Kansas Natural Resource Coalition v. United States Department of Interior et al

Filing 35

MEMORANDUM AND ORDER granting 17 Defendants' Motion to Dismiss; denying 30 Plaintiff's Motion to Strike. This case is closed. Signed by District Judge Eric F. Melgren on 4/8/2019. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KANSAS NATURAL RESOURCE
COALITION,
Plaintiff,

vs.

Case No. 18-1114-EFM-GEB

U.S. DEPARTMENT OF THE INTERIOR;
RYAN ZINKE, in his official capacity as
Secretary of the Department of the Interior;
U.S. FISH AND WILDLIFE SERVICE; and
GREG SHEEHAN, in his official capacity as
Principal Deputy Director of the U.S. Fish
and Wildlife Service,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Kansas Natural Resource Coalition (“KNRC”) filed suit against four Defendants:
the United States Department of the Interior; Ryan Zinke, Secretary of the Department of the
Interior; the United States Fish and Wildlife Service; and Greg Sheehan, Principal Deputy Director
of the Fish and Wildlife Service. Plaintiff claims that Defendants unreasonably delayed submitting
to Congress a rule under the Congressional Review Act (“CRA”), 5 U.S.C. § 801, et seq., and
Plaintiff asserts that this alleged failure affects its conservation plan for the lesser prairie chicken.
Defendants filed a Motion to Dismiss (Doc. 17) asserting that (1) the CRA prohibits judicial review
of this issue, (2) Plaintiff cannot establish Article III standing, and (3) Plaintiff’s claim is barred

by the statute of limitations. Because the Court finds that judicial review is precluded, the Court
grants Defendants’ motion.
I.

Factual, Statutory, and Procedural Background

Plaintiff KNRC is an organization of county governments from western Kansas and
Wichita that promotes local government participation in federal and state policy on conservation
and natural resource issues. Defendant Department of the Interior is an agency responsible for
administering the Endangered Species Act (“ESA”) for nonmarine species. Defendant Zinke is
Secretary of the Department of Interior and oversees the administration of the ESA. He is sued
in his official capacity. Defendant Fish and Wildlife Service is an agency of the Department of
Interior and has been delegated day-to-day administration of the ESA, including the listing of
threatened and endangered nonmarine species. Defendant Sheehan is Principal Deputy Director
and Acting Director of the Fish and Wildlife Service and oversees administration of the ESA. He
is sued in his official capacity.
The ESA provides for the listing of endangered and threatened species and imposes federal
regulations to address threats to those species. Endangered species are currently in danger of
extinction throughout all or a significant portion of their range while threatened species are likely
to become endangered within the foreseeable future. The Fish and Wildlife Service considers five
factors when deciding whether a species should be listed. If a species is listed, several significant
federal regulations then follow.
In 2003, the Fish and Wildlife Service developed and announced a Policy for Evaluating
Conservation Efforts When Making Listing Decisions (“PECE”). This policy
provides direction to Service personnel in determining how to consider a
conservation agreement when making a decision on whether a species warrants
listing under the [ESA]. It also provides information to the groups interested in
-2-

developing agreements or plans that would contribute to making it unnecessary for
the Services to list a species under the [ESA].1
PECE establishes two criteria for evaluating state and private conservation plans and provides
guidance on those factors.2
Congress enacted the CRA in 1996. The CRA requires agencies to submit new rules to
Congress for review before they can go into effect. 5 U.S.C. § 801(a)(1)(A) states
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.
Another provision of the CRA, 5 U.S.C. § 805, provides that “[n]o determination, finding, action,
or omission under this chapter shall be subject to judicial review.” Plaintiff alleges that PECE was
not submitted to Congress as required by the CRA. The Fish and Wildlife Service has treated
PECE as being in effect since 2003.
The lesser prairie chicken is a small species of grouse found in Kansas, Colorado,
Oklahoma, Texas, and New Mexico. In 2012, the Fish and Wildlife Service proposed to list the
species as threatened under the ESA. States, property owners, and conservation groups worked
with the Western Association of Fish and Wildlife Agencies to develop and implement a rangewide conservation plan for the species. KNRC developed a Lesser Prairie Chicken Conservation,
Management and Study Plan in 2013, to study and conserve the lesser prairie chicken, which its
member counties have adopted.

