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Center for Biological Diversity v. Zinke

United States District Court, D. Alaska

May 9, 2018

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
RYAN ZINKE, in his official capacity as Secretary of the Interior; and UNITED STATES DEPARTMENT OF THE INTERIOR, Defendant, STATE OF ALASKA, Defendant-Intervenor, PACIFIC LEGAL FOUNDATION, et al., Defendant-Intervenors, SAFARI CLUB INTERNATIONAL, et al., Defendant-Intervenors.

          ORDER RE MOTIONS TO DISMISS

          SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE

         Plaintiff Center for Biological Diversity (“CBD”) challenges the constitutionality of the Congressional Review Act (“CRA”), pursuant to which Congress recently passed legislation disapproving a Fish and Wildlife Service rule that prohibited certain hunting and trapping practices on National Wildlife Refuges in Alaska. CBD's challenge rests primarily on allegations that the CRA and the congressional oversight of regulations that it allows for violate the separation of powers doctrine.

         Before the Court are the following four motions: (1) Defendants Ryan Zinke and Department of the Interior's Renewed Motion to Dismiss at Docket 107[1]; (2) Defendant-Intervenors Safari Club International, et al.'s Motion to Dismiss at Docket 110; (3) Defendant-Intervenors Pacific Legal Foundation, et al.'s Renewed Motion to Dismiss at Docket 113[2]; and (4) Defendant-Intervenor State of Alaska's Motion to Dismiss at Docket 116. The motions have been extensively briefed.[3] Oral argument was not requested and was not necessary to the Court's decision.

         BACKGROUND

         On August 5, 2016, the U.S. Fish & Wildlife Service (“FWS”) finalized a rule entitled “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska, ” also known as the “Refuges Rule.”[4] The Refuges Rule restricted the use of predator control methods and prohibited certain hunting and trapping methods on National Wildlife Refuges in Alaska.[5] FWS is a bureau within the Department of the Interior (“DOI” or “Interior”).[6]

         The CRA allows for congressional disapproval of rules promulgated by administrative agencies.[7] Acting pursuant to the CRA, 5 U.S.C. § 801 et seq., on February 7, 2017, the House of Representatives introduced H.J. Res. 69 (the “Joint Resolution”) to disapprove the Refuges Rule. On February 16, 2017, the Joint Resolution passed the House by a vote of 225 - 193. On March 21, 2017, the Joint Resolution passed the Senate by a vote of 52 - 47. The Joint Resolution provides:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of the Interior relating to ‘‘Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska'' (81 Fed. Reg. 52247 (August 5, 2016)), and such rule shall have no force or effect.[8]

         On April 3, 2017, President Trump signed the Joint Resolution into law as Public Law 115-20.[9] On November 9, 2017, FWS formally removed the text of the Refuges Rule from the Federal Register.[10] Pursuant to the CRA, Public Law 115-20 prevents DOI from “reissuing” the Refuges Rule “in substantially the same form” or issuing “a new rule that is the substantially the same, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”[11]

         Plaintiff CBD is a non-profit 501(c)(3) organization dedicated to conservation issues with more than 48, 500 members across the United States.[12] On April 20, 2017, CBD initiated the instant case by filing suit in this Court.[13] On September 1, 2017, CBD filed its Amended Complaint, which challenges the constitutionality of the Joint Resolution and the Congressional Review Act and makes a statutory claim under the CRA.

         CBD makes two primary constitutional claims in its Amended Complaint: (1) the CRA and Public Law 115-20 both violate the Article I requirements of Bicameralism and Presentment, [14] and (2) the CRA and Public Law 115-20 both violate Article II's “Take Care” Clause.[15] CBD also contends that Public Law 115-20 represents an ultra vires exercise of congressional authority because the CRA exempts regulations related to hunting and fishing from certain aspects of the law.

