Center for Biological Diversity v. Zinke et al

Filing 129

ORDER: re Motions to Dismiss 107 , 110 , 113 , and 116 (see order for full details). Signed by Judge Sharon L. Gleason on 05/09/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiff,
v.
RYAN ZINKE, in his official capacity as
Secretary of the Interior; and UNITED
STATES DEPARTMENT OF THE
INTERIOR,

Case No. 3:17-cv-00091-SLG

Defendant,
STATE OF ALASKA,
DefendantIntervenor,
PACIFIC LEGAL FOUNDATION, et al.,
DefendantIntervenors,
SAFARI CLUB INTERNATIONAL, et
al.,
DefendantIntervenors.
ORDER RE MOTIONS TO DISMISS
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) DefendantIntervenors 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

1

Federal Defendants filed their first motion to dismiss on June 26, 2017 at Docket 62. After CBD
filed its Amended Complaint on September 1, 2017, Federal Defendants filed the instant renewed
motion to dismiss on October 6, 2017.
2

Defendant-Intervenors filed their initial proposed motion to dismiss on May 4, 2017 at Docket
27. A memorandum in support of the motion to dismiss was filed the same day at Docket 28.

3

See Docket 108 (Federal Defendants Mem. in Support); Docket 111 (PLF Mem. in Support);
Docket 114 (Safari Club Mem. in Support); Docket 117 (Alaska Mem. in Support); Docket 119
(CBD Opp.); Docket 123 (Safari Club Reply); Docket 124 (Alaska Reply); Docket 125 (PLF Reply);
Docket 126 (DOI Reply); see also Docket 84 (Amicus Curiae Brief of the States of Wisconsin,
Georgia, Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Missouri, Nebraska, Nevada,
Oklahoma, South Carolina, Texas, and Utah in Support of Defendants).
4

See 81 Fed. Reg. 52247 (Aug. 5, 2016).

5

The Refuges Rule defined predator control as “the intention to reduce the population of

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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
predators for the benefit of prey species” and prohibited it on National Wildlife Refuges in Alaska
“unless it is determined necessary to meet refuge purposes; is consistent with Federal laws and
policy; and is based on sound science in response to a conservation concern.” 81 Fed. Reg.
52247.
The Refuges Rule also prohibited the following specific practices on National Wildlife
Refuges in Alaska:
• Taking black or brown bear cubs or sows with cubs (exception allowed for resident
hunters to take black bear cubs or sows with cubs under customary and traditional
use activities at a den site October 15-April 30 in specific game management units
in accordance with State law);
• Taking brown bears over bait;
• Taking of bears using traps or snares;
• Taking wolves and coyotes during the denning season (May 1-August 9); and
• Taking bears from an aircraft or on the same day as air travel has occurred. The
take of wolves or wolverines from an aircraft or on the same day as air travel has
occurred is already prohibited under current refuge regulations.
81 Fed. Reg. 52247. CBD contends that the Refuges Rule is necessary to prevent these practices
from being utilized pursuant to the policy of “intensive management” implemented by Alaska’s
Board of Game. Docket 104 (Am. Compl.) at 8–9, ¶¶ 30–35.
6

DOI’s authority to regulate National Wildlife Refuges in Alaska derives from the National Wildlife
Administration Act of 1966 (“Administration Act”), as amended by the National Wildlife Refuge
System Improvement Act of 1997 (“Improvement Act”), 16 U.S.C. §§ 668dd-ee, and the Alaska
National Interest Lands Conservation Act (“ANILCA”), 16 U.S.C. §§ 410hh-3233, 43 U.S.C. §§
1602-1784.
7

See infra pp. 9–10.

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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.

8

H.J. Res. 69; see Docket 104 at 11, ¶ 41.

9

The parties refer to both the Joint Resolution and Public Law 115-20. Although CBD refers
almost exclusively to the Joint Resolution, the final enactment was signed into law as Public Law
115-20, and the Federal Defendants and Defendant-Intervenors refer to it as such. The Joint
Resolution and Public Law 115-20 contain identical wording and are effectively the same
legislative action. Therefore, they are essentially interchangeable as used in the pleadings.
However, because Public Law 115-20 is the final legislative action signed by the President, the
Court refers primarily to Public Law 115-20 in this order.
10

8 Fed. Reg. 52009. CBD maintains that it is challenging this action, despite predominately
focusing its analysis on the actions of Congress. See Docket 119 at 46 n.14.
11

5 U.S.C. § 801(b)(2). This provision is referred to as the “Reenactment Provision” and is
discussed in more detail below.