1

Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 68 Fed. Reg. 15100-02,
15101, 2003 WL 1568842 (Mar. 28, 2003).
2

Id.

-3-

In 2014, the Fish and Wildlife Service listed the lesser prairie chicken as a threatened
species. Participants in the conservation plan challenged the listing of the species. In 2015, the
District Court for the Western District of Texas struck down the listing.3 The court found that the
Fish and Wildlife Service did not properly follow its own rule, PECE, in conducting the analysis.4
Thus, the court determined that it was appropriate to vacate the listing of the lesser prairie chicken
as a threatened species. The Fish and Wildlife Service withdrew its listing.
Petitions to relist the lesser prairie chicken as a threatened species were subsequently filed.
In 2016, the Fish and Wildlife Service began reviewing (and is currently reviewing) these petitions
to determine whether listing of the lesser prairie chicken as a threatened species is warranted.
Plaintiff filed suit in this Court on April 10, 2018. In this action, Plaintiff claims that the
Fish and Wildlife Service’s treatment of PECE as lawfully in effect (despite failing to submit it to
Congress) creates substantial regulatory uncertainty and litigation risk which undermines
Plaintiff’s conservation plan. Plaintiff requests a declaration that PECE was unlawfully withheld
or unreasonably delayed from Congress. In addition, Plaintiff requests that the Court require the
Fish and Wildlife Service to submit PECE to Congress.
Defendants filed a Motion to Dismiss arguing that (1) there is no judicial review on this
issue, (2) Plaintiff lacks standing, and (3) the statute of limitations has run.
II.

Legal Standard

Defendants bring their motion pursuant to Fed. R. Civ. P. 12(b)(1) and (6). First, they
assert that the Court lacks subject matter jurisdiction. Motions to dismiss for lack of subject matter

3

Permian Basin Petroleum Ass’n v. Dep’t of Interior, 127 F. Supp. 3d 700 (W.D. Tex. 2015).

4

Id. at 707-24.

-4-

jurisdiction generally take one of two forms: (1) facial attacks, which question the sufficiency of
the allegations in the complaint; or (2) factual attacks, which challenge the content of the
allegations regarding subject matter jurisdiction.5
They also contend that Plaintiff fails to state a claim under which relief may be granted.
The Court must decide “whether the complaint contains ‘enough facts to state a claim to relief that
is plausible on its face.’ ”6 A claim is facially plausible if the plaintiff pleads facts sufficient for
the Court to reasonably infer that the defendant is liable for the alleged misconduct.7 Under Rule
12(b)(6), the Court must accept as true all factual allegations in the complaint, but need not afford
such a presumption to legal conclusions.8 Viewing the complaint in this manner, the Court must
decide whether the plaintiff’s allegations give rise to more than speculative possibilities.9 If the
allegations in the complaint are “so general that they encompass a wide swath of conduct, much
of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to
plausible.’ ”10
III.

Analysis

Defendants assert three arguments as to why Plaintiff’s Complaint should be dismissed.
They state that (1) the CRA precludes judicial review of the issue, (2) Plaintiff lacks standing, and

5

Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995).

6

Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
7

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

8

Iqbal, 556 U.S. at 678–79.

9

See id. at 678.

10

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570).

