Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 1395 (9th Cir. 1989)

TANANA FISH & GAME ASSOCIATION, Plaintiff-Appellant,v.STATE OF ALASKA, Defendant-Appellee.

No. 88-4112.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 10, 1989.* Decided Aug. 30, 1989.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.


MEMORANDUM** 

Tanana Fish and Game Association ("Tanana") timely appeals the district court's order dismissing Tanana's action against the state of Alaska ("Alaska") for lack of subject matter jurisdiction.1  We affirm.

DISCUSSION

This action constitutes a challenge to an Alaska state regulation barring the people of Tanana from selling the roe they obtain incidental to their subsistence harvests of fall chum salmon. Tanana claims the regulation violates section 804 of the Alaska National Interest Lands Conservation Act ("ANILCA"). This section provides that "subsistence uses" of fish and wildlife are entitled to priority over all other uses. 16 U.S.C. § 3114.

The district court's jurisdiction to consider a claim that a state government has failed to provide for the priority of subsistence uses in accordance with ANILCA is grounded in section 807 of the Act. This section provides that an interested person or organization may file such a claim in the United States District Court for the District of Alaska "upon exhaustion of any state or federal (as appropriate) administrative remedies which may be available." 16 U.S.C. § 3117(a).

The district court found it lacked subject matter jurisdiction over this case because plaintiff had failed to exhaust its administrative remedies. The district court's order dismissing the case does not itself specify the basis for its judgment that plaintiff has not exhausted administrative remedies. It appears from the reporter's transcript, however, that the district court grounded its decision on plaintiff's failure specifically to allege exhaustion in its complaint and to petition the State Board of Fisheries to amend the regulation in question. The district court gave the plaintiff an opportunity to amend its complaint to address this jurisdictional defect, but the plaintiff declined, preferring instead to appeal.

As the record stands before us, this case emanates from a complaint that suffers from a fatal jurisdictional flaw. The statute relied upon by the plaintiff makes it clear that exhaustion of available state or federal remedies is a prerequisite to jurisdiction in the federal courts. Thus, an appropriate reference to exhaustion--or a statement to the effect that exhaustion is not possible or would be futile--must appear in the complaint. Here, Judge Kleinfeld thoughtfully reviewed the plaintiff's motion to dismiss as a possible source of demonstrating subject matter jurisdiction, see Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983), but he found it wanting. He disagreed with the plaintiff's contention that no remedies existed to be exhausted. Nevertheless, he explicitly gave the plaintiff an opportunity to amend to allege futility of exhaustion, or some other basis to find subject matter jurisdiction. The plaintiff refused this offer, choosing instead to bring this issue to us.

We affirm Judge Kleinfeld's ruling. The complaint was defective, and it was never corrected. To reverse his ruling and to remand for trial would be tantamount to forcing the district court to try this case on the basis of a complaint that purposefully omits a required jurisdictional predicate.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3

 1

Tanana also asks us to consider whether the district court's denial of Tanana's motion to expedite consideration of Tanana's motion for a preliminary injunction was an abuse of discretion. We decline to address this issue on the ground that it is moot in view of our affirmance of the district court's dismissal