Natural Resources Defense Council, Inc. et al v. U.S. Department of the Interior et al
Filing
53
OPINION AND ORDER: re: (26 in 1:18-cv-04596-VEC), MOTION to Dismiss filed by U.S. Department of the Interior, Daniel Jorjani, U.S. Fish and Wildlife Service, (44 in 1:18-cv-08084-VEC), MOTION to Dismiss filed by U.S. Department of the Interior, D aniel Jorjani, U.S. Fish and Wildlife Service, (29 in 1:18-cv-04601-VEC), MOTION to Dismiss filed by U.S. Department of the Interior, Daniel Jorjani, U.S. Fish and Wildlife Service. For the foregoing reasons, these cases are consolidated pursuant to Fed. R. Civ. P. 42(a)(2) under Docket No. 18-CV-4596, and Defendants' motions to dismiss are GRANTED IN PART and DENIED IN PART. The Audubon Plaintiffs' claim that the Jorjani Opinion was issued without notice and comment in violation of 5 U.S.C. § 553 is dismissed with prejudice.The motions are denied as to all other claims. The Clerk of Court is respectfully directed to (a) terminate the open motions at Dkt. 26 in 18-CV-4596, Dkt. 29 in 18-CV-4601, and Dkt. 44 in 18-CV-8084; (b ) consolidate these three cases under docket number 18-CV-4596; and (c) close 18-CV-4601 and 18-CV-8084. All further submissions in this now-consolidated case must be filed under docket number 18-CV-4596. The parties must appear for a status conferen ce on August 16, 2019, at 10:00 A.M. No later than August 9, 2019, they must submit a joint letter (a) setting forth their views on whether a status conference is necessary or will be beneficial; (b) proposing a schedule for the production of the adm inistrative record; (c) proposing a schedule for briefing cross-motions for summary judgment; and (d) discussing any other matters they believe pertinent to expeditiously litigating this case. SO ORDERED., ( Status Conference set for 8/16/2019 at 10:00 AM before Judge Valerie E. Caproni.) (Signed by Judge Valerie E. Caproni on 7/31/2019) Filed In Associated Cases: 1:18-cv-04596-VEC, 1:18-cv-04601-VEC, 1:18-cv-08084-VEC(ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
NATURAL RESOURCES DEFENSE COUNCIL, :
INC.; NATIONAL WILDLIFE FEDERATION, :
:
Plaintiffs,
:
:
-against:
:
U.S. DEPARTMENT OF THE INTERIOR; U.S. :
FISH AND WILDLIFE SERVICE; DANIEL
:
:
JORJANI, in his official capacity as the person
exercising authority of the Solicitor of the Interior, :
:
Defendants. :
-------------------------------------------------------------- X
-------------------------------------------------------------- X
NATIONAL AUDUBON SOCIETY; AMERICAN:
BIRD CONSERVANCY; CENTER FOR
:
BIOLOGICAL DIVERSITY; DEFENDERS OF :
WILDLIFE,
:
:
Plaintiffs,
:
:
-against:
:
U.S. DEPARTMENT OF THE INTERIOR; U.S. :
FISH AND WILDLIFE SERVICE; DANIEL
:
:
JORJANI,
:
Defendants. :
-------------------------------------------------------------- X
-------------------------------------------------------------- X
STATE OF NEW YORK; STATE OF
:
CALIFORNIA; STATE OF ILLINOIS; STATE :
OF MARYLAND; COMMONWEALTH OF
:
MASSACHUSETTS; STATE OF NEW JERSEY; :
STATE OF NEW MEXICO; STATE OF
:
OREGON,
:
:
Plaintiffs,
:
:
-against:
:
:
Page 1 of 36
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 7/31/2019
18-CV-4596 (VEC)
OPINION AND ORDER
18-CV-4601 (VEC)
18-CV-8084 (VEC)
U.S. DEPARTMENT OF THE INTERIOR; U.S.
FISH AND WILDLIFE SERVICE; DANIEL
JORJANI, in his official capacity as Principal
Deputy Solicitor exercising the authority of the
Solicitor of the Interior,
:
:
:
:
:
:
Defendants. :
-------------------------------------------------------------- X
VALERIE CAPRONI, United States District Judge:
Environmental interest groups and various States brought these three actions to vacate a
December 2017 memorandum by Daniel Jorjani, Principal Deputy Solicitor of the United States
Department of the Interior (“DOI”), that interprets the Migratory Bird Treaty Act (“MBTA”) to
permit the “incidental” taking, or killing, of migratory birds. See 18-CV-4596 Dkt. 1 (Compl.);
18-CV-4601 Dkt. 1 (Compl.); 18-CV-8084 Dkt. 6 (Compl.). Defendants—Principal Deputy
Solicitor Jorjani, DOI, and the United States Fish and Wildlife Service (“FWS”)—have moved to
dismiss all three actions for lack of Article III standing and for failure to state claims under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., among other grounds. See 18CV-4596 Dkts. 26-28; 18-CV-4601 Dkts. 29-31; 18-CV-8084 Dkts. 44-46. The Court,
meanwhile, has directed the parties to show cause why the cases should not be consolidated
pursuant to Fed. R. Civ. P. 42(a)(2). See 18-CV-4596 Dkt. 51; 18-CV-4601 Dkt. 44; 18-CV8084 Dkt. 64. For the following reasons, these cases are CONSOLIDATED, and Defendants’
motions to dismiss are GRANTED IN PART and DENIED IN PART.
