The Volokh Conspiracy

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Before the National Injunction: Hynes v. Grimes Packing Co.


One of the questions that is often asked about the national injunction is how a court could consider a regulation to be invalid—for reasons of general significance, not ones specific to this plaintiff–yet still give a remedy specific to this plaintiff. How does that actually work? Recently for another project I was reading Hynes v. Grimes Packing Co., 337 U.S. 86 (1949). It offers an interesting snapshot of challenges to administrative agency decisions before the emergence of the national injunction.

The Secretary of the Interior had issued a public land order, which among other things put some excellent salmon fishing waters into an Indian reservation. The Secretary then amended the Alaska Fisheries General Regulations to forbid salmon fishing in these waters except by members of the tribe and their licensees. These regulatory changes were of extreme significance for commercial salmon fishermen, because of how they interacted with the White Act protecting Alaskan fishing grounds. That statute prescribed fines and prison sentences, and held that all fishing boats and equipment used in violation of the Act "shall be forfeited to the United States."

Seven commercial fishing companies sued. Their argument was that the public land order was "invalid as a whole," and their requested relief was an "injunction forbidding criminal proceedings aimed at excluding them from fishing in the coastal waters of Karluk Reservation."

The Court upheld the public land order. But it held that the regulatory amendment was "void as a whole" because it conflicted with a proviso of the White Act that forbade monopolies.

So what should be the remedy? To a court that thought it could give equitable remedies protecting non-parties, the answer would presumably be clear: a prohibition on criminal prosecutions against anyone fishing on the salmon grounds in question. After all, the challenge is what would now be called "facial," the regulatory amendment was held "void as a whole," there was no reason to distinguish one commercial fishing company from another for purposes of the dispute, other cases brought by other plaintiffs would be duplicative, and so on.

But that is not what the Court did. The Court vacated the decrees of the district court and appellate court (even though they had enjoined prosecutions of the plaintiffs, their legal theory was different) and remanded to the district court with instructions that the Secretary should have thirty days "to give consideration to the effect of our decision." After thirty days, if no steps were taken by the Secretary, the district court "shall enter a decree enjoining the defendant Hynes and all acting in concert with him substantially as ordered in the permanent injunction," which had been plaintiff-protective.

Hynes is also of interest for the debate over remand without vacatur. The Court does hold that the regulation is invalid and does remand, but it does not "vacate" the regulation. So it looks a little like remand without vacatur, since the agency is given time to decide how to proceed. On the other hand, the Court's approach is more consistent with traditional equitable principles, because its remedy is focused on the parties. In the background there is an injunction, suspended as it were, and conditioned on the response of the Secretary of the Interior. That injunction, if it comes, will be plaintiff-protective.