United States District Court, D. Alaska
ORDER RE MOTIONS TO DISMISS
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE.
Before
the Court are the following motions: Defendants Donald J.
Trump, Ryan Zinke, and Wilbur Ross's Motion to Dismiss at
Docket 12[1]; Intervenor-Defendant American Petroleum
Institute's Motion to Dismiss at Docket 25; and
Intervenor-Defendant State of Alaska's Motion to Dismiss
at Docket 34. The motions have been fully
briefed.[2]Oral argument on the motions was held on
November 8, 2017.[3] For the following reasons, the motions
will be denied.
BACKGROUND
For
purposes of the motions to dismiss, the facts are briefly
summarized as they are alleged in Plaintiffs' Complaint:
The
Arctic Ocean includes the Chukchi and Beaufort Seas, which
are home to a wide array of wildlife, including polar bears,
walruses, whales, seals, other mammals, birds, and fish, some
of which are endangered.[4] The Atlantic Ocean is also inhabited by
various marine life and contains diverse habitats, including
methane-dependent organisms that live in the undersea canyons
found off the Atlantic continental shelf.[5]Businesses along
the U.S. Atlantic coast are dependent on these habitats for
tourism and commercial fishing.[6]
One of
the reasons that Congress enacted the Outer Continental Shelf
Lands Act (“OCSLA”) was to provide protection to
the environment.[7] Section 12(a) of OCSLA provides that
“[t]he President of the United States may, from time to
time, withdraw from disposition any of the unleased lands of
the outer Continental Shelf.”[8] For the areas that are not
withdrawn, OCSLA provides a process for oil and gas
development activities, which includes the following:
“(1) formulation of a five year leasing plan . . .; (2)
lease sales; (3) exploration by the lessees; (4) development
and production.”[9] Seismic surveying can occur before any of
these stages and typically occurs two to four years prior to
lease sales in order to locate areas with oil and gas
prospects.[10]
On
January 27, 2015, acting pursuant to Section 12(a) of OCSLA,
President Obama withdrew coastal areas in the Arctic's
Beaufort and Chukchi Seas from oil and gas
leasing.[11] President Obama cited as reasons for
this action the importance of these areas to subsistence for
Alaska Natives as well as the need to protect marine mammals
and other wildlife.[12] On December 20, 2016, again acting
pursuant to Section 12(a) of OCSLA, President Obama withdrew
another large portion of the U.S. Arctic Ocean and areas of
the Atlantic Ocean from future oil and gas
leasing.[13] The combined withdrawals in the Arctic
and Atlantic Oceans totaled 128 million acres.[14]
On
April 28, 2017, President Trump issued Executive Order 13795
entitled “Implementing an America-First Offshore Energy
Strategy.”[15] The Executive Order reverses President
Obama's January 27, 2015 and December 20, 2016
withdrawals in the Arctic and Atlantic Oceans. The stated
purpose of the order is to encourage energy exploration and
production of the outer continental shelf. On April 29, 2017,
the Secretary of the Interior issued an order implementing
the Executive Order, calling for expedited consideration of
seismic permitting applications for the Atlantic
Ocean.[16]
There
is industry interest in oil and gas activities in the Arctic
and Atlantic Oceans, including industry groups expressing
interest in conducting seismic surveys in those oceans. After
the President issued the Executive Order, one seismic
industry trade group called for seismic surveying in the
previously withdrawn areas to proceed “without
delay.”[17] Several seismic operations companies
have applied for permits to conduct “deep-penetration
seismic surveys.”[18]
Seismic
surveys use loud, frequent sound pulses to map the sea floor
in order to identify potential oil and gas
deposits.[19] Plaintiffs maintain that these pulses
are harmful to marine mammals as well as fish and shellfish,
causing these animals to suffer loss of hearing and sensory
capabilities, which could result in death.[20] In 2012, the
National Marine Fisheries Service estimated that a
two-month-long seismic survey would disrupt 60, 000 ringed