12

Docket 104 at 4, ¶ 12.

13

Docket 1 (Compl.).

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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”)

14

U.S. Const., art. I, § 7, cl. 2.

15

U.S. Const., art. II, § 3. CBD also contends that these unconstitutional actions give rise to
violations of the Administrative Procedure Act, § 5 U.S.C. § 706(2). See Docket 104 at 15, ¶ 74.
Although CBD brings separate constitutional claims against the Joint Resolution passed
pursuant to the CRA and against the CRA itself, the validity of the former claim depends entirely
on the latter. Therefore, the Court evaluates the constitutional claims only as against the CRA.
See infra pp. 16–17.

16

Although CBD identifies congressional actions as the animating force behind the alleged
constitutional violations, it maintains that its challenges are directed toward DOI’s actions—
including treating the Refuges Rule as if it never took effect, removing it from the Federal Register,
and declining to reissue a similar rule. Docket 119 at 46 n.14.
17

Docket 19 (PLF’s Mot. to Intervene); Docket 83 (Order Granting Mots. to Intervene).

18

Docket 29 (Safari Club’s Mot. to Intervene); Docket 83.

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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

19

Docket 54 (Alaska’s Mot. to Intervene); Docket 83.

20

Docket 107.

21

Docket 108 at 15.

22

See supra note 11.

23

Docket 108.

24

See supra note 3.

25

Docket 111.

26

Docket 114.

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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

27

Defendant-Intervenor Alaska incorporates Federal Defendants’ motion with the exception of
Federal Defendants’ assertion that the Refuges Rule was a valid exercise of DOI’s authority,
contained in pp. 5–6 of Federal Defendants’ memorandum at Docket 108. Docket 117 at 2.
Because Alaska’s motion primarily discusses issues beyond the scope of this case, including
Alaska’s right to manage the lands and resources in the state and the extent to which the Refuges
Rule interfered with that right, these issues are not addressed in this order.
28

Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (emphasis omitted).

29

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227
F.3d 1214, 1242 (9th Cir. 2000)).

30

Docket 108 at 15–16. Federal Defendants assert that this Court does not have jurisdiction to
consider CBD’s statutory claim.

31

Safe Air for Everyone, 373 F.3d at 1039.

32

Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d 1130,
1133 (9th Cir. 2013)).

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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

33

Maya, 658 F.3d at 1068.

34

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998).

35

Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008) (citing
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

36

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

37

Id. at 678.

38

Id.

39

Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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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
40

Docket 104 at 3, ¶ 8–9.

41

5 U.S.C. § 801(a)(1)(A).

42

See 5 U.S.C. § 802 (describing the procedures for passing a joint resolution).

43

Section 801(d)(2)(A) allows for the § 802 review of rules issued during the latter stages of an
outgoing Congress. It was utilized in this instance to pass Public Law 115-20. Section

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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

801(d)(2)(A) provides:
In applying section 802 for purposes of such additional review, a rule described
under paragraph (1) shall be treated as though–
(i) such rule were published in the Federal Register (as a rule that shall take
effect) on–
(I) in the case of the Senate, the 15th session day, or
(II) in the case of the House of Representatives, the 15th legislative day,
after the succeeding session of Congress first convenes; and
(ii) a report on such rule were submitted to Congress under subsection (a)(1)
on such date.
Other provisions of the CRA, not relevant here, provide for a different timeline. 5 U.S.C. §
801(a)(3)–(4).
44

As pointed out by the States in their amicus curiae brief, “[a] joint resolution, once signed by the
President, is every bit as much of a law as a bill similarly signed.” Docket 84 at 10 (quoting United
States v, Powell, 761 F.2d 1227, 1235 (8th Cir. 1985)); compare U.S. Const. art. I, § 7, cl. 2 with
U.S. Const. art. I, § 7, cl. 3 (describing that both bills and resolutions require passage by both
houses of Congress and approval of the President).
45

5 U.S.C. § 801(b)(1).

46

5 U.S.C. § 801(b)(2).

47

5 U.S.C. § 801(b)(2).

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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

48

Docket 104 at 12, ¶¶ 50–54.

49

Docket 104 at 15, ¶ 72.

50

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citations omitted).

51

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotations and citations omitted).