         CBD names Ryan Zinke, in his official capacity as Secretary of the United States Department of the Interior, and the Department of the Interior as Defendants (collectively, “Federal Defendants”).[16] Pacific Legal Foundation, Alaska Outdoor Council, Big Game Forever, Kurt Whitehead, and Joe Letarte (collectively, “PLF”) were permitted to intervene in their capacities as non-profit organizations, hunters, and business owners, respectively.[17] Safari Club International and the National Rifle Association of America (collectively, “Safari Club”) were permitted to intervene in their capacities as non-profit organizations asserting interests in hunting and wildlife.[18] The State of Alaska (“Alaska”) was permitted to intervene in order to assert its interests in and authority over the management of federal lands in Alaska.[19]

         On October 6, 2017, Federal Defendants filed their Renewed Motion to Dismiss.[20]Federal Defendants' motion asserts that CBD has failed to establish subject matter jurisdiction or state a claim upon which relief can be granted.[21] More specifically, Federal Defendants assert that the Congressional Review Act and Public Law 115-20 are constitutional, CBD's constitutional challenge to the Reenactment Provision[22] is not ripe, and CBD's statutory claim is precluded by the CRA's judicial review provision.[23]

         Defendant-Intervenors each filed separate motions to dismiss in which they incorporated the arguments of Federal Defendants' motion to dismiss and added additional grounds.[24] Safari Club's motion expresses support for Federal Defendants' motion, asserts that CBD lacks standing, and maintains that case law supports upholding the CRA.[25] PLF's motion incorporates Federal Defendants' motion and emphasizes the argument that the Court lacks subject matter jurisdiction over CBD's statutory claim because the CRA prohibits judicial review.[26] Alaska's motion incorporates Federal Defendants' motion, with one exception, and discusses Alaska's land management authority.[27]

         LEGAL STANDARD

         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 to one aspect of CBD's claim.[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] “[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”[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]

         III. Jurisdiction

         CBD asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331, because it raises a claim that arises under federal law, and pursuant to 28 U.S.C. § 1346, as a suit against the United States. CBD also maintains that this Court has jurisdiction to review agency action pursuant the Constitution and the Administrative Procedure Act, 5 U.S.C. §§ 701-70.[40]

         DISCUSSION

         A. The Congressional Review Act

         1. Overview

         The CRA is a 1996 law which allows for congressional review of executive agency action. The CRA provides that “[b]efore a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report” that includes “a copy of the rule, ” “a concise general statement relating to the rule, ” and “the proposed effective date of the rule.”[41] Congress then has a set period of time during which it can enact a joint resolution disapproving the rule.[42] 5 U.S.C. §801(d)(1) provides:

[I]n the case of any rule for which a report was submitted in accordance with subsection (a)(1)(A) during the period beginning on the date occurring-
(A) in the case of the Senate, 60 session days, or
(B) in the case of the House of Representatives, 60 legislative days,
before the date the Congress adjourns a session of Congress through the date on which the same or succeeding Congress first convenes its next session, section 802 shall apply to such rule in the succeeding session of Congress.[43]

         If a joint resolution is passed by both houses of Congress within the applicable time period and according to the proper procedures, the joint resolution becomes law once signed by the President.[44] Once that occurs, the CRA dictates that the agency rule “shall not take effect” (the “Disapproval Provision”).[45]

         Furthermore, the CRA provides that the invalidated rule “may not be reissued in substantially the same form” and “a new rule that is substantially the same as such a rule may not be issued” (the “Reenactment Provision”).[46] However, reenactment of the same or similar rule is permitted if “the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”[47]

         2. CBD's Challenge

         CBD appears to separately challenge the Disapproval Provision and the Reenactment Provision of the CRA. As to the former, CBD contends that the Disapproval Provision unconstitutionally allows Congress to alter DOI's authority without using bicameralism and presentment to amend the underlying statutes that give DOI its authority over National Wildlife Refuges in Alaska.[48] CBD also asserts that “even if the CRA and/or the Joint Resolution's declarations that a disapproved rule shall have no effect could be found constitutional, the CRA's prohibition on the issuance of a future rule in ‘substantially the same form'” (the Reenactment Provision) violates the separation of powers doctrine by “creat[ing] a large and unconstitutional shadow effect that undermines Interior's rulemaking authority.”[49]

         B. Standing

         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.”[50] 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.”[51]

         Here, CBD challenges two separate parts of the CRA. CBD must have standing for each claim.[52]

         1. Disapproval Provision

         CBD's Amended Complaint alleges that Public Law 115-20's disapproval of the Refuges Rule will cause its members the following harm:

Members of the Center seek out opportunities to study, observe and photograph wildlife (as well as their tracks and other signs) in national wildlife refuges in Alaska, including wolves, grizzly bears and black bears. Because of the Joint Resolution and the CRA, aggressive predator control practices authorized by Alaska's Board of Game are no longer categorically prohibited and thus might now occur on Alaska refuges. Such practices would lead to fewer predators and reduced opportunities to encounter and otherwise enjoy such wildlife on Alaska refuges. This, in turn, threatens to injure the Center and its members' aesthetic, conservation, recreational, scientific, educational and wildlife preservation interests in observing and appreciating these animals in the refuges.[53]

         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.”[54] CBD has adequately alleged injury to its members resulting from the disapproval of the Refuges Rule.[55] The other parties do not appear to directly contest CBD's standing to challenge the Disapproval Provision.[56]

         2. Reenactment Provision

         Federal Defendants and Defendant-Intervenors Safari Club contest CBD's standing to challenge the Reenactment Provision of the CRA.[57] While Federal Defendants emphasize the lack of “ripeness, ” both Federal Defendants and Safari Club maintain that CBD has not identified a redressable injury stemming from the Reenactment Provision, in large part because of the speculative, non-imminent nature of any potential harm.[58]

         Federal Defendants contend Plaintiffs lack standing because “Plaintiff has not alleged that the Department of the Interior has any intent to reissue the Refuges Rule (or any substantially similar rule) in the future and that 5 U.S.C. § 801(b)(2) is what stands in its way-Plaintiff only speculates that the Department of the Interior might be prevented from doing so at some future date.”[59] Similarly, Safari Club asserts that “[f]or the reenactment prohibition to cause harm to CBD's alleged interests, it would have to be likely that Interior would, but for the prohibition, attempt to enact such a regulation.”[60]

         Safari Club maintains that because DOI “likely would not reenact a regulation that the President rejected by signing the Joint Resolution, ” the Reenactment Provision does not give rise to a redressable injury.[61]

         In order to establish Article III standing, a plaintiff must show that it has “suffered an ‘injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”[62] Here, CBD's challenge to the Reenactment Provision rests on its assertion that

[b]ecause Congress has not amended any of Interior's authorities and obligations with regard to managing the National Wildlife Refuge System, by barring any future rule in “substantially the same form” as a disapproved rule, the CRA, alone or in conjunction with the Joint Resolution, unconstitutionally impinges upon the authorities and obligations of an Executive Branch agency to “take Care” that the laws be “faithfully executed.”[63]

         This assertion does not adequately allege an actual or imminent injury to CBD-it alleges only a hypothetical impingement. However, “the Art. III requirements of standing are not satisfied by the abstract injury in nonobservance of the Constitution asserted by citizens.”[64] It is the Disapproval Provision-pursuant to which Congress passed Public Law 115-20-and not the Reenactment Provision-that is the reason why the Refuges Rule is not in effect. Therefore, the Disapproval Provision-and not the Reenactment Provision-is the source of CBD's alleged injury. Any injury caused by DOI's inability to promulgate a substantially similar rule, in the absence of any assertion that DOI would otherwise do so, is too speculative to constitute a concrete or imminent injury and is insufficient to confer Article III standing.

         CBD also contends that “the prohibition on a future rule in ‘substantially the same form' makes it difficult, if not impossible, for Interior to carry out its statutory obligations, as Interior cannot reasonably discern what Congressional mandates still apply, or how, going forward, it can manage the National Wildlife Refuge System in Alaska consistent with those mandates.”[65] CBD provides little support for the assertion that Federal Defendants' actions will preclude DOI from carrying out its statutory duties, except to suggest that Congress's disapproval of the Refuges Rule somehow renders DOI uncertain as to its remaining authority. These unspecified and speculative allegations do not constitute a concrete or imminent injury.

         Even if CBD could establish an injury-in-fact with respect to the Reenactment Provision, CBD has not alleged how invalidating that provision would redress such injury. For if the Disapproval Provision is valid, the Refuges Rule would remain without force and effect, having been disapproved through Public Law 115-20 pursuant that valid statutory provision. Without a stated intention by DOI to reinstate the same or substantially similar rule, the invalidation of the Reenactment Provision would not redress CBD's alleged injury.[66] CBD maintains that because it seeks reinstatement of the Refuges Rule, its alleged injury resulting from the Reenactment Provision is redressable.[67] But although reinstatement might occur if the Disapproval Provision were invalidated, reinstatement is not plausible if only the Reenactment Provision were invalidated. Therefore, CBD has not established a redressable injury and lacks Article III standing to challenge to the Reenactment Provision.