seals and 4, 600 beluga whales in the Arctic
Ocean.[21]
On May
3, 2017, Plaintiffs brought this action, which challenges
Executive Order 13795. Plaintiffs include the following
organizations: League of Conservation Voters, Natural
Resources Defense Council, Sierra Club, Alaska Wilderness
League, Defenders of Wildlife, Northern Alaska Environmental
Center, Resisting Environmental Destruction on Indigenous
Lands, Center for Biological Diversity, Greenpeace, Inc., and
The Wilderness Society.[22]
Plaintiffs
allege that “President Trump acted in excess of his
authority under Article II of the U.S. Constitution and
intruded on Congress's non-delegated exclusive power
under the Property Clause, in violation of the doctrine of
separation of powers.”[23] Plaintiffs also allege a cause
of action for statutory ultra vires action, alleging
that the President “lacks authority to reverse or undo
Section 12(a) withdrawals” and “[n]either OCSLA
nor any other statute authorizes the President to re-open for
disposition areas withdrawn under OCSLA Section
12(a).”[24] Plaintiffs filed suit against President
Donald J. Trump, who issued the Executive Order, Ryan Zinke,
the Secretary of the Interior, who administers and implements
OCSLA, and Wilbur Ross, Secretary of Commerce, who has the
responsibility for administering and implementing the Marine
Mammal Protection Act and the Endangered Species Act
(collectively the “Federal
Defendants”).[25] The Federal Defendants are all sued in
their official capacities. American Petroleum Institute
(“API”) intervened as a national trade
association of the oil and natural gas
industry.[26] The State of Alaska also intervened,
asserting that some “State offshore land within the
coastal zone of the Beaufort Sea is available for oil and gas
leasing[.]”[27]
LEGAL
STANDARDS
Federal
Defendants and the Intervenors all seek dismissal of
Plaintiffs' Complaint under both Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
I.
Dismissal Under Rule 12(b)(1)
A
“lack of Article III standing requires dismissal for
lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1).”[28] “A Rule 12(b)(1)
jurisdictional attack may be facial or
factual.”[29] In this case, Federal Defendants assert
a facial challenge.[30]“In a facial attack, the challenger
asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal
jurisdiction.”[31]
The
Court “resolves a facial attack as it would a motion to
dismiss under Rule 12(b)(6): Accepting the plaintiff's
allegations as true and drawing all reasonable inferences in
the plaintiff's favor, the court determines whether the
allegations are sufficient as a legal matter to invoke the
court's jurisdiction.”[32] However, “[t]his is
not to say that plaintiff may rely on a bare legal conclusion
to assert injury-in-fact[.]”[33] The plaintiff has the
burden of establishing the elements of Article III
standing.[34]
II.
Dismissal Under Rule 12(b)(6)
When
reviewing a Rule 12(b)(6) motion, a court considers only the
pleadings and documents incorporated into the pleadings by
reference, as well as matters on which a court may take
judicial notice.[35] “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'”[36] A claim is plausible on its face
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”[37] Thus, there
must be “more than a sheer possibility that a defendant
has acted unlawfully.”[38] A court “accept[s]
factual allegations in the complaint as true and construe[s]
the pleadings in the light most favorable to the nonmoving
party.”[39]
Plaintiffs
assert that this Court has jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and
1361.[40]
DISCUSSION
Federal
Defendants move to dismiss Plaintiffs' Complaint for the
following reasons: (1) the Federal Defendants are immune from
suit under sovereign immunity; (2) Plaintiffs do not have a
private right of action; (3) a court cannot issue declaratory
relief against the President of the United States; and (4)
Plaintiffs lack Article III standing. API asserts in its
motion to dismiss that the Court lacks jurisdiction to hear
this case under OCSLA. The State of Alaska incorporates the
arguments made by both parties in its motion to dismiss.
I.