BACKGROUND 1
Because Defendants’ motions largely concern procedural matters; because the briefs
submitted by the parties and by several former DOI officials as amici curiae (see 18-CV-4596
1
Throughout this opinion, the Court accepts Plaintiffs’ factual allegations as true. See, e.g., Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 56-57 (2d Cir. 2016) (facial motions under Fed. R. Civ. P. 12(b)(1)); Gibbons
v. Malone, 703 F.3d 595, 599 (2d Cir. 2013) (motions under Fed. R. Civ. P. 12(b)(6)). Most of the background
information related in this section, however, is undisputed or subject to judicial notice.
Page 2 of 36
Dkt. 44 ex. 1) so thoroughly address the topic; and because the Court will provide further details
throughout this opinion, only a brief description of the MBTA and the agency activities giving
rise to this litigation is necessary.
In 1916, the United States and Great Britain, acting on Canada’s behalf, entered into a
treaty to protect migratory birds. See Convention Between the United States and Great Britain
for the Protection of Migratory Birds, Gr. Brit.-U.S., Aug. 16, 1916, 39 Stat. 1702. In 1918, the
United States enacted the MBTA to implement the treaty and similar treaties with other
countries. 2 The MBTA generally provides that
it shall be unlawful at any time, by any means or in any manner, to pursue,
hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for
sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for
shipment, ship, export, import, cause to be shipped, exported, or imported,
deliver for transportation, transport or cause to be transported, carry or cause
to be carried, or receive for shipment, transportation, carriage, or export,
any migratory bird, any part, nest, or egg of any such bird, or any product,
whether or not manufactured, which consists, or is composed in whole or
part, of any such bird or any part, nest, or egg thereof.
16 U.S.C. § 703(a). In its current form, the MBTA makes any violation of its provisions a
misdemeanor punishable by a fine of up to $15,000 and imprisonment for up to six months. Id.
§ 707(a). Any knowing “take” of any migratory bird “by any manner whatsoever” with intent to
sell it is a felony punishable by a fine of up to $2,000 and imprisonment for up to two years. Id.
§ 707(b). Although the statute does not define “take,” it is colloquially understood in the wildlife
context to refer to an act by which a person achieves possession or control over an animal. An
FWS regulation generally defines the term to mean “to pursue, hunt, shoot, wound, kill, trap,
2
Throughout the twentieth century, the United States entered into similar treaties with Mexico, Japan, and
the Soviet Union. See Convention Between the United States of America and the Union of Soviet Socialist
Republics Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R, Nov. 19, 1976,
29 U.S.T. 4647; Convention Between the Government of the United States of America and the Government of Japan
for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Japan-U.S., Mar. 4,
1972, 25 U.S.T. 3329; Convention Between the United States of America and Mexico for the Protection of
Migratory Birds and Game Mammals, Mex.-U.S., Feb. 7, 1936, 50 Stat. 1311.
Page 3 of 36
capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 50
C.F.R. § 10.12.
For decades, DOI had interpreted the MBTA as making any “incidental” take of a
migratory bird—that is, a take that results from a human activity when taking the bird is not the
purpose of the activity—a misdemeanor. See 18-CV-8084 Dkt. 6 app. A (Tompkins Op.) at 1-2,
12-15. Indeed, in early January 2017, DOI’s Solicitor—the Department’s chief lawyer and the
DOI official charged with, among other things, issuing opinions setting forth DOI’s
interpretation of federal statutes—issued a memorandum that reaffirmed DOI’s “long-standing
interpretation that the MBTA prohibits incidental take.” Id. at 2. That memorandum, officially
known as M-37041, will be referred to in this opinion as the “Tompkins Opinion,” named for the
DOI Solicitor by whom it was issued.
In December 2017, following a change in administrations and Solicitor Tompkins’s
departure, DOI’s Principal Deputy Solicitor, Daniel Jorjani—exercising the authority of the DOI
Solicitor in the absence of a confirmed appointee to that office 3—issued a new memorandum
permanently withdrawing and replacing the Tompkins Opinion. See Dkt. 28 ex. A (Jorjani Op.)
at 1. 4 This new memorandum, officially known as M-37050, will be referred to in this opinion
as the “Jorjani Opinion.”
The Jorjani Opinion reverses the Tompkins Opinion. It concludes that, “consistent with
the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting,
taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have
3
Mr. Jorjani has since been nominated to be DOI Solicitor but has not been confirmed. See PN552—Daniel
Habib Jorjani—Department of the Interior, Congress.gov, https://www.congress.gov/nomination/116thcongress/552?q=%7B%22search%22%3A%5B%22jorjani%22%5D%7D&s=1&r=1 (last visited July 28, 2019).
4
Because Defendants have filed the Jorjani Opinion in identical format in all three cases, the Court cites to it
according to its docket entry in 18-CV-4596 only.
Page 4 of 36
as their purpose the taking or killing of migratory birds, their nests, or their eggs.” Dkt. 28 ex. A
(Jorjani Op.) at 2. Acknowledging that “this interpretation is contrary” to DOI’s “prior practice,”
the Opinion states that “[i]nterpreting the MBTA to apply to incidental or accidental actions
hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening
up to six months in jail and a $15,000 penalty for each and every bird injured or killed.” Id. at 12 & n.4.
