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League of Conservation Voters v. Trump

United States District Court, D. Alaska

March 19, 2018

DONALD J. TRUMP, et al., Defendants.



         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.


         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withdraw from disposition any of the unleased lands of the outer Continental Shelf.”[8] For the areas that are not withdrawn, OCSLA provides a process for oil and gas development activities, which includes the following: “(1) formulation of a five year leasing plan .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]


         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]


         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, 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 ...

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