-5-

(3) the statute of limitations bars Plaintiff’s claim. The Court will only address Plaintiff’s first
argument.
In this case, Plaintiff claims that the Fish and Wildlife Service violated the CRA (5 U.S.C.
§ 805) by failing to submit PECE (a rule) to Congress and the Comptroller General when it issued
it in 2003. Plaintiff does not actually take issue with PECE. Instead, Plaintiff is in favor of it and
wants it submitted to Congress to apparently make it binding.
Defendants argue that § 805 is unambiguous and precludes judicial review. Defendants
cite several cases to support their argument. Plaintiff agrees that the statutory language, read in
isolation, could support Defendants’ argument that judicial review is precluded. Plaintiff asserts,
however, that other text, canons of statutory interpretation, and legislative history do not support
this interpretation. Plaintiff also directs the Court’s attention to several cases in which district
courts considered a rule’s effect under the CRA.11
Pursuant to 5 U.S.C. § 801(a)(1)(A), before a rule can take effect, a federal agency
promulgating the new rule is required to submit to Congress and the Comptroller General (1) a
copy of the rule, (2) a concise statement relating to the rule (including whether it is a major rule),
and (3) the proposed effective date. After the agency does so, there is a timeframe in which
Congress must act to disapprove of such rule with a joint resolution.12 If Congress disapproves of
the rule, the President may sign or veto the joint resolution.13 If the joint resolution passes, the

11

See infra note 39 and accompanying text.

12

5 U.S.C. § 802(a).

13

8 U.S.C. § 801(b)-(c).

-6-

rule “shall not take effect (or continue).”14 Another provision of the CRA, 5 U.S.C. § 805, provides
that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial
review.”
“The goal of statutory interpretation is to ascertain the congressional intent and give effect
to the legislative will.”15 Generally, a court looks to the plain language of the statute and if the
meaning is clear, the analysis ends.16 Context also matters in determining whether a statute’s
meaning is plain or ambiguous.17
Section 805 states that no omission shall be subject to judicial review. By its plain
language, § 805 prohibits judicial review of the Fish and Wildlife Service’s omission of sending
PECE to Congress. Nothing in the plain language of the statute indicates otherwise.
Indeed, several district courts and at least one circuit court have adopted this viewpoint.18
In Montanans for Multiple Use v. Barbouletos,19 the plaintiffs alleged that the United States Forest
Service failed to submit its proposed management plan to Congress in violation of the CRA.20 The
District Court for the District of Columbia found that there was little case law interpreting § 805,
but the case law available “support[ed] the plain reading of the statute” which precluded judicial

14

8 U.S.C. § 801(b)(1).

15

In re Taylor, 899 F.3d 1126, 1129 (10th Cir. 2018) (quotation marks and citation omitted).

16

Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1245 (10th Cir. 2009) (citation omitted).

17

Dalzell v. RP Steamboat Springs, LLC, 781 F.3d 1201, 1207 (10th Cir. 2015).

18

As will be noted below, the Tenth Circuit addressed the CRA in a footnote.

19

542 F. Supp. 2d 9 (D.D.C. 2008).

20
Id. at 20 (referring to the CRA as the Small Business Regulatory Enforcement Fairness Act (“SMREFA”).
The CRA was part of the SBREFA, and some courts refer to it as the SBREFA.

-7-

review.21 The court noted that the statute was unambiguous.22 The court disagreed with the
plaintiffs’ argument that if the court were to interpret § 805 as prohibiting judicial review that it
would “impliedly repeal the grant of judicial authority under the APA to declare whether certain
regulations are effective and in accordance with law.”23 Instead, the court determined that the
statutory language unambiguously provided that “no determination, finding, action, or omission
under this chapter shall be subject to judicial review.”24 The court concluded that “[t]he ‘chapter’
to which this provision refers is Chapter 8 [the CRA].” Thus, it found that it was “statutorily
barred from reviewing defendants’ alleged failure” to submit their plans and rules to Congress and
dismissed the case for lack of subject matter jurisdiction.25
The District of Columbia Circuit of Appeals affirmed the district court’s decision.26 In
considering the CRA and the specific language of § 801(a)(1)(A) and § 805, the circuit concluded
that § 805’s language was unequivocal and “denies courts the power to void rules on the basis of
agency noncompliance with the Act.”27 Thus, the circuit found that it precluded review of the
claim.28 Several other district courts concluded similarly.29

21

Id.