In April 11, 2018, the Principal Deputy Director of FWS—an agency within DOI—
issued a memorandum and a “frequently asked questions” document to “provide[] guidance to
clarify what constitutes prohibited take” under the MBTA in light of the Jorjani Opinion. See
18-CV-8084 Dkt. 6 app. B (FWS Guidance) at 1. That memorandum notes that FWS “is
modifying some policies and practices within its programs” to “[e]nsure consistency with the
recently issued” Jorjani Opinion and directs FWS personnel to “ensure that [the agency’s]
comments, recommendations, or requirements are not based on, nor imply, authority under the
MBTA to regulate incidental take of migratory birds.” Id. at 1-2. It also provides that FWS
“will not withhold a permit, request, or require mitigation based upon incidental take concerns
under the MBTA.” 5 Id. at 2.
In May 2018, the NRDC and Audubon Plaintiffs filed lawsuits challenging the Jorjani
Opinion; in September 2018, the States filed a similar lawsuit. See 18-CV-4596 Dkt. 1 (NRDC
Compl.); 18-CV-4601 Dkt. 1 (Audubon Compl.); 18-CV-8084 Dkt. 6 (States Compl.). All of the
actions assert that the Jorjani Opinion’s interpretation of the MBTA is “arbitrary, capricious, an
5
In disposing of these motions, the Court considers the Tompkins Opinion and the FWS memorandum
because they are appended to the States’ Complaint. See, e.g., Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d
Cir. 1991) (permitting a court to consider “documents attached to the complaint as exhibits or incorporated in the
complaint by reference” in “resolving a motion to dismiss”). The Court also considers the Jorjani Opinion because
it is “integral” to all three Complaints. See, e.g., Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“A complaint is
deemed to include . . . documents that, although not incorporated by reference, are integral to the complaint . . . .”
(internal quotation marks omitted)).
Page 5 of 36
abuse of discretion, or otherwise not in accordance with law” in violation of the APA, 5 U.S.C.
§ 706(2)(A). See 18-CV-4596 Dkt. 1 (NRDC Compl.) ¶¶ 76-81; 18-CV-4601 Dkt. 1 (Audubon
Compl.) ¶¶ 72-79; 18-CV-8084 Dkt. 6 (States Compl.) ¶¶ 42-46. The Audubon Complaint also
contends that the Opinion was issued without notice and opportunity for comment in violation of
5 U.S.C. § 553 and without compliance with the National Environmental Policy Act (“NEPA”),
42 U.S.C. § 4332(C). See 18-CV-4601 Dkt. 1 (Audubon Compl.) ¶¶ 80-87. All three actions
principally seek vacatur of the Opinion; the Audubon Complaint also requests that the Court
“[r]einstate Defendants’ prior interpretation and policy regarding MBTA coverage and
implementation.” See 18-CV-4596 Dkt. 1 (NRDC Compl.) at 25; 18-CV-4601 Dkt. 1 (Audubon
Compl.) at 34; 18-CV-8084 Dkt. 6 (States Compl.) at 22.
On November 20, 2018, in an omnibus brief, Defendants moved to dismiss all three
actions under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See 18-CV-4596 Dkts. 26-28; 18-CV-4601
Dkts. 29-31; 18-CV-8084 Dkts. 44-46. 6 On July 8, 2019, the Court directed the parties to show
cause why these three cases should not be consolidated pursuant to Fed. R. Civ. P. 42(a)(2). See
18-CV-4596 Dkt. 51; 18-CV-4601 Dkt. 44; 18-CV-8084 Dkt. 64. The parties consented to
consolidation, subject only to (a) the Audubon Plaintiffs’ “understanding that it would not
prejudice their ability to litigate the NEPA and notice and comment claims asserted in their
complaint but not in the NRDC Action or the States’ Action,” and (b) Plaintiffs’ request “that
they be permitted to continue to file separate briefs if there is further motion practice in the
consolidated proceeding.” 18-CV-4596 Dkt. 52; 18-CV-4601 Dkt. 46; 18-CV-8084 Dkt. 65.
6
Because Defendants’ memorandum and reply in support of their motions to dismiss are identical across all
three cases, further citations to those documents in this order will reference their respective docket entries in 18-CV4596.
Page 6 of 36
DISCUSSION
I.
Consolidation
Because these cases involve common questions of law and fact, and because the parties
do not oppose consolidation, the Court consolidates the actions pursuant to Rule 42(a)(2). This
consolidation is without prejudice to the Audubon Plaintiffs’ ability to press their separate NEPA
claim. 7 The Court denies without prejudice Plaintiffs’ request that they be allowed to submit
separate briefs in connection with further motion practice in the consolidated case. Whether
separate briefs will be appropriate will depend on the type of briefing at issue, the degree to
which Plaintiffs’ positions vary, and the extent to which Plaintiffs’ concerns regarding
consolidated briefing can be alleviated through other accommodations—for instance, by
allowing Plaintiffs to file a longer, consolidated brief.
II.
Article III Standing
Article III of the Constitution limits the jurisdiction of the federal courts to “Cases” and
“Controversies.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019). “For a legal
dispute to qualify as a genuine case or controversy, at least one plaintiff must have standing to
sue.” Id. In considering a facial motion to dismiss for lack of standing under Rule 12(b)(1), the
Court must “determine whether the [complaint] alleges facts that affirmatively and plausibly
suggest that the plaintiff has standing to sue.” Carter v. HealthPort Techs., LLC, 822 F.3d 47,
56-57 (2d Cir. 2016) (citations and alterations omitted). The Court must “accept . . . as true all
material factual allegations of the complaint . . . and draw . . . all reasonable inferences in favor
of the plaintiff.” Id. at 57 (citations and alterations omitted). The party invoking federal
jurisdiction—here, Plaintiffs—must plausibly plead (1) an “injury in fact”—that is, “an invasion
7
As this opinion will explain, see infra Pt. V, the Audubon Plaintiffs’ notice-and-comment claim is
dismissed with prejudice.