         C. Joint Resolution and the CRA

         The Court turns to the constitutionality of the Disapproval Provision of the CRA and the Joint Resolution enacted pursuant to it. In its Amended Complaint, CBD makes separate challenges to the Joint Resolution and the CRA. However, the bases for the claims are substantively identical.[68] CBD challenges both the Joint Resolution and the CRA on the basis that they violate the separation of powers doctrine because, through them, Congress restricted DOI's authority without amending the underlying statutes that grant DOI its authority to manage National Wildlife Refuges in Alaska.[69] CBD alleges that to the extent the Joint Resolution and the CRA were the bases for congressional disapproval of the Refuges Rule, both were “contrary to law in violation of . . . Interior's obligation to ‘take Care' that the laws it is charged with administering be ‘faithfully executed.'”[70] Thus, while CBD purports to make independent claims against both the Joint Resolution and the CRA, both claims rest entirely on the purported unconstitutionality of the CRA. If the Disapproval Provision of the CRA is constitutional, then the Joint Resolution was a valid exercise of congressional authority under the CRA; if the Disapproval Provision of the CRA represents an unconstitutional exercise of power, then the Joint Resolution was passed pursuant to an unconstitutional statute and is thus invalid. Because the constitutionality of the Joint Resolution is determined by the constitutionality of the CRA, the claims will be considered together in this order. Accordingly, the Court will evaluate CBD's first two claims in its Amended Complaint as a single challenge to the constitutionality of the Disapproval Provision of the CRA (“Constitutional Claim”).[71]

         D. Constitutional Claims to the Disapproval of the Refuges Rule

         Pursuant to the requirements of the CRA, Public Law 115-20 was passed by both houses of Congress and signed by the President. However, CBD asserts that Public Law 115-20 violates the Constitution in two respects: it lacks bicameralism and presentment, and it violates the “Take Care” Clause.

         1. Bicameralism and Presentment

         Article I, Section 7 of the Constitution states that “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it.”[72]Therefore, a bill must have been passed by both houses of Congress and signed by the President in order to become law. The former requirement is known as bicameralism and the latter is known as presentment.

         Here, there is no contention that the CRA and Public Law 115-20 were not both passed in accordance with the constitutional mandates of bicameralism or presentment. However, CBD asserts that “[t]o lawfully constrain or otherwise alter Interior's authority under these statutes, Congress must amend these laws using the constitutionally-mandated process of bicameralism and presentment.”[73] Because Public Law 115-20 limits DOI's rulemaking authority but Congress did not specifically amend the underlying sources of that authority, CBD maintains that a constitutional violation has occurred. Federal Defendants respond that joint resolutions passed pursuant to the CRA are consistent with the constitutional requirements of bicameralism and presentment.[74]

         CBD cites to INS v. Chadha as support for its assertion that for Congress to alter DOI's authority pursuant to the CRA, it must first have “amended through bicameralism and presentment ANILCA, the Administration Act, the Improvement Act, or any other law which provided Interior the rulemaking authorities and mandates executed via the Refuges Rule.”[75] CBD does not explain how Chadha supports its position. In Chadha, the Supreme Court struck down the House of Representatives' practice of using a “legislative veto, ” in which the House of Representatives would unilaterally override a decision of the executive branch to suspend an individual's deportation.[76] To carry out its legislative veto, the House passed a resolution that purported to deport an individual and “was not submitted to the Senate or presented to the President for his action.”[77] The Supreme Court held that “[t]o accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President.”[78]

         Here, Public Law 115-20 was passed by both the House and Senate and submitted to the President for approval, as required by the CRA-which was also passed by both houses of Congress and signed into law by the President.[79] Thus, the requirements of bicameralism and presentment are met and CBD's separation of powers concerns fail to state a plausible claim for relief.

         2. “Take Care” Clause

         Article II, Section 3 of the Constitution provides that “[the President] shall take Care that the Laws be faithfully executed” (the “Take Care Clause”). The Supreme Court has held that “[t]he duty of the President to see that the laws be executed is a duty that does not go beyond the laws or ...


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