United States District Court, D. Alaska
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 50 is Plaintiffs Alaska Wilderness
League, Center for Biological Diversity, Defenders of
Wildlife, Greenpeace, Inc., League of Conservation Voters,
Natural Resources Defense Council, Northern Alaska
Environmental Center, Resisting Environmental Destruction on
Indigenous Lands, Sierra Club, and The Wilderness
Society's (“Plaintiffs”) motion for summary
judgment. Defendants Donald J. Trump, Ryan Zinke-later
replaced by David Bernhardt[1]-and Wilbur Ross (“Federal
Defendants”) opposed and moved for summary judgment at
Docket 55. Intervenor-defendant American Petroleum Institute
(“API”) opposed Plaintiffs' motion and
cross-moved for summary judgment at Docket 58.
Intervenor-defendant State of Alaska (“Alaska”)
opposed Plaintiffs' motion and moved for summary judgment
at Docket 60. Plaintiffs replied in support of their motion
at Docket 62. Federal Defendants replied in support of their
motion at Docket 63. API replied in support of its motion at
Docket 65. Alaska replied in support of its motion at Docket
67.[2]
Oral argument was held on November 9, 2018 in Anchorage,
Alaska.[3]
BACKGROUND
In
1953, the Outer Continental Shelf Lands Act
(“OCSLA” or “the Act”) was enacted
into law.[4] When enacted, OCSLA had two stated
purposes.[5] The first purpose was “[t]o provide
for the jurisdiction of the United States over” OCS
lands.[6]The second purpose was “to authorize
the Secretary of the Interior to lease such lands for certain
purposes.”[7] OCSLA authorized the Secretary of the
Interior to “provide for the assignment or
relinquishment of leases, for the sale of royalty oil and
gas” on OCS lands.[8] This case concerns Section 12(a) of the
Act, which provides as follows: “The President of the
United States may, from time to time, withdraw from
disposition any of the unleased lands of the outer
Continental Shelf.”[9] In 2015 and 2016, President Obama
issued three memoranda and one executive order withdrawing
certain areas of the Outer Continental Shelf from
leasing.[10] On April 28, 2017, President Trump
issued Executive Order 13795, which purported to revoke the
2015 and 2016 withdrawals.[11]
On May
3, 2017, Plaintiffs filed their Complaint in this case.
Plaintiffs brought two claims: an alleged violation of the
Constitution's Property Clause, [12] and an alleged violation
of the President's statutory authority under Section
12(a).[13] On July 21, 2017, the Court granted
API's motion to intervene.[14] On September 1, 2017, the
Court granted Alaska's motion to intervene.[15] On March 19,
2018, the Court denied Federal Defendants', API's,
and Alaska's motions to dismiss.[16] On June 8, 2018,
Plaintiffs filed their summary judgment motion.[17] On July 18,
2018, Federal Defendants filed their motion for summary
judgment.[18] On August 2, 2018, API and Alaska filed
their cross-motion and motion, respectively, for summary
judgment.[19]
JURISDICTION
The
Court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1331.
LEGAL
STANDARD
This
case requires the Court to interpret a statute.[20] When
interpreting a statute, a court looks first to the
statute's text, and then, if necessary, to the context in
which the statute was enacted. It is a “fundamental
canon of statutory construction that the words of a statute
must be read in their context and with a view to their place
in the overall statutory scheme.”[21]
I.
Statutory Text
Courts
“begin with the understanding that Congress says in a
statute what it means and means in a statute what it says
there.”[22] Judicial “inquiry begins with the
statutory text, and ends there as well if the text is
unambiguous.”[23]
II.
Context
If the
text of the statute is ambiguous, a court may rely on
contextual clues to discern Congress's
intent.[24] A judge may look to a statute's
structure, as a “statute should be construed so that
effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or
insignificant.”[25] Courts may also find congressional
intent in legislative history, [26] in how Congress treated a
term in prior statutes, [27] and in Congress's stated purpose
in enacting the statute.[28] In addition, although a court may
consider actions subsequent to the statute's enactment,
“subsequent legislative history will rarely override a
reasonable interpretation of a statute that can be gleaned
from its language and legislative history prior to its
enactment.”[29]
DISCUSSION
I.