Page 7 of 36
of a legally protected interest [that] is (a) concrete and particularized . . . and (b) actual or
imminent, not conjectural or hypothetical”; (2) “a causal connection between the injury and the
conduct complained of”—that is, the injury must be “fairly . . . traceable to the challenged action
of the defendant, and not . . . the result of the independent action of some third party not before
the court”; and (3) that it is “likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)
(citations, internal quotation marks, and alterations omitted). “An allegation of future injury may
suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm
will occur.” 8 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation
marks omitted).
Contrary to Defendants’ argument, at least one Plaintiff in this now-consolidated action
has plausibly alleged Article III standing for each claim asserted and form of relief requested,
thereby supplying the Court with jurisdiction over this case (at least insofar as the Constitution is
concerned). See, e.g., Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650-51 (2017)
(“[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of
relief that is sought. . . . The same principle applies when there are multiple plaintiffs. At least
one plaintiff must have standing to seek each form of relief requested in the complaint.”
(citations and internal quotation marks omitted)); Centro de la Comunidad Hispana de Locust
Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (“It is well settled that where, as
8
Because Defendants’ standing challenge is a “facial” one—that is, “based solely on the allegations of the
complaint[s] or the complaint[s] and exhibits attached to [them]”—Plaintiffs bear “no evidentiary burden” at this
stage. Carter, 822 F.3d at 56 (citations and alterations omitted). Plaintiffs will, of course, bear an evidentiary
burden with respect to standing at later phases of this litigation. See Lujan, 504 U.S. at 561 (“In response to a
summary judgment motion . . . the plaintiff can no longer rest on . . . mere allegations, but must set forth by affidavit
or other evidence specific facts . . . which for purposes of the summary judgment motion will be taken to be true.
And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial.”
(citations and internal quotation marks omitted)).
Page 8 of 36
here, multiple parties seek the same relief, the presence of one party with standing is sufficient to
satisfy Article III’s case-or-controversy requirement.” (internal quotation marks omitted)). All
Plaintiffs seek vacatur of the Jorjani Opinion under Section 706(2)(A) on the ground that the
Opinion is contrary to the text of the MBTA. The Audubon Plaintiffs additionally seek vacatur
under Section 706(2)(A) and (D) on the ground that the Opinion was issued without notice and
comment under 5 U.S.C. § 553 and in violation of NEPA. The Court therefore addresses
Plaintiffs’ standing in two parts, first addressing whether any Plaintiff has standing to seek
vacatur under Section 706(2)(A) and then addressing whether any of the Audubon Plaintiffs has
standing to seek vacatur for failure to comply with Section 553 and NEPA.
A. Plaintiffs’ Standing to Seek Vacatur of the Jorjani Opinion Under Section 706(2)(A)
Taking all of the States’ allegations as true and drawing all inferences in their favor,
Carter, 822 F.3d at 56-57, the Court is satisfied that at least one of the States has adequately
alleged Article III standing to seek vacatur of the Jorjani Opinion under Section 706(2)(A).
Although the States advance several theories of injury, see 18-CV-8084 Dkt. 54 (States’
Mem. in Opp. to MTD) at 5-10, the most obvious of them suffices for present purposes: the
Jorjani Opinion creates substantial risk that migratory birds owned by the States will be killed by
private actors. Under New York State law, for example, the State “owns all . . . game [and]
wildlife . . . in the state” not held by private interests. N.Y. Envtl. Conserv. Law § 11-0105.
According to the States’ Complaint, this includes “well over 300 species of migratory birds
protected under the [MBTA] that nest in or regularly migrate through New York.” 18-CV-8084
Dkt. 6 (States’ Compl.) ¶ 13. As the States allege in detail, see id. ¶¶ 30-37, by barring FWS
from criminally prosecuting private industrial behavior that incidentally kills birds owned by the
State of New York, the Jorjani Opinion has eliminated the primary incentive private actors had to
Page 9 of 36
take precautionary measures to minimize or prevent bird deaths or to avoid altogether certain
industrial activities that create a risk of such deaths. The Opinion therefore creates a “substantial
risk,” Driehaus, 573 U.S. at 158, that private actors will incidentally kill at least one migratory
bird—and probably many more—owned by the State of New York. This “substantial risk
that . . . harm will occur” to the State’s property constitutes injury in fact. Driehaus, 573 U.S. at
158; see also, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 60102 (1982) (“[L]ike other associations and private parties, a State is bound to have a variety of
proprietary interests. A State may, for example, own land or participate in a business venture.
As a proprietor, it is likely to have the same interests as other similarly situated proprietors. And
like other such proprietors it may at times need to pursue those interests in court.”).