22

Id.

23

Id.

24

Id. (quoting 5 U.S.C. § 805) (emphasis added).

25

Id. at 20-21.

26

Montanans for Multiple Use v. Barbouletos, 568 F.3d 225 (D.C. Cir. 2009).

27

Id. at 229.

28

Id.

29
See United States v. Carlson, 2013 WL 5125434, at *14-15 (D. Minn. 2013) (stating that § 805, and the
great weight of case law, precludes review of an agency’s failure to comply with the CRA); Forsyth Mem’l Hosp. v.
Sebelius, 667 F. Supp. 2d 143, 150 (D.D.C. 2009) (noting that § 805 precludes judicial review); In re Operation of the
Missouri River Sys. Litig., 363 F. Supp. 2d 1145, 1173 (D. Minn. 2004) (finding that the Fish and Wildlife’s

-8-

Furthermore, there is authority in the Tenth Circuit addressing the CRA. Although the
statement may be dicta, the Tenth Circuit stated in a footnote that § 805 prohibits judicial review.30
It noted that a party’s reliance on the CRA was misplaced and stated that “[t]he [CRA] specifically
precludes judicial review of an agency’s compliance with its terms.”31 More recently, the D.C.
Circuit Court of Appeals again found that the statutory language in § 805 forecloses judicial review
of an agency’s non-compliance with the act.32
Only two district court cases specifically have found that § 805 does not preclude relief
when an agency fails to submit a rule to Congress under the CRA. In the first case, in an
unpublished decision, the Southern District of Indiana found that § 805 did not preclude review of
whether the EPA violated the CRA by failing to submit an agency rule to Congress. 33 That court
concluded that § 805 was ambiguous because it was susceptible to two different meanings, one

designation of a critical habitat was not a major rule and that its determination was not subject to judicial review
pursuant to § 805), vacated on other grounds, 421 F.3d 618 (8th Cir. 2015); United States v. Am. Elect. Power Serv.,
218 F. Supp. 2d 931, 949 (S.D. Ohio 2002) (determining that the plain language in § 805 was a jurisdictional bar to
reviewing a claim that a rule was not in effect because it was not submitted to Congress pursuant to § 801(a)(1)(A));
Tex. Sav. & Cmty. Bankers Ass’n v. Fed. Hous. Fin. Bd., 1998 WL 842181, *7 and n.15 (W.D. Tex. 1998) (finding
that the language in § 805 “could not be plainer” and explicitly precluded the defendant’s alleged omission from
review).
See Via Christi Reg’l Med. Ctr. v. Leavitt, 509 F.3d 1259, 1271 n.11 (10th Cir. 2007). The parties disagree
over the importance of the Tenth Circuit’s statement. Plaintiff even filed a Motion to Strike (with an accompanying
9-page memorandum) seeking to strike a paragraph from Defendants’ response to Plaintiff’s second notice of
supplemental authority (Doc. 30). In Plaintiff’s motion to strike, it contends that Defendants improperly and untimely
try to raise the argument of the importance of the Via Christi footnote. Plaintiff also contends that Defendants
previously abandoned their argument when they failed to address it in their reply brief. The Court disagrees.
Defendants cited Via Christi to the Court in its Motion to Dismiss. The supplemental authority that Plaintiff provided
to the Court makes note of the Via Christi decision, and Defendants are entitled to address it. Furthermore, the Court
must consider Tenth Circuit opinions regardless of the parties’ citations to them or the parties’ beliefs on whether the
statements are dicta.
30

31

Id. (citing 5 U.S.C. § 805).

See Washington All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 346 (D.C. Cir. 2018)
(holding that § 805 prohibited judicial review and upholding the dismissal of allegations of procedural irregularities
under the CRA).
32

33

United States v. S. Ind. Gas & Elec. Co., 2002 WL 31427523, at *6 (S.D. Ind. 2002).