Federal Defendants' Procedural Challenges
Federal
Defendants maintain that Plaintiffs fail to overcome several
procedural hurdles: standing, ripeness, sovereign immunity,
and the lack of a private right of action.[30] The Court
previously found for Plaintiffs as to each of these issues at
the motion to dismiss stage.[31]
“In
response to a summary judgment motion, . . . the plaintiff .
. . must set forth by affidavit or other evidence specific
facts which for purposes of the summary judgment motion will
be taken to be true.”[32] Here, Plaintiffs have set
forth sufficient specific facts to support their standing and
right to pursue a private cause of action.[33] Accordingly,
the Court declines to reconsider these issues at the summary
judgment stage.[34]
II.
The Text of Section 12(a)
At
issue in this case is the meaning of Section 12(a) of OCSLA:
“The President of the United States may, from time to
time, withdraw from disposition any of the unleased lands of
the outer Continental Shelf.”[35] Plaintiffs maintain that
this text only authorizes a President to withdraw lands from
disposition; it does not authorize a President to revoke a
prior withdrawal. Plaintiffs assert that under the Property
Clause of the U.S. Constitution, the authority to revoke a
prior withdrawal was not delegated by this statute to the
President and thus remains vested solely with
Congress.[36]
Federal
Defendants respond that “Section 12(a) does not cabin
the President's authority in any way, other than to
clarify that lands must be unleased in order to be
withdrawn.”[37] Federal Defendants maintain that
“Plaintiffs' reading of Section 12(a) renders the
phrase ‘from time to time' unnecessary”
because the phrase “may . . . withdraw” implies
the ability to do so “from time to
time.”[38] API asserts that Section 12(a)'s
“discretionary formulation-authorizing action that
‘may' be taken ‘from time to
time'-carries with it a power to revise action previously
taken under the delegated authority.”[39]
The
text of Section 12(a) refers only to the withdrawal of lands;
it does not expressly authorize the President to revoke a
prior withdrawal. Congress appears to have expressed one
concept-withdrawal-and excluded the converse- revocation.
Furthermore, the phrase “from time to time”
appears to clarify the President's withdrawal authority
by giving him the discretion to withdraw lands at any time
and for discrete periods; the phrase does not specifically
give the President the authority to revoke a prior
withdrawal.[40] In any event, some withdrawals appear to
have been intended to be permanent; others, for a limited
time.[41] President Obama's 2015 and 2016
Executive Orders each stated it was intended to apply
“for a time period without specific expiration, ”
and contained language indicating that all future leasing was
intended to be prohibited in the areas encompassed by the
withdrawals.[42] The wording of President Obama's
2015 and 2016 withdrawals indicates that he intended them to
extend indefinitely, and therefore be revocable only by an
act of Congress.
Federal
Defendants, API, and Alaska cite to various nonbinding
authority to suggest that the phrase “from time to
time” in Section 12(a) gives the President the power to
revoke a prior withdrawal. Illinois Central Railroad Co.
v. United States is one example.[43] Congress had
enacted laws that granted the State of Illinois certain
rights of way on certain federal public lands to construct a
railroad. But previous laws had reserved certain federal
public lands for military purposes. At issue was whether the
subsequent land grant to Illinois included the land
previously reserved in military fortifications. In
particular, the Court of Claims referenced a 1798 law that
“enable[d] the President to erect fortifications in
such places as the public safety should, in his opinion,
require; and he was authorized to cause them to be erected
under his direction, from time to time, as he should judge
necessary.”[44] The Court of Claims noted that in light
of the statute's grant of authority for the President to
erect fortifications, “it may be the proper
construction of the acts of Congress that they, by
implication, confer on him the power also, when the place
designated and reserved becomes no longer necessary for the
purposes of the reservation, to direct its abandonment by the
War Department[.]”[45] But the Court of Claims did not
directly resolve this issue, as it determined that the
President had not directed the abandonment of the reserved
military lands at issue in that case.[46] Illinois
Central's dicta regarding the maintenance of
military fortifications during the 1850's is of little
assistance in interpreting the scope of the President's
authority in 2017 to revoke withdrawals of unleased lands in
the OCS.
API
also cites to State v. McBride.[47] That case
involved the following Washington state constitutional
provision: “The supreme court shall consist of five
judges . . . . The legislature may increase the number of
judges of the supreme court from time to time . . .