Defendants’ response—that Plaintiffs’ theory of injury “depends on [speculative]
assumptions about how potential violators of the MBTA will alter their behavior in response to
the [O]pinion, and further assumptions about how that change in behavior will affect migratory
birds,” Dkt. 27 (Mem. in Supp. of MTD) at 17; see also id. at 19-20 (reasserting same argument
against the States)—runs counter to the Opinion they are defending. In his Opinion, Principal
Deputy Solicitor Jorjani asserted that changing DOI’s interpretation of the MBTA to permit
incidental take was justified in part because the Department’s longstanding contrary
interpretation, and its accompanying threat of prison time and a $15,000-per-bird fine, “h[ung]
the sword of Damocles” over private actors, creating a “threat of prosecution” that inhibited “a
host of otherwise lawful and productive actions.” Dkt. 28 ex. A (Jorjani Op.) at 1-2. Now that
the shoe is on the other foot, Defendants cannot credibly dismiss as speculative the logic
underlying the States’ theory of injury: potential MBTA liability for incidental takes has
historically caused companies to take reasonable measures to avoid such takes; the Jorjani
Page 10 of 36
Opinion, by eliminating that threat of criminal liability, has eliminated companies’ incentives to
take such measures; therefore, the Jorjani Opinion creates a substantial risk that there will be an
increase in the number of incidental bird deaths. 18-CV-8084 Dkt. 6 (States’ Compl.) ¶¶ 34-37.
Indeed, common sense supports the States’ logic: the lower the potential cost of incidentally
killing a migratory bird, the more likely private actors are to weigh the pros and cons of activities
in which they wish to engage that incidentally kill migratory birds in favor of engaging in those
activities. It follows that eliminating the threat of federal criminal prosecution under the MBTA
substantially increases the risk that migratory birds owned by the Plaintiff States will be killed.
That substantial risk of injury to a State’s proprietary interest constitutes injury in fact. See, e.g.,
Nat. Res. Def. Council v. EPA, 755 F.3d 1010, 1017 (D.C. Cir. 2014) (“It is well-established that
standing will lie where a plaintiff demonstrates that the challenged agency action authorizes the
conduct that allegedly caused the plaintiff’s injuries, if that conduct would allegedly be illegal
otherwise. . . . This is precisely the case here. Once [the defendant agency] promulgated the
[action at issue], it was a hardly-speculative exercise in naked capitalism to predict that facilities
would take advantage of it to burn hazardous-waste-derived fuels rather than more expensive
fossil fuels.” (internal quotation marks, alterations, and citations omitted)).
This reasoning disposes of Defendants’ arguments on causation and redressability as
well. As an initial matter, Defendants misstate the causation inquiry when they assert that
“Plaintiffs cannot satisfy the traceability requirement” because “the potential injuries alleged in
the complaints would only result from the conduct of parties potentially subject to regulation
under the MBTA.” Dkt. 27 (Mem. in Supp. of MTD) at 21. “This wrongly equates injury ‘fairly
traceable’ to the defendant with injury as to which the defendant’s actions are the very last step
in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 168-69 (1997). The fact that a
Page 11 of 36
plaintiff’s causation theory rests ultimately on the choices of third parties does not by itself
preclude standing. Because Article III requires only de facto causality, at the pleading stage,
Plaintiffs’ burden is to allege facts “showing that third parties will likely react in predictable
ways” to the Jorjani Opinion and that their predictable reaction will cause the injuries about
which Plaintiffs complain. Commerce, 139 S. Ct. at 2566 (citing Block v. Meese, 793 F.2d 1303,
1309 (D.C. Cir. 1986) (Scalia, J.)); see also Lujan, 504 U.S. at 562.
The States have carried that burden. Taking the States’ allegations as true, there is a
“substantial likelihood” that by eliminating the threat of federal criminal prosecution under the
MBTA, the Jorjani Opinion has substantially reduced the potential cost of activities that
incidentally kill migratory birds, making it more likely that third parties will undertake such
activities and kill at least one migratory bird owned by one of the Plaintiff States. Nat. Res. Def.
Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 104 (2d Cir. 2018). Further, it is
plausible that vacating the Jorjani Opinion because it contravenes the text of the MBTA, as
Plaintiffs request, would reduce that risk. See id. at 104-05 (“The notion that financial incentives
deter environmental misconduct is hardly novel.” (brackets omitted) (quoting In re Idaho
Conservation League, 811 F.3d 502, 510 (D.C. Cir. 2016)). That is all that the redressability
inquiry requires. See, e.g., Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir. 2016) (“A
plaintiff satisfies the redressability requirement when he shows that a favorable decision will
relieve a discrete injury to himself. He need not show that a favorable decision will relieve his
every injury.” (citation omitted)); see also Massachusetts v. EPA, 549 U.S. 497, 526 (2007)
(finding redressability where “risk of catastrophic harm” due to climate change “would be
reduced to some extent if petitioners received the relief they seek” (emphasis added)). Because
the States’ theories of causation and redressability rest “on the predictable effect of Government
Page 12 of 36
action on the decisions of third parties,” Commerce, 139 S. Ct. at 2566, the Court is satisfied that
the States have adequately pleaded Article III standing to seek vacatur of the Jorjani Opinion
under Section 706(2)(A). 9
Stomping their feet and growling “you can’t make me,” Defendants next contend that
vacatur of the Jorjani Opinion would not actually redress Plaintiffs’ alleged injuries because,
even if the Opinion is vacated, Defendants’ enforcement priorities and decisions with respect to
incidental take would not return to the “pre-Opinion . . . status quo.” Dkt. 27 (Mem. in Supp. of
MTD) at 23-24. This argument is a red herring. Article III’s redressability element does not,
first of all, require that the judicial relief a plaintiff requests achieve the pre-decision status quo.