Sovereign Immunity
Federal
Defendants first assert that “the United States is
immune from suit except to the extent Congress unequivocally
and expressly waives that immunity” and Plaintiffs have
not shown that their action falls within a waiver of
sovereign immunity.[41]
Generally,
when an individual brings a lawsuit against the government,
the plaintiff must obtain a waiver of the government's
sovereign immunity, which must be expressed in statutory
text.[42] Federal Defendants assert that the
sovereign immunity waiver set forth in § 702 of the
Administrative Procedure Act does not apply to this case
“because the President is not an ‘agency' and
thus his actions are not reviewable under the
APA.”[43]Although Federal Defendants are correct
in that Plaintiffs are not proceeding under that statute, the
United States Supreme Court has held that there are
circumstances where the sovereign immunity doctrine does not
apply. In Larson v. Domestic & Foreign
Commerce Corp., the Supreme Court held that
sovereign immunity does not apply where:
the officer's powers are limited by statute, his actions
beyond those limitations are considered individual and not
sovereign actions. The officer is not doing the business
which the sovereign has empowered him to do or he is doing it
in a way which the sovereign has forbidden. His actions are
ultra vires his authority and therefore may be made the
object of specific relief.[44]
The
Larson Court also acknowledged a second exception to
the sovereign immunity doctrine: when an officer
“take[s] action in the sovereign's name [and that
action] is claimed to be
unconstitutional.”[45]
In this
case, Plaintiffs allege that the President “acted in
excess of his statutory authority” and “acted in
excess of his authority under Article II of the U.S.
Constitution.”[46]Because Plaintiffs assert that the
President acted beyond his delegated powers enumerated in
OCSLA and the Constitution, the doctrine of sovereign
immunity does not apply, and Plaintiffs are not required to
demonstrate a Congressional waiver of sovereign immunity in
order to bring this suit.
II.
Private Right of Action
Federal
Defendants next contend that “Plaintiffs fail to
identify any statute that provides them a right of action to
enforce their alleged rights under OCSLA and the Property
Clause.”[47]
Relying
on Alexander v. Sandoval and Lonberg v. City of
Riverside, Federal Defendants assert that “private
rights of action to enforce federal law must be created by
Congress” and “courts may not create one, no
matter how desirable that might be as a policy
matter.”[48] Sandoval and Lonberg
each involved the courts determining whether the plaintiffs
had private causes of action to enforce a federal regulation
against a third party.[49]
Plaintiffs
respond that they are not seeking “to step into the
statute-enforcing shoes of the federal government as to third
parties.”[50] Instead, Plaintiffs allege that the
President exceeded his statutory and constitutional authority
and acted ultra vires in issuing Executive Order
13795; therefore, Plaintiffs are not seeking to enforce a
federal law. Courts have on occasion adjudicated causes of
action alleging that the President has exceeded his
constitutional or statutory authority.[51] As the
Supreme Court held in Franklin v. Massachusetts,
“the President's actions may still be reviewed for
constitutionality . . . [even if] they are not reviewable for
abuse of discretion under the APA.”[52] Therefore,
Plaintiffs do not need express Congressional authorization to
maintain these causes of action.[53]
III.
Declaratory Relief
Federal
Defendants next argue that “[c]ourts may not issue
declaratory relief against co-equal branches of
government.”[54] Plaintiffs respond that they are not
seeking an injunction against the President. Rather, they
seek only a declaration that he exceeded his authority. They
maintain that “[w]ith such a finding, Plaintiff's
harm can be redressed by an injunction against the Defendant
Secretaries.”[55]
The
power of this Court to issue a declaratory judgment against
the President is limited at best. In Franklin v.
Massachusetts, a plurality of the Supreme Court held
that an injunction against the President was improper, but
nonetheless the plaintiffs had standing because injunctive
relief against a subordinate federal official would likely
redress the injury alleged.[56]
Federal
Defendants cite to Newdow v. Bush to support their
argument, a case from the District of Columbia District
Court.[57] The plaintiff in Newdow sought
a declaratory judgment and an injunction to prohibit the
inclusion of prayers by invited clergy at the Presidential
Inauguration. Newdow was not a challenge to an
executive order issued by the President. The district court,
quoting Justice Scalia's concurrence in Franklin v.