-9-

being that “Congress only intended to preclude judicial review of Congress’ own determinations,
findings, actions, or omissions made under the CRA after a rule has been submitted to it for
review.”34 It found that allowing agencies to evade review of their omissions “would be at odds
with the purpose of the CRA, which was to provide a check on administrative agencies’ power to
set policies and essentially legislate without Congressional oversight.”35 Furthermore, it found
that § 805’s reference to “under this chapter” was only applicable to findings and determinations
by Congress because agencies do not making findings and determinations under the chapter. 36
Thus, the court concluded that it had jurisdiction “to review whether an agency rule is in effect
that should have been reported to Congress pursuant to the CRA.”37
More recently, the United States District Court for the District of Idaho addressed the
issue.38

After considering the language in the statute, the district and circuit court opinions

addressing the statute,39 the legislative history, and policy concerns, the court ultimately found that

34

Id. at *5 (emphasis added).

35

Id.

36

Id.

37

Id. at *6.

38

Tugaw Ranches, LLC v. U.S. Dep’t of the Interior, --- F. Supp. 3d ---, 2019 WL 938865 (D. Idaho 2019).

The court acknowledged the numerous district court and circuit court opinions finding that the statute’s
language was plain and unambiguous. Still, the court found that the analysis in these cases was lacking and did not
provide clear guidance. Id. at *4-5. The court also noted several district and circuit court opinions finding that § 805
did not prohibit judicial review, including Nat’l Res. Defense Council v. Abraham, 355 F.3d 179, 201-02 (2d Cir.
2004) and United States v. Reece, 956 F. Supp. 2d 736, 743-46 (W.D. La. 2013). Id. at *5. This Court finds that the
majority of the latter opinions that the District of Idaho cited to only peripherally addressed § 805 and did not
specifically address the effect of the language in § 805 to its review of the issue in the case before it.
39

-10-

§ 805 was ambiguous and did not clearly prohibit judicial review.40 Thus, it concluded that it had
jurisdiction to hear the claims in the case.41
Although most of the above-cited decisions are not binding on this Court, the Court finds
that the more persuasive authority is the line of cases holding that § 805 is unambiguous and
precludes judicial review. Furthermore, there is a statement by the Tenth Circuit that § 805
prohibits judicial review of an agency’s compliance with its terms. 42 Even if this statement is
dicta, it is indicative of the stance that the Tenth Circuit would take if the issue was squarely before
it. The Court finds it unnecessary to consider the legislative history because the statute is
unambiguous.43
Accordingly, the Court finds that § 805 prohibits judicial review of the Fish and Wildlife’s
omission of submitting PECE to Congress. Thus, the Court dismisses Plaintiff’s claim for lack of
subject matter jurisdiction.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 17) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike (Doc. 30) is DENIED.

40

Id. at *9.

41

Id.

Via Christi Reg’l Med. Ctr., 509 F.3d at 1271 n.11 (stating that “[t]he [CRA] specifically precludes judicial
review of an agency’s compliance with its terms.”).
42

43
Here, there is no pre-enactment legislative history. Instead, there is only post-enactment legislative history
(although it is dated approximately 20 days after enactment). The Court also notes that, in 2017, legislation was
introduced to add an additional provision to § 805. If adopted, the statute would add a provision stating:
“Notwithstanding subsection (a), a court may determine whether a Federal agency has completed the necessary
requirements under this chapter for a rule to take effect.” 2017 Cong US HR 26, 115th Cong., 1st Session (Jan. 5,
2017). The effect of this legislation would allow for judicial review of whether an agency followed the proper rulemaking procedures (the action that Plaintiff complains about in this case). This proposed additional language
reinforces that the current statutory language prohibits judicial review of agency actions. Otherwise, it would not be
necessary to add. Congress, however, has not passed this legislation since it was proposed.

-11-

This case is closed.
IT IS SO ORDERED.
Dated this 8th day of April, 2019.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

-12-