The prevention of even one injury fairly traceable to an agency’s challenged conduct—here, the
incidental take of one migratory bird owned by one of the Plaintiff States—suffices. See, e.g.,
Donziger, 833 F.3d at 121 (“A plaintiff satisfies the redressability requirement when he shows
that a favorable decision will relieve a discrete injury to himself. He need not show that a
favorable decision will relieve his every injury.” (citation omitted)). Moreover, the Supreme
Court long ago rejected the notion that an agency’s allegedly unlawful decision to suspend a rule
9
Further confirming the Court’s conclusion, Principal Deputy Solicitor Jorjani jettisoned DOI’s prior
interpretation of the MBTA precisely because the specter of prosecution inhibited industry activities that
incidentally kill migratory birds. See Dkt. 28 ex. A (Jorjani Op.) at 1-2. Unless it is now Defendants’ position that
Jorjani’s stated reason for altering DOI’s interpretation of the MBTA was specious, it is hardly speculative that a
court order repudiating that interpretation and vacating the Jorjani Opinion would restore the “sword of Damocles”
that, in Principal Deputy Solicitor Jorjani’s own view, historically inhibited “a host” of private activities that
incidentally kill migratory birds, id.
The well-understood deterrent value of criminal environmental regulations sets this case apart from Burton
v. Central Interstate Low-Level Radioactive Waste Compact Commission, 23 F.3d 208, 210 (8th Cir. 1994), Town of
Babylon v. Federal Housing Finance Agency, 699 F.3d 221, 229-30 (2d Cir. 2012), and Simon v. Eastern Kentucky
Welfare Rights Organization, 426 U.S. 26, 42-44 (1976). See Dkt. 27 (Mem. in Opp. to MTD) at 24, 26-27 (citing
these cases). In those cases, the third-party conduct that was the immediate cause of the plaintiffs’ injury would
have been lawful even in the absence of the government regulation being challenged. Not so here. See, e.g.,
Bennett, 520 U.S. at 169 (“While . . . it does not suffice if the injury complained of is the result of the independent
action of some third party not before the court, . . . that does not exclude injury produced by determinative or
coercive effect upon the action of someone else.” (internal quotation marks, alterations, and citations omitted)).
Page 13 of 36
is not redressable for Article III purposes merely because the agency would have discretion to
abstain from enforcing the rule even if its decision suspending the rule was vacated. In Federal
Election Commission v. Akins, 524 U.S. 11, 25 (1998), the Supreme Court held that a decision by
the Federal Election Commission that a particular political organization was exempt from federal
reporting requirements was redressable even though, were the Commission’s decision vacated
and the case remanded, the Commission could nonetheless decide “in the exercise of its
discretion not to require [the committee] to produce the information.” As the Court explained,
“[a]gencies often have discretion about whether or not to take a particular action,” “[y]et those
adversely affected by a discretionary agency decision generally have standing to complain that
the agency based its decision upon an improper legal ground.” Id. Other courts have read Akins
to reject the argument that “the redressability element of constitutional standing requires a
plaintiff to establish that the defendant agency will actually enforce any new binding regulations
against [a] regulated third party.” Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 44344 (D.C. Cir. 1998) (en banc); see also, e.g., Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ.,
366 F.3d 930, 940-41 (D.C. Cir. 2004) (“[A] federal court may find that a party has standing to
challenge government action that permits or authorizes third-party conduct that would otherwise
be illegal in the absence of the Government’s action.”), abrogated in part on other grounds as
recognized in Perry Capital LLC v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir. 2017); Marouf v.
Azar, No. 18-CV-378, 2019 WL 2452315, at *8 (D.D.C. June 12, 2019) (same); Kwong v.
Bloomberg, 876 F. Supp. 2d 246, 251-53 (S.D.N.Y. 2012) (same).
That reasoning applies here. There is no dispute that before the Jorjani Opinion, the
official position of DOI and FWS was that incidental takes of migratory birds were illegal and
subject to criminal prosecution pursuant to the MBTA. 18-CV-8084 Dkt. 6 app. A (Tompkins
Page 14 of 36
Op.) at 2; see also Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri, 802 F.3d 267,
277 n.8 (2d Cir. 2015) (“The Solicitor’s M-Opinions are binding on the DOI as a whole. After
an M-Opinion is completed, the DOI will take action consistent with the legal interpretation
explained by the Solicitor.” (citation and alterations omitted)). Nor is there any dispute that the
Jorjani Opinion “permanently with[drew]” the Tompkins Opinion “and replace[d]” it with the
official position that the MBTA prohibits only purposeful takes. Dkt. 27 (Mem. in Supp. of
MTD) at 7; see also Dkt. 28 ex. A (Jorjani Op.) at 1 (“[T]his memorandum permanently
withdraws and replaces Opinion M-37041.”). An order vacating the Jorjani Opinion would,
therefore, (1) reinstate the Tompkins Opinion’s conclusion that incidental takes are unlawful as
DOI and FWS’s official interpretation of the MBTA; and (2) thereby restore the metaphorical
sword of Damocles over the heads of private industry. 10 Plaintiffs are not required to establish
that DOI or FWS “will actually enforce” the MBTA against third parties, Glickman, 154 F.3d at
443-44, or disprove the possibility that private actors might continue “their injurious conduct in
violation of the law” after vacatur, Nat’l Wrestling Coaches Ass’n, 366 F.3d at 941. Akins and
its progeny make clear that Article III’s redressability requirement is satisfied because, were the
10
For these reasons, the Court rejects Defendants’ contention that the Tompkins Opinion “would still be
suspended and withdrawn following the resolution of these matters.” Dkt. 27 (Mem. in Supp. of MTD) at 23 n.10.