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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

52

See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (holding plaintiff must have
standing for each claim that it brings) (citation omitted).
53

Docket 104 at 4–5, ¶ 16.

54

Lujan, 504 U.S. at 561 (internal quotations omitted) (citing Lujan v. Nat’l Wildlife Federation,
497 U.S. 871, 889 (1990)).

55

Id. at 562–63 (“[T]he desire to use or observe an animal species, even for purely esthetic
purposes, is undeniably a cognizable interest for purpose of standing.”); see also Ctr. For
Biological Diversity v. Kempthorne, 588 F.3d 701, 708 (9th Cir. 2009) (recognizing standing where
plaintiffs’ interest in observing a species or its habitat would be harmed by agency action).

56

Docket 111 at 8 (Safari Club states that “the nullified Refuges rule theoretically harms CBD’s

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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

alleged interest in enjoying the wildlife affected by the State-authorized hunting and
management methods.”).
57

See Docket 108 at 22 n.3; Docket 111 at 6–10.

58

Federal Defendants recognize that “as a practical matter, ‘[t]he constitutional component of the
ripeness inquiry is often treated under the rubric of standing.’” Docket 108 at 25 n. 7 (quoting
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (“[I]n many
cases, ripeness coincides squarely with standing’s injury in fact prong.”)). Except for the
prudential component of ripeness, the question of a claim’s ripeness is otherwise whether the
plaintiff has standing to bring suit. Nat'l Treasury Employees Union v. United States, 101 F.3d
1423, 1427–28 (D.C. Cir. 1996) (“Ripeness, while often spoken of as a justiciability doctrine
distinct from standing, in fact shares the constitutional requirement of standing that an injury in
fact be certainly impending. It is only the prudential aspect of ripeness . . . that extends beyond
standing’s constitutional core.” (citing Duke Power Co. v. Carolina Envtl. Study Grp. Inc., 438 U.S.
59, 81–82 (U.S. 1978)) (internal citations omitted)). Moreover, “[p]rudential considerations of
ripeness are discretionary.” Thomas, 220 F.3d at 1142 (9th Cir. 2000); see also Lexmark Intern.,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (“[The request to decline to
adjudicate the case on prudential grounds] is in some tension with our recent reaffirmation of the
principle that ‘a federal court’s obligation to hear and decide’ cases within its jurisdiction ‘is virtually
unflagging.’”) (quotation omitted) (quoting Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591
(2013)). Therefore, the Court declines to dismiss CBD’s claims on the basis of lack of ripeness,
but instead evaluates CBD’s standing to bring its claim regarding the Reenactment Provision.
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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

59

Docket 108 at 25.

60

Docket 111 at 8.

61

Docket 111 at 9.

62

Lujan, 504 U.S. at 560 (internal quotations and citations omitted).

63

Docket 104 at 14–15, ¶ 71.

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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.

64

See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464, 482 (1982) (quotations and alterations omitted).

65

Docket 104 at 15. CBD adds in its reply that “[b]ecause Interior cannot know the bounds of its
lawful authority, Interior will not issue any new similar rule to protect wildlife in the national wildlife
refuges consistent with its overarching statutory mandates, unless and until the Court resolves
the Center’s claim.” Docket 119 at 52.

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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

66

See Docket 111 at 10.

67

Docket 119 at 49–50.

68

In some instances, CBD’s second claim repeats sections of its first claim verbatim, merely
replacing references to the Joint Resolution with references to the CRA. Compare Docket 1 at
13, ¶ 55 with Docket 1 at 15, ¶ 73; compare Docket 1 at 13, ¶ 57 with Docket 1 at 15, ¶ 74.
69

Docket 104 at 13, ¶ 53; Docket 104 at 14, ¶ 69.

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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.

70

Docket 104 at 13, ¶ 57; Docket 104 at 15, ¶ 74.

71

CBD’s third claim, which challenges the Joint Resolution as an ultra vires action beyond the
permissible scope of the CRA, will be referred to as the “Statutory Claim.” The Court will also
address CBD’s claims regarding the APA as part of the section discussing the Statutory Claims.

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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 constitutionallymandated 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

72

U.S. Const., art. I, § 7, cl. 2.

73

Docket 104 at 12, ¶ 52.

74

Docket 108 at 17.

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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.
75

Docket 104 at 14, ¶ 69.