Massachusetts, stated that the President is generally
immune from declaratory relief as well as injunctive
relief.[58] But the district court acknowledged
there are exceptions to this immunity and that “the
outer boundaries of the immunity remain
unclear.”[59] Plaintiffs in this case are primarily
seeking injunctive relief against subordinate officials; they
do not seek injunctive relief against the
President.[60] In the event that Plaintiffs were to
prevail on the merits, Plaintiffs' alleged harms may well
be adequately redressed if an injunction against subordinate
officials were to issue, in which event the President would
be dismissed. But dismissal of the entire action on this
basis is not warranted.[61]
IV.
Article III Standing
Federal
Defendants maintain that Plaintiffs lack Article III standing
because Plaintiffs have not alleged an imminent,
geographically specific, and particularized
harm.[62] Plaintiffs respond that “the
complaint [provides that] the President's action has the
immediate, purposeful effect of removing an absolute bar to
new oil and gas leasing and development in protected areas of
the Arctic and Atlantic Oceans.”[63]
Article
III standing requires that a plaintiff must have “(1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision.”[64] To establish injury in fact, Plaintiffs
must establish that they suffered “an invasion of a
legally protected interest” that is “concrete and
particularized” and “actual or imminent, not
conjectural or hypothetical.”[65]
A.
Imminent Harm
Federal
Defendants assert that Plaintiffs have not alleged an
imminent harm sufficient to confer Article III
standing.[66] Plaintiffs respond that they have
alleged a substantial risk of future harm sufficient to
support Article III standing.[67]
At the
motion to dismiss stage, “general factual allegations
of injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss [the court] presume[s]
that general allegations embrace those specific facts that
are necessary to support the claim.”[68] “An
allegation of future injury may suffice if the threatened
injury is ‘certainly impending, ' or there is a
‘substantial risk that the harm will
occur.'”[69]
Federal
Defendants assert that although it is “certainly
conceivable that oil and gas exploration and development will
occur somewhere within the [128 million acres Plaintiffs
claim are affected by the Executive Order] at some point in
time, ” it is unclear “when or where such oil and
gas exploration will occur.”[70] Furthermore, Federal
Defendants argue that because there are multiple steps to
obtaining leases and drilling permits in the Arctic and
Atlantic Oceans, there is no risk of imminent
harm.[71]
The
Ninth Circuit recently considered whether a group of
plaintiffs had a sufficient risk of future harm when they had
yet to suffer any actual harm in In re Zappos.com,
Inc.[72]In Zappos, the plaintiffs
brought a class action against Zappos alleging that hackers
had stolen their personal information from Zappos's
servers.[73] The district court dismissed one group
of plaintiffs, holding that the group did not have standing
because their personal information had not yet been used by
hackers and they had not incurred any financial
harm.[74]
The
Ninth Circuit reversed and held that there was Article III
standing as to those plaintiffs. The court discussed the
Supreme Court's holding in Clapper v. Amnesty
International USA.[75] In Clapper, the plaintiffs
challenged the Foreign Intelligence Surveillance Act, which
authorizes surveillance of individuals who are not United
States persons.[76] The plaintiffs-attorneys and human
rights, labor, legal, and media organizations-were United
States persons but argued that they had Article III standing
to challenge the statute “because there [was] an
objectively reasonable likelihood that their communications
[would] be acquired under [the Act] at some point in the
future.”[77] The Supreme Court held that the
plaintiffs did not have standing because the risk of harm to
them was too attenuated.[78]
The
Zappos court also considered a similar Ninth Circuit
case, Krottner v. Starbucks Corp.[79] In
Krottner, a laptop was stolen that contained
Starbucks employees' personal information. At issue was
whether the employees had standing to sue Starbucks for
negligence and breach of contract because there was “no
indication that the private information ha[d] been
misused” by anyone.[80] The Ninth Circuit held that
the plaintiffs had standing, because they had “alleged
a credible threat of real and immediate harm stemming from
the theft of a laptop containing their unencrypted personal
data.”[81] In evaluating whether the plaintiffs had
standing in Zappos, the Ninth Circuit reconciled its
cases with Clapper. It found that the risk of harm
in both Krottner and Zappos was imminent
because the personal information obtained “could be
used to help commit identify fraud or identity
theft.”[82] In contrast, the Circuit observed that
the Supreme Court had found no standing in Clapper
because the risk of harm in Clapper rested on a
“multi-link chain of inferences [that] was thus
‘too speculative' to constitute a cognizable injury
in fact.”[83]
The
risk of harm in this case is similar to Zappos. In
Zappos, the harm had not yet occurred, but there was
a risk of harm from hackers committing identity fraud or
identity theft and those hackers had the means to be able to
commit those crimes. In this case, although third parties
must obtain permits before seismic surveying and other
activities may occur, there is no indication that the
government will not promptly grant such permits, particularly
in light of the Executive Order's stated purpose of
expediting energy production.