The permanent withdrawal of the Tompkins Opinion was accomplished by, and was part and parcel of, the Jorjani
Opinion. See Dkt. 28 ex. A (Jorjani Op.) at 1 (“[T]his memorandum permanently withdraws and replaces Opinion
M-37041.”). Vacating the Jorjani Opinion would therefore nullify the withdrawal of the Tompkins Opinion—or, to
avoid the double negative, reinstate it.
On the topic of remedies, the Court notes that it need not concern itself at this stage with Defendants’
contention that “the only appropriate remedy” if Plaintiffs succeed on their APA claims “would be a remand to DOI
to consider any issues the Court deem[s] necessary, without vacatur.” Dkt. 27 (Mem. in Supp. of MTD) at 22 n.9.
As Defendants recognize, “detailed consideration of potential remedies is unnecessary in [resolving] this motion,”
id., and in conducting the Article III standing inquiry, the Court must assume that Plaintiffs will succeed on the
merits of their claims—including their request for vacatur of the Jorjani Opinion, see, e.g., Scenic Am., Inc. v. U.S.
Dep’t of Transp., 836 F.3d 42, 55 (D.C. Cir. 2016). This is without prejudice, of course, to Defendants’ litigating
the appropriate remedy should Plaintiffs prevail on the merits.
Page 15 of 36
Jorjani Opinion vacated, Defendants would once again be empowered to prosecute incidental
takes under the MBTA. 11
The Court is also unpersuaded by Defendants’ argument that, given their “clear
expression of their interpretation of the [MBTA] and their intent to pursue rulemaking to codify
that interpretation,” private behavior vis-à-vis incidental takes will not change even if the Jorjani
Opinion is vacated and the “sword of Damocles” restored. Dkt. 27 (Mem. in Supp. of MTD) at
26-27; see also Dkt. 50 (Reply in Supp. of MTD) at 8-9. As far as this Court is aware,
Defendants’ “intent to pursue rulemaking to codify” the Jorjani Opinion remains inchoate. And
the Court cannot at this juncture accept as gospel Defendants’ theory that a nod is as good as a
wink as far as private interests potentially subject to criminal prosecution and fines under the
MBTA are concerned. After all, as Principal Deputy Solicitor Jorjani himself colorfully
explained, “the value of a sword of Damocles is that it hangs—not that it drops.” Dkt. 28 ex. A
(Jorjani Op.) at 1 (quoting Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J.,
dissenting)). 12
11
Defendants misread National Wrestling when they suggest that it requires Plaintiffs to “offer ‘formidable
evidence,’ such that there is ‘little doubt as to causation and the likelihood of redress.’” Dkt. 27 (Mem. in Supp. of
MTD) at 25-26 (quoting Nat’l Wrestling Coaches Ass’n, 366 F.3d at 941-42). National Wrestling described two
theories of redressability involving the conduct of third parties. Under the first theory, a “party has standing to
challenge government action that permits or authorizes third-party conduct that would otherwise be illegal in the
absence of the Government’s action.” 366 F.3d at 941. Under the second theory, a plaintiff has “standing to
challenge government action on the basis of injuries caused by regulated third parties where the record present[s]
substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving
little doubt as to causation and the likelihood of redress.” Id. National Wrestling applied its formidable-evidenceleaving-little-doubt standard to cases resting on the second theory. Id. at 940-42. Because the States’ standing in
this case rests on the first theory, that standard is inapplicable here (even assuming the standard is not entirely
irrelevant because it is inconsistent with the Second Circuit’s admonition that Plaintiffs bear “no evidentiary burden”
at the Rule 12(b)(1) stage, Carter, 822 F.3d at 56).
12
In the absence of the Jorjani Opinion, only a gutsy (bordering on reckless) attorney would advise his or her
client to proceed with an industrial project that poses a non-negligible risk of incidental take, particularly one that is
expensive or requires substantial lead time to execute. As this litigation demonstrates, agency attitudes towards the
enforcement of certain federal statutes can shift as dramatically and quickly as the political winds; industrial
decision-making is rarely so agile.
Page 16 of 36
For all of these reasons, the Court concludes that the States have adequately alleged
Article III standing to seek vacatur of the Jorjani Opinion under Section 706(2)(A).
B. Standing to Seek Vacatur of the Jorjani Opinion for Failure to Comply With Section 553
and NEPA
At the very least, the National Audubon Society has adequately alleged associational
standing, also known as representational standing, to press the claims that the Jorjani Opinion
was issued without notice and comment in violation of Section 553 and NEPA. An organization
“has standing to bring suit on behalf of its members when its members would otherwise have
standing to sue in their own right, the interests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Nat. Res. Def. Council, 894 F.3d at 104 (citation omitted).
Taking the Audubon Plaintiffs’ allegations as true, the Court is satisfied that the National
Audubon Society’s members would have standing to challenge the Jorjani Opinion in their own
right. The Society has over 1.2 million members nationwide, with 64,719 members in New York
alone. 18-CV-4601 Dkt. 1 (Audubon Compl.) ¶ 15. Many of those members “regularly observe,
study, photograph, and otherwise enjoy migratory birds in the wild.” Id. ¶ 20. As discussed at
length above, see supra Pt. II.A., it is plausible that eliminating the threat of federal criminal
prosecution for incidental takes has increased the risk that the migratory birds the National
Audubon Society’s members enjoy will be killed incident to private industrial activities. Those
takes infringe upon those members’ “desire to . . . observe an animal species, even for purely
esthetic purposes,” a desire which is “undeniably a cognizable interest for purpose of standing.”
Lujan, 504 U.S. at 562-63.