.”[48] In 1901, the Washington legislature
passed an act temporarily increasing the number of supreme
court judges from five to seven; the act also provided that
beginning in October 1902, the court would again seat only
five judges. A litigant asserted the portion of the act that
purported to decrease the number of judges back to five was
void because the state constitution contained no express
provision authorizing a decrease. The Washington Supreme
Court disagreed, and held: “If, therefore, the
legislature has power to increase the number of judges as
occasion or convenience requires, and there is no restriction
upon a decrease, except below five, it follows that a
decrease may be had to this minimum when necessity or
occasion requires, of which necessity or occasion the
legislature is the exclusive judge.”[49] In its
opinion, the Washington Supreme Court discussed the phrase,
“from time to time, ” as follows:
These words are defined by lexicographers to mean
“occasionally.” The word
“occasionally” is defined to mean: “As
occasion demands or requires; as convenience requires;
accidentally, or on some special occasion.” But
whatever may be the technical meaning of the words, they
certainly cannot be held to mean that the legislature may not
decrease the number of judges after the increase thereof. If,
therefore, the legislature has power to increase the number
of judges as occasion or convenience requires, and there is
no restriction upon a decrease, except below five, it follows
that a decrease may be had to this minimum when necessity or
occasion requires, of which necessity or occasion the
legislature is the exclusive judge. Again, the fact that the
constitution has placed a minimum limit and permitted an
increase in the number of judges is a strong inference that
the increased number may be reduced to the minimum.
Furthermore, the legislative and the executive branches of
the state government have placed this construction upon their
powers, and, where these coordinate branches have construed a
constitutional provision and acted upon it, great weight will
be given thereto.[50]
In the
instant case, the President is not “the exclusive
judge” of determining the OCS lands subject to leasing;
that power ultimately is vested in Congress under the
Property Clause. Moreover, Congress has not acted to approve
or reject Executive Order 13795. And as the McBride
court acknowledged, “the fact that the [Washington
state] constitution has placed a minimum limit and permitted
an increase in the number of judges is a strong inference
that the increased number may be reduced to the
minimum.”[51] But no such minimum limit exists in
Section 12(a) with respect to the lands available for leasing
in the OCS.
API and
Alaska rely on other cases that are inapposite for a variety
of reasons.[52] Some cases involved statutes that called
for agencies to balance multiple factors in their
decisionmaking process, thus reflecting a strong inference
that Congress intended to authorize the reconsideration of a
prior agency decision.[53] In other cases, the relevant subject
matter in the statute or other authority was, by nature,
subject to change.[54] Some cases only stood for the general
principle that statutes which grant authority can be
overridden by later statutes withdrawing that
authority.[55]
The
text of Section 12(a) indicates that Congress expressly
granted to the President the authority to withdraw unleased
lands from the OCS; but the statute does not expressly grant
to the President the authority to revoke prior withdrawals.
However, the statute's inclusion of the phrase
“from time to time” renders the text of Section
12(a) ambiguous.[56] On the one hand, the phrase could be
interpreted simply to make clear the President's
authority to make withdrawals at any time and for discrete
periods of time, as well as make withdrawals that extend
indefinitely into the future unless and until revoked by
Congress. On the other hand, the phrase could be interpreted
more broadly to accord to each President the authority to
revoke or modify any prior withdrawal. In light of the
ambiguity created by this aspect of Section 12(a)'s text,
the Court will look to the context of the statute in an
effort to discern the intent of Congress.
III.
The Context of Section 12(a)
A.
The Structure of OCSLA
Section
8 of OCSLA, titled “Leasing of Outer Continental Shelf,
” authorizes the Secretary of the Interior to lease OCS
lands “[i]n order to meet the urgent need for further
exploration and development of the oil and gas
deposits” beneath the OCS.[57] Section 12 of the Act, as
enacted in 1953, was titled “Reservations.” Most
of the provisions of that section address restrictions on the
private use of OCS lands, and no subsection expands private
sector use of these lands.[58]
Plaintiffs
maintain that Sections 8 and 12(a) have different roles, with
Section 8 promoting leasing and Section 12(a) being
“entirely protective.”[59]Federal Defendants do not
directly address this argument. API responds by citing
uplands legislation that, unlike Section 12, expressly
granted revocation authority to the President.[60] Alaska
maintains that “it cannot be said that Congress
evidenced an intent in the statute for the Secretary to
withhold anything from oil and gas
leasing.”[61]
The
Court agrees with Plaintiffs on this point. Interpreting
OCSLA to promote expeditious leasing in Section 8, but
according to the President authority to prohibit leasing in
specified areas in Section 12(a), gives effect “to all
[of OCSLA's] provisions, so that no part will be
inoperative or superfluous, void or
insignificant.”[62] Therefore, OCSLA's structure
promotes the view that Section 12(a) did not grant revocation
authority to the President.