The
facts as alleged in the Complaint, when taken as true as
required when considering a motion to dismiss, adequately
support Plaintiffs' allegation that there is an imminent
risk of harm from those activities in several respects.
First,
the Complaint alleges that the stated purpose of the
President's Executive Order is to expedite energy
production in the Arctic and Atlantic Oceans.[84] The Executive
Order mandates expedited consideration of seismic survey
permits, instructs revision of the schedule of oil and gas
lease sales to include annual lease sales in the Arctic and
Atlantic Oceans, and directs review of offshore safety and
pollution-control regulations and guidance documents. The
Executive Order itself demonstrates that oil and gas
exploration activities are intended to be
imminent.[85]
Second,
Plaintiffs allege current industry interest in oil and gas
drilling in the previously withdrawn regions. According to
Plaintiffs' Complaint, “[f]ollowing President
Trump's April 28, 2017, executive order, one seismic
industry trade group called for seismic surveying in the
Atlantic and other frontier areas to proceed ‘without
delay' in order to ‘allow for informed decisions as
a new five-year lease plan is
developed.'”[86]Plaintiffs allege that one seismic
operator has already “sought federal authorizations to
conduct 3-D seismic exploration in the Beaufort Sea nearshore
area” and “[c]ollectively, the four companies
with applications now pending before NMFS have proposed to
run more than 126, 000 linear kilometers of airgun surveys
during the first year of exploration activity in the
region.”[87] In addition, Plaintiffs allege that
“[i]n the Atlantic, at least six seismic operation
companies have applied . . . for permits to conduct
‘deep-penetration seismic surveys, ' deploying
large airgun arrays to prospect for oil and gas deposits
miles beneath the seafloor.”[88]
Plaintiffs
maintain that seismic surveying can cause the following
harmful effects to marine wildlife:
Seismic surveying associated with oil and gas activities uses
very loud, frequent sound pulses from airgun arrays to map
the geology of the sea floor and identify potential oil and
gas deposits. . . . Noise from seismic operations harms
marine mammals. If animals are exposed to high enough levels
of sound, such as exist close to some seismic airguns, they
can suffer shifts in hearing thresholds and hearing loss that
may result in mortality. . . . Seismic surveys also harm
commercially important fish and shellfish.[89]
Plaintiff's
Complaint adequately alleges a risk of imminent harm from
seismic surveying for purposes of Article III
standing.[90]
In
addition, the Complaint alleges that over the past decade,
“the federal government has considered, proposed,
decided on, and/or authorized substantial industrial oil and
gas activities in the Arctic and Atlantic Oceans pursuant to
the OCSLA scheme.”[91] The Complaint alleges
“companies also have sought approval to conduct seismic
surveys even when lease sales are more than four years away
and [are] not included in an existing or proposed five-year
program.”[92] In February 2008, the government held a
leasing sale in the Chukchi Sea, resulting in 487 leases
covering nearly 2.8 million acres.[93] Plaintiffs also allege
that seismic surveying typically precedes oil and gas lease
sales by two to four years in order to locate areas with
promising oil and gas prospects.[94] Therefore, the Complaint
adequately alleges that previous oil and gas exploration and
development activities in the Arctic and Atlantic Oceans
support Plaintiffs' assertion that seismic surveying is
imminent.