76

462 U.S. 919, 924–925 (1983). “Pursuant to the § 244(c)(1) of the [Immigration and Nationality]
Act, 8 U.S.C. § 1254(c)(1), the immigration judge suspended [Chadha’s] deportation and a report
of the suspension was transmitted to Congress. . . . Once the Attorney General’s recommendation
for suspension of Chadha’s deportation was conveyed to Congress, Congress had the power . .
. to veto the Attorney General’s determination that Chadha should not be deported.” Id.

77

Id. at 927–28 (1983). Deportation proceedings were then reopened, and “Chadha was ordered
deported pursuant to the House action.” Id. at 928.
78

Id. at 958.

79

See Docket 104 at 11, ¶ 41; see also 5 U.S.C. § 801 et seq.

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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 require him to achieve more than Congress sees fit to leave
within his power.” 80
Here, CBD contends that
[b]ecause Congress has not amended any of Interior’s authorities and
obligations with regard to managing the National Wildlife Refuge System,
the CRA, alone or in conjunction with the Joint Resolution, in declaring that
the Refuges Rule “shall not take effect (or continue),” unconstitutionally
impinges upon the authorities and obligations of an Executive Branch
agency to “take Care” that the laws be “faithfully executed.”81
CBD reiterates its assertion that Congress must amend DOI’s underlying statutory
authority before it can disapprove a regulation such as the Refuges Rule, but does not
provide persuasive authority to support that assertion. Federal Defendants respond that
“Plaintiff’s citations to the Take Care Clause should not be construed as adding anything
meaningful to its existing constitutional challenges because the Clause does not provide
an independent cause of action in this case.”82
The authority of an executive agency comes from Congress and is subject to
modification by Congress. 83 CBD appears to assert that whenever Congress delegates

80

Bowsher v. Synar, 478 U.S. 714, 762 (1986) (quoting Myers v. United States, 272 U.S. 52, 85
(1926) (Holmes, J., dissenting)).

81

Docket 104 at 14, ¶ 70.

82

Docket 108 at 23.

83

See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (U.S. 2000)
(An executive agency “may not exercise its authority ‘in a manner that is inconsistent with the

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authority to an executive agency, it cannot alter or restrict that authority unless it first
specifically amends the statutes originally granting that authority. CBD does not provide
authority for this assertion, nor does the Court find a basis for it. 84
By framing its argument as relying on the Take Care Clause, CBD appears to

