League of Conservation Voters v. Trump

          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 ...