Defendants argue, not entirely without basis, that the organizational Plaintiffs have failed
to allege injury in fact because they “do not even attempt to specify where these harms are likely
Page 17 of 36
to occur or how those particular harms will affect their members’ [esthetic] interests.” Dkt. 27
(Mem. in Supp. of MTD) at 18. The Audubon Complaint’s most specific allegations on this
point—that some of the Audubon Plaintiffs’ members “reside and/or recreate in specific
locations” where “FWS field offices, relying on [the Jorjani Opinion], have told one or more
companies constructing natural gas pipelines that they may cut down trees with nesting birds
during the breeding season,” 18-CV-4601 Dkt. 1 ¶ 22—are admittedly rather general. But the
enormity and distribution of the National Audubon Society’s membership, along with the
national scope of the Jorjani Opinion, make it “easy” in this case “to presume specific facts
under which [the Society’s members] will be injured,” Bennett, 520 U.S. at 168. At later stages
of this litigation it will be necessary for the Society and its fellow organizational Plaintiffs to
adduce specific evidence that migratory birds are being or will be harmed as a result of the
Jorjani Opinion and that those harms will directly affect one or more of their members, separate
and apart from their special interest in the subject. See Lujan, 504 U.S. at 563. But at this stage,
the Court is satisfied that the Society’s “general factual allegations of injury resulting from
[Defendants’] conduct . . . suffice” to plead injury in fact. Id. at 561 (“[O]n a motion to dismiss
we presume that general allegations embrace those specific facts that are necessary to support the
claim.” (alteration and internal quotation marks omitted); see also, e.g., Fin. Guar. Ins. Co. v.
Putnam Advisory Co., 783 F.3d 395, 401-02 (2d Cir. 2015) (articulating same principle). 13
13
Although wary at this stage of engaging with materials not obviously incorporated into or integral to the
Complaints, the Court notes that one document Defendants attached to their opening brief, a March 2018 letter from
FWS to an engineering firm, seems to confirm Plaintiffs’ position that the Jorjani Opinion has already incentivized,
and will continue to incentivize, private actors to engage in industrial activities that kill migratory birds in which
they would not have engaged absent the Opinion. The letter appears to (a) give FWS’s blessing to the private treeclearing project referenced in Paragraph 22 of the Audubon Plaintiffs’ Complaint and (b) express FWS’s view that,
in light of the scope and nature of the project, “there may be impacts to some birds even if all reasonable measures
are taken to avoid such impacts.” 18-CV-4596 Dkt. 28 ex. C (Anderson Letter) at 2. If that interpretation of the
letter is accurate, then it only bolsters Plaintiffs’ theory that, with the threat of prosecution under the MBTA gone,
private industry is, in fact, engaging in conduct that endangers migratory birds. It also dramatically undercuts
Defendants’ suggestion that because “bird conservation measures still can be incorporated into industry projects,”
Page 18 of 36
For substantially the same reasons discussed above, see supra Pt. II.A, it is plausible that
the threatened injuries to the National Audubon Society’s members’ esthetic interests are fairly
traceable to the Jorjani Opinion and are redressable by a court order vacating the Opinion for
failure to comply with Section 553, NEPA, or both. “When a litigant is vested with a procedural
right, that litigant has standing if there is some possibility that the requested relief will prompt
the injury-causing party to reconsider the decision that allegedly harmed the litigant.”
Massachusetts, 549 U.S. at 518. The litigant “never has to prove that if he had received the
procedure”—here, notice-and-comment rulemaking or compliance with NEPA—“the substantive
result would have been altered.” Id. (quoting Sugar Cane Growers Coop. of Fla. v. Veneman,
289 F.3d 89, 94-95 (D.C. Cir. 2002)). “All that is necessary is to show that the procedural step
was connected to the substantive result.” Id. There is no real dispute that the two procedural
defects about which the Society complains are connected to the Jorjani Opinion or that vacatur
and remand to cure one or both of those alleged defects will require Defendants to reconsider the
Opinion—even if, in the end, they come to the same conclusion.
Moreover, to the extent the Audubon Plaintiffs “must satisfy the normal standard for
redressability” because the “redressability obstacle” they face is “uncertainty over what” a third
party will do, St. John’s United Church of Christ v. FAA, 520 F.3d 460, 463 (D.C. Cir. 2008), the
National Audubon Society has alleged sufficient facts to satisfy that standard. To borrow from
St. John’s United’s phrasing (which in turn borrowed from Lujan), for the same reasons that the
States have shown that their allegedly threatened injuries are redressable by an order vacating the
Jorjani Opinion, see supra Pt. II.A, the National Audubon Society has plausibly pleaded that the
the Jorjani Opinion has not made incidental bird takes substantially more likely. Dkt. 27 (Mem. in Supp. of MTD)
at 17-18. To be clear, however, the Court’s resolution of these motions does not rest on the March 2018 FWS letter.
See Carter, 822 F.3d at 56.
Page 19 of 36
industrial activities that incidentally kill migratory birds and affect its member’s esthetic interests
“will be altered or affected by the agency activity”—the Tompkins Opinion—that “they seek to
[reinstate].” St. John’s United, 520 F.3d at 463 (quoting Lujan, 504 U.S. at 570)).
Finally, regarding the second and third elements of associational standing, there can be
no serious dispute that the esthetic interests of the National Audubon Society’s members in
migratory birds are “germane to the organization’s purpose.” Nat. Res. Def. Council, 894 F.3d at
104 (citation omitted). The Society exists to protect birds for ecological, academic, and esthetic
purposes. 18-CV-4601 