administrative structure that Congress enacted into law.’”).
84

CBD repeatedly asserts the necessity of Congress’ amending the underlying statutes—
referencing ANILCA, the Administrative Act, and the Improvement Act—in order to lawfully restrict
an agency’s rulemaking authority in the manner allowed by the CRA. Docket 104 at 12, ¶¶ 52–
54; Docket 119 at 26–28. However, CBD provides no authority in its Amended Complaint or in its
briefing to support this assertion except for citations to art. 1, § 7 of the Constitution and INS v.
Chadha, neither of which articulates a requirement that Congress cannot restrict an agency’s
rulemaking authority unless it also amends the underlying statute through which Congress
granted that agency its authority in the first place. Federal Defendants respond that “there is
simply no such requirement—constitutional or otherwise—that Congress take some clerical
action to formally amend or repeal an older law (or regulation) before enacting a new inconsistent
law”; Federal Defendants maintain that “even if there were such a requirement, Congress did
amend the older statutes that led to the issuance of the Refuges Rule by declaring that,
notwithstanding those prior statutes, the Refuges Rule shall have no force and effect.” Docket
108 at 19–20. In CBD’s reply, it characterizes Federal Defendants’ response as an assertion that
Public Law 115-20 constituted an “implied repeal” of DOI’s statutory authority and reiterates its
contention that bicameralism and presentment are required for Congress to withdraw delegated
authority from an agency. Docket 119 at 22, 27–28. However, CBD acknowledges that there is
no direct conflict between Public Law 115-20 and the statutes through which DOI derives its
authority to regulate National Wildlife Refuges in Alaska, thus making it even less clear why repeal
or amendment of those statutes is necessary. See Docket 119 at 22 (stating “there is no conflict
at all” between the Joint Resolution and either ANILCA, the Administration Act, or the
Improvement Act). To the extent that there is inconsistency, Federal Defendants maintain that
“Courts routinely apply newer statutory language at the expense of the old without suggesting
that this inconsistency is, in itself, of any constitutional moment.” Docket 108 at 20 (citing Hellon
& Assocs., Inc. v. Phoenix Resort Corp., 958 F.2d 295, 297 (9th Cir. 1992) (“[T]o the extent that
statutes can be harmonized, they should be, but in case of an irreconcilable inconsistency
between them the later and more specific statute usually controls the earlier and more general
one.”)). Furthermore, in light of the examples identified by PLF in which Congress directed agency
action without amending the underlying statutes, CBD’s assertions appear misplaced. See
Friends of Animals v. Jewell, 824 F.3d 1033, 1045 (D.C. Cir. 2016) (upholding legislation that
required FWS to reissue regulation previously struck down under the Endangered Species Act
despite not amending the ESA itself); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170,
1174 (9th Cir. 2012) (holding that where “Congress has directed the agency to issue [a] rule
without regard to any other provision of statute or regulation . . . Congress has amended the law”
(quotations omitted)). Ultimately, CBD does not provide persuasive authority to support its claim
that Public Law 115-20 is invalid because Congress failed to amend the underlying statutory
provisions.
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argue that if DOI abides by Public Law 115-20’s express disapproval of the Refuges Rule,
then DOI will violate the duty placed upon it by the Constitution to faithfully execute the
laws of the United States, as enacted by Congress. 85 This argument seems to require
selectively defining “the laws of the United States” as referred to in the Take Care Clause
to encompass the statutes granting DOI its authority over National Wildlife Refuges in
Alaska but not Public Law 115-20, validly enacted pursuant to the CRA. Furthermore,
given that the CRA is itself a law passed by Congress pursuant to the mechanisms
outlined in the Constitution, CBD does not adequately explain how the Take Care Clause
mandates that the executive branch should retain authority that Congress, with
Presidential approval, withdrew from it through Public Law 115-20. Consequently, CBD’s
invocations of the Take Care Clause do not adequately state a claim for relief as to either
the Joint Resolution or the Disapproval Provision of the CRA.
In light of the foregoing, the Court finds that even construing all the facts in favor
of CBD, CBD’s constitutional claims fail to adequately allege a plausible basis for relief.
E. Statutory Claims
1. Administrative Procedure Act
CBD contends in the Amended Complaint that “[t]o the extent Interior has relied
upon the Joint Resolution to revoke, refuse to implement, or otherwise nullify the Refuges

85

Federal Defendants assert that the Take Care Clause, based on its plain language, only applies
to the President and not the executive agencies. Docket 108 at 15–17. CBD counters that “the
Supreme Court has repeatedly held that the Clause applies to executive officers and other
subordinates of the President.” Docket 119 at 31 n.7 (citing Printz v. United States, 521 U.S. 898,
922 (1997)). Even if taking the latter view, CBD has failed to state a claim against DOI on the
basis of the Take Care Clause.
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Rule, that decision is contrary to law in violation of the APA,” citing 5 U.S.C. § 706(2). 86
That provision of the APA requires that a court “hold unlawful and set aside agency
actions, findings, and conclusions” if they are problematic for a specific set of reasons,
including being “contrary to a constitutional right, power, privilege, or immunity.” 87
Because CBD does not identify a particular basis for finding the CRA invalid under the
APA, nor provide any specific support for its contention that an APA violation has
occurred, the Court presumes that CBD’s APA claim is relies on the alleged
unconstitutionality of the CRA and Public Law 115-20.

Therefore, unless CBD

establishes a constitutional violation, it cannot state an independent claim under the APA.
In light of the previous analysis of CBD’s constitutional claims, CBD fails to state a
plausible claim for relief under the APA.
2. Ultra Vires Revocation
In its second statutory argument, CBD contends that because the Refuges Rule
fell under § 808 of the CRA, which exempts rules relating to hunting and fishing from
certain provisions of that act, it was thus immune from congressional review and should
have remained in effect. 88 Although Federal Defendants and Defendant-Intervenors PLF
challenge the Court’s subject matter jurisdiction over this claim, the Court finds that it has
jurisdiction and that CBD has failed to state a claim on the merits. 89

86

Docket 104 at 13, ¶ 57.

87

5 U.S.C. § 706(2)(B).

88

CBD maintains that it is not challenging congressional action, although the challenged action—
DOI’s “treat[ment] [of] the Refuges Rule as though such rule had never taken effect” and “decision
to discard the Refuges Rule”—were both directly prompted by Congress. Docket 119 at 46 n.14;
cf. Docket 108 at 40.

