But nothing in NTC's complaint plausibly asserts that Anderson's authority over such decisions must be revoked in order for Defendants to honor their obligations under Section 804—because, for example, Anderson intentionally violated Section 804 and will continue to intentionally violate Section 804. NTC's claim that Section 804 requires the Board to rescind Anderson's authority lacks merit.

V. CONCLUSION

Based on the preceding discussion, Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART as follows: Defendants' motion to dismiss NTC's claim that the Board violated 50 C.F.R. § 100.10(d)(6) by not establishing "frameworks" to guide the delegation of its authority is DENIED; Defendants' motion to dismiss NTC's claim that the in-season manager's failure to decide its Kenai gillnet permit application based on the merits of the operational plan violates 50 C.F.R. § 100.27(e)(10)(iv)(J) is DENIED; in all other respects, Defendants' motion is GRANTED.