The
Executive Order's clear intent to expedite energy
production in the Arctic and Atlantic Oceans, the oil
industry's eagerness to obtain seismic surveying permits,
and the fact that seismic surveying typically precedes oil
and gas lease sales, together indicate that Plaintiffs have
adequately alleged a substantial risk of harm from the
passage of Executive Order 13795 that is
“imminent” for purposes of Article III standing.
B.
Geographic Specificity
Federal
Defendants also assert that Plaintiffs have not alleged a
“geographically specific” injury.[95] The Complaint
alleges that the Executive Order reverses protections in
“approximately 128 million acres of federally owned
portions of the Arctic and Atlantic
Oceans.”[96] Plaintiffs allege that their “use
and enjoyment of these areas and wildlife are affected by the
condition of the areas and health of individual
wildlife.”[97] Federal Defendants take issue with the
fact that Plaintiffs “do not identify any particular
area within that 128 million acres that they use or enjoy
that will be the subject of exploration or development
activities as a result of the challenged Executive
Order[.]”[98] Plaintiffs respond that they
“allege the requisite ‘geographical nexus between
the individual asserting the claim and the location suffering
the environmental impact.'”[99]
In
Center for Biological Diversity v. Kempthorne, the
plaintiffs alleged that regulations permitting the non-lethal
“taking” of polar bears along the Beaufort Sea
and the northern coast of Alaska violated the Marine Mammal
Protection Act and the National Environmental Policy
Act.[100] The Center alleged that its members
had “viewed polar bears and walrus in the Beaufort Sea
region, enjoy doing so, and have plans to
return.”[101]The government challenged the
Center's standing to bring suit. The Ninth Circuit held
that the Center had alleged a sufficiently
“geographically specific” injury to confer
standing.[102]
As the
Ninth Circuit recognized in Kempthorne, the degree
of geographic specificity required depends on the size of the
area that is impacted by the government's
action.[103] In this case, the area impacted by the
Executive Order is 128 million acres located in the Arctic
and Atlantic Oceans.[104] Plaintiffs, similar to the
plaintiffs in Kempthorne, allege that they
“visit or otherwise use and enjoy the Atlantic Ocean,
including near deepwater canyons, the Chukchi and Beaufort
Seas, and coastal regions adjacent to these
waters.”[105] Although the geographic area is very
large, it is discrete and defined. Therefore, Plaintiffs have
alleged a sufficiently specific geographic area for their
alleged harms for Article III standing.
C.
Particularized Harm
Finally,
Federal Defendants maintain that Plaintiffs have not alleged
a harm that is personal and particular to them.[106]
Plaintiffs respond that they allege a particularized injury
because they have alleged “an interest in visiting,
using, inhabiting, studying, and recreating in-or viewing
wildlife that depends on-areas affected by President
Trump's order.”[107]
“For
an injury to be ‘particularized, ' it ‘must
affect the plaintiff in a personal and individual
way.'”[108] The Supreme Court has held that in
environmental cases, “[t]he relevant showing for
purposes of Article III standing . . . is not injury to the
environment but injury to the plaintiff.”[109] Thus,
“environmental plaintiffs adequately allege injury in
fact when they aver that they use the affected area and are
persons ‘for whom the aesthetic and recreational values
of the area will be lessened' by the challenged
activity.”[110]
In
Center for Biological Diversity v. Kempthorne,
discussed above, the Ninth Circuit found that the plaintiffs
had alleged an injury that was particularized by alleging
that
they have viewed polar bears and walrus in the Beaufort Sea
region, enjoy doing so, and have plans to return. If the
plaintiffs' allegations are true, the . . . regulations
threaten imminent, concrete harm to these interests by
destroying polar bears and walrus in the Beaufort
Sea.[111]
In this
case, Plaintiffs allege that exposing animals to seismic
surveying at “high enough levels of sound” will
cause the animals to “suffer shifts in hearing
thresholds and hearing loss that may ...