89

Federal Defendants and Defendant-Intervenor PLF contend that this Court lacks subject matter

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5 U.S.C. § 808 provides that “any rule that establishes, modifies, opens, closes, or

jurisdiction over the claim for two reasons. First, PLF characterizes CBD’s statutory claim as an
assertion “that Congress misapplied its internal rules in disapproving the Refuges Rule under the
Congressional Review Act,” which is not cognizable in this Court because “the Rules Clause of
the Constitution forbids courts from second-guessing Congress’ application of its internal rules
unless those rules violate some independent constitutional constraint.” Docket 114 at 11–12
(citing Mester Mfg. Co. v. I.N.S., 879 F.2d 561, 571 (9th Cir. 1989)). However, CBD’s challenge
is to agency action taken pursuant to an official act of Congress, and not the application of an
internal rule of Congress.
Second, PLF and Federal Defendants assert that the CRA itself bars this Court from
reviewing CBD’s claim. Docket 114 at 12. 5 U.S.C. § 805 provides that “[n]o determination,
finding, action, or omission under this chapter shall be subject to judicial review.” However, CBD
is not seeking review of action taken under the CRA. Instead, CBD is claiming that DOI, at the
behest of Congress, acted ultra vires in taking action beyond the authority provided by the CRA.
Therefore, § 805’s restriction on judicial review does not apply. The cases discussed by Federal
Defendants do not persuade the Court otherwise. See Docket 108 at 29. Montanans For Multiple
Use v. Barbouletos addressed the Forest Service’s alleged failure to submit certain rules for
congressional review pursuant to 5 U.S.C. § 801(a)(1)(A). 568 F.3d 225, 229 (D.C. Cir. 2009).
The court held that “[t]he language of § 805 is unequivocal and precludes review of this claim.”
Id. However, the same does not appear to be true here, because unlike in Barbouletos—in which
the plaintiffs disputed the agency’s compliance with the procedures of the CRA—CBD challenges
the fundamental authority of the agency to take the action at issue. With regard to Via Christi
Reg'l Med. Ctr., Inc. v. Leavitt, Federal Defendants offer only a footnote from a case from the
Tenth Circuit, whose authority does not bind this court. 509 F.3d 1259, 1271 n.11 (10th Cir. 2007).
Furthermore, Federal Defendants acknowledge that other courts have recognized challenges to
agency non-compliance with the CRA. Docket 108 at 29 (citing United States v. S. Indiana Gas
& Elec. Co., 2002 WL 31427523 (S.D. Ind. Oct. 24, 2002)).
Federal Defendants further assert that CBD would only be able to establish this Court’s
subject matter jurisdiction through the Leedom v. Kyne exception, which permits judicial review of
a claim that an agency acted ultra vires only if the agency acts “in excess of its delegated powers
and contrary to a specific prohibition” in its organic statute and “deprived the professional
employees of a ‘right’ assured to them by Congress.” Leedom v. Kyne, 358 U.S. 184, 188–89
(1958); see Docket 108 at 30. However, notwithstanding Federal Defendants’ speculation, CBD
did not make any assertions with regard to this exception. Therefore, the Court need not analyze
and decide whether CBD has challenged an agency decision that qualifies for the exception. As
described above, CBD has standing to challenge the disapproval of the Refuges Rule, and CBD’s
statutory claim alleges that this disapproval was executed in violation of the CRA. As a claim that
arises under a federal law, and in light of the Court’s rejection of PLF’s and Federal Defendants’
arguments to the contrary, this Court has jurisdiction to consider the claim. Regardless, the Court
determines that CBD’s interpretation of § 808 is incorrect and therefore does not state a plausible
claim for relief.
Finally, to the extent that CBD challenges the CRA’s procedures, the amici States assert
that such “challenge to the CRA’s procedures would be a non-justiciable political question.”
Docket 84 at 12 (citing Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482
F.3d 1157, 1171–72 (9th Cir. 2007)). However, CBD’s claims do not appear or purport to be
challenging Congress’s compliance with its own rules.
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conducts a regulatory program for a commercial, recreational, or subsistence activity
related to hunting, fishing, or camping . . . shall take effect at such time as the Federal
agency promulgating the rule determines.” CBD asserts that this provision of the statute
indicates that “the CRA does not permit Congressional disapproval of regulations covered
by Section 808 in a new session of Congress,” and therefore the Refuges Rule could not
have been properly disapproved under the CRA because “it is plainly a ‘rule that
establishes, modifies, opens, closes, or conducts a regulatory program for a commercial,
recreational, or subsistence activity related to hunting, fishing, or camping’” and therefore
falls under § 808. 90
Rules not falling within § 808 take effect pursuant to the timeline laid out in §§
801(a)(3)–(4). 91 § 801(d)(1) provides for the mechanism used by Congress in passing
the Joint Resolution in this case, allowing a new session of Congress to disapprove a rule

90

Docket 104 at 18, ¶¶ 86, 87 (quoting 5 U.S.C. § 808).