B.
OCSLA's Legislative History and Prior Statutes
The
parties all address the import of the legislative history of
Section 12(a). Federal Defendants cite to the Senate report
in which the Committee on Interior and Consular Affairs
stated that “it was vesting withdrawal authority
‘comparable to that which is vested in [the President]
with respect to federally owned lands on the
uplands.'”[63] Federal Defendants maintain that the
President was accorded the authority to revoke withdrawals on
the uplands; thus, it maintains Section 12(a) should be
interpreted to do the same.[64]
Plaintiffs
contend that “when Congress intended to pair the power
to protect public land from disposition with the power to
reverse such protections, [including in legislation related
to the uplands, ] it did so expressly.” Plaintiffs cite
as examples the Forest Service Organic Administration Act of
1897, the Pickett Act of 1910, and a 1935 act
“concerning use of the Rio
Grande[.]”[65] The Forest Service Organic
Administration Act of 1897 authorized the President to
“vacate altogether” public forest
reservations.[66] The Pickett Act authorized the President
“at any time in his discretion” to
“temporarily withdraw” public lands, and provided
that such “withdrawals or reservations” would be
“in force until revoked by [the President] or by an Act
of Congress.”[67] The 1935 statute regarding use of the
Rio Grande river was similarly explicit in giving the
President not only the power to “withdraw, ” but
also the power to “revoke[].”[68]
“Actions pursuant to statutes that grant two-way
authority, ” Plaintiffs assert, “are irrelevant
to interpreting a statute, like section 12(a), that specifies
only the authority to withdraw.”[69]
Plaintiffs
cite to other uplands legislation that Congress had enacted
prior to OCSLA's passage that expressly granted to the
President only the authority to set aside lands. For example,
in the Forest Reserve Act of 1891, Congress provided that the
President “may, from time to time, set apart and
reserve” forested public lands.[70] Similarly,
the Antiquities Act of 1906 authorized the President to
reserve public lands “of historic or scientific
interest.”[71] Neither of these laws explicitly granted
revocation authority to the President. When enacting OCSLA,
the Senate Committee on Interior and Consular Affairs
expressed its intent only with regard to the President's
authority to withdraw; it said nothing about any authority to
revoke a prior withdrawal.[72] The Court finds Congress's
silence in Section 12(a) as to according the President
revocation authority was likely purposeful; had Congress
intended to grant the President revocation authority, it
could have done so explicitly, as it had previously done in
several (but not all) of its previously enacted uplands laws.
Plaintiffs
also maintain that “[w]hen it chooses the wording of a
statute, Congress is presumptively aware of Executive Branch
interpretations of similar language in parallel
statutes.”[73] Plaintiffs assert that prior Attorneys
General had issued opinions “dating back nearly a
century, that if Congress wanted the Executive to have such
[revocation] authority, Congress would need to make that
explicit.”[74] For example, an 1878 Attorney General
opinion stated that “if lands have been once set apart
by the President in an order for military purposes, they
cannot again be restored to the condition of public lands, or
sold as such, except by an authority of
Congress.”[75] Federal Defendants respond that
“those opinions pertain to reservations, not
withdrawals, and statutes enacted and opinions issued well
before the enactment of OCSLA, and have no relevance
here.”[76] But the Court finds those opinions
persuasive, because Congress has used the terms
“withdrawal” and “reservation”
interchangeably for many decades.[77] Indeed, in 1953, Congress
titled Section 12, which contains the withdrawal provision at
issue here, as “Reservations.”[78] Therefore,
the Attorney General opinions support the view that Congress
intended to authorize the President only to withdraw OCS
lands from leasing in Section 12(a) of OCSLA, and did not
authorize the President to revoke a prior
withdrawal.[79]
Federal
Defendants also cite the deletion from a prior version of
this section of the bill of a “limitation of
[withdrawal] authority to withdrawals in the interest of
national security” as evidence that “Congress
intended to provide increased discretion to the
President.”[80] Although this deletion gives the
President greater discretion in making withdrawals, it does
not authorize the President to revoke any of those
withdrawals.