91

5 U.S.C. 801 provides as follows:
(a)(1)(A) Before 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 containing-(i) a copy of the rule;
(ii) a concise general statement relating to the rule, including whether it is
a major rule; and
(iii) the proposed effective date of the rule.
...
(3) A major rule relating to a report submitted under paragraph (1) shall take effect
on the latest of-(A) the later of the date occurring 60 days after the date on which-(i) the Congress receives the report submitted under paragraph (1); or
(ii) the rule is published in the Federal Register, if so published;
...
(4) Except for a major rule, a rule shall take effect as otherwise provided by law
after submission to Congress under paragraph (1).

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passed at the end of the prior session of Congress. CBD contends that because §
801(d)(1) contemplates “any rule for which a report was submitted in accordance with
subsection (a)(1)(A),” then 801(d)(1) does not apply to the Refuges Rule, because
“regulations covered by Section 808 do not require a Congressional Report because
Section 801 only requires such a report ‘[b]efore a rule can take effect,’ and by operation
of Section 808, these regulations take effect irrespective of a Congressional Report.” 92
Therefore, argues CBD, the Refuges Rule was not “submitted in accordance with
subsection (a)(1)(A),” and therefore “the Refuges Rule was not eligible for disapproval
under Section 801(d)(1) in the new session of Congress.” 93
However, CBD’s argument appears to impute more meaning to § 808 than its plain
language will allow. There is nothing in the language of § 808 to indicate that it is intended
to exempt rules related to fishing or hunting from Congressional review altogether. By its
own words the provision allows the agency to determine the date that the regulation “shall
take effect,” thus withdrawing it from the timeline established by §§ 801(a)(3)–(4). Rather
than having the kind of sweeping effect proposed by CBD, the language of the CRA
indicates that § 808 merely alters the effective date of those particular types of agency
rules.
Furthermore, as Federal Defendants argue, “[§ 801(a)(1)(A)] says that an agency
‘shall submit’ a CRA report when it issues ‘a rule,’ and specifies that the report include

92

Docket 104 at 17, ¶¶ 83, 85.

93

Docket 104 at 18, ¶ 88.

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certain information about ‘the rule.’” 94 The Refuges Rule, despite falling within § 808, is
undoubtedly “a rule;” therefore, this Court sees no reason why it would not fall under §
801(a)(1)(A). In addition, § 801(d)(1) provides for review of rules “for which a report was
submitted in accordance with subsection (a)(1)(A) [during the specified time period].”
Here, there is no dispute that a report was submitted for the Refuges Rule, within the time
period specified in § 801(d)(1). Therefore, CBD’s fails to state a cognizable claim for
relief. 95
CONCLUSION
In light of the foregoing, the Motions to Dismiss at Dockets 107, 110, 113, and 116
are GRANTED.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 9th day of May, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

94

Docket 108 at 37.

95

In the section of the Amended Complaint that asserts a statutory claim pursuant to the CRA,
CBD also alleges a violation of the Constitution and the APA, 5 U.S.C. § 706. Docket 104 at 18,
¶ 90 (“To the extent Interior has relied upon the CRA, alone or in conjunction with the Joint
Resolution, to revoke, refuse to implement, or otherwise nullify the Refuges Rule, that decision is
ultra vires and beyond Interior’s authority. Such a decision is in violation of the APA and Interior’s
Constitutional obligation to ‘take Care’ that the laws it is charged with administering are ‘faithfully
executed.’ 5 U.S.C. § 706(2); U.S. Const., art. II, § 3.”). CBD’s unsupported citations to the
Constitution and APA appear to be an attempt to assert claims that depends entirely on a finding
that Federal Defendants’ conduct was indeed ultra vires, as alleged in the statutory claim.
Therefore, in light of CBD’s failure to state a statutory claim, these assertions regarding the
Constitution and the APA similarly fail to state a claim.
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