C.
The Purposes of OCSLA
Federal
Defendants and API also cite OCSLA's purposes-to further
oil and gas development on OCS lands and “to achieve
national economic and energy policy goals, assure national
security, reduce dependence on foreign sources, and maintain
a favorable balance of payments in world trade”-to
support their claim “that Congress did not intend to
foreclose presidential modification of withdrawals under
OCSLA § 12(a).”[81]
The
first purpose of OCSLA, as enacted in 1953, was “[t]o
provide for the jurisdiction of the United States over”
OCS lands.[82] Whether the President has revocation
authority does not implicate this purpose; this case is about
the scope of Executive authority, not federalism. The second
purpose was “to authorize the Secretary of the Interior
to lease such lands for certain
purposes.”[83] Although Congress clearly sought more
leasing, it did not seek unbridled leasing. For the Act also
provided that it was to “be construed in such manner
that the character as high seas of the waters above the outer
Continental Shelf and the right to navigation and fishing
therein shall not be affected.”[84] And Congress
included Section 12-”Reservations”-to limit
leasing activity. The fact that Congress expressly granted
the President the authority to withdraw OCS lands from
leasing, but did not expressly grant the President the
authority to revoke such withdrawals, is not inconsistent
with the second purpose of OCSLA as enacted in 1953,
particularly as Congress itself retained the authority to
revoke prior presidential withdrawals pursuant to the
Property Clause of the U.S. Constitution.
Federal
Defendants further contend that “Plaintiffs'
interpretation of the statute leads to the illogical result
that a President may perform a de facto repeal of
OCSLA by withdrawing the entire OCS from exploration and
development and that any such withdrawal is permanent and
immutable unless revoked by an act of
Congress.”[85] But as the Attorney General opinions
reveal, Congress has previously authorized the President to
tie future Presidents' hands. As one of the Attorney
General opinions cited by Plaintiffs states, “My
predecessors have held that if public lands are reserved by
the President for a particular purpose under express
authority of an act of Congress, the President is thereafter
without authority to abolish such
reservation.”[86] President Eisenhower seems to have
agreed on this point. His establishment of the Key Largo
Coral Reef Preserve, the first withdrawal under Section
12(a), sought to “preserve[] the scenic and scientific
values of this area unimpaired for the benefit of future
generations.”[87] And while Federal Defendants are
technically correct that Section 12(a) would permit a
President to permanently withdraw all of the unleased lands
on the OCS, Congress could readily reverse such an action by
either revoking the withdrawal itself[88] or amending
Section 12(a) to expressly provide that a future President
could also revoke a prior presidential withdrawal.
D.
OCSLA's Subsequent History
Plaintiffs
assert that subsequent legislative history, in which Congress
“added procedural checks on the Executive's
discretion to dispose of outer continental shelf lands”
but did not amend Section 12(a), “confirms that . . .
[Congress] continued to view section 12(a) as providing only
withdrawal authority.”[89] Alaska characterizes
Congress's inaction as
“unremarkable.”[90]Federal Defendants maintain
that, “[o]f the only twelve actions taken pursuant to
OCSLA Section 12(a), at least five represent modifications of
prior withdrawals and two of them - or seventeen percent -
represent reductions of prior withdrawals, ” to which
Congress did not object. Therefore, Federal Defendants
assert, Congress has acquiesced to the President's
authority to revoke under the statute.[91]
The
Court finds Defendants' arguments unavailing.
Congress's decisions not to challenge the small number of
prior revocations falls far short of the high bar required to
constitute acquiescence.[92] Furthermore, Congress's
subsequent inaction with respect to Section 12(a) lacks
sufficient support for this Court to draw any appropriate
inference.[93] Too little information about
Congress's limited inaction exists to
“override” the Court's interpretation of
Section 12(a) based on that section's “language and
legislative history prior to its
enactment.”[94]
Based
on the foregoing, the Court finds that Section 5 of Executive
Order 13795, which purported to revoke prior presidential
withdrawals of OCS lands for leasing, is unlawful, as it
exceeded the President's authority under Section 12(a) of
OCSLA.
IV.
Remedy
“Plaintiffs
request a declaration that Section 5 of the Order is unlawful
and invalid[.]”[95] The Court will vacate Section 5 of
Executive Order 13795.[96] As a result, the previous three
withdrawals issued on January 27, 2015 and December 20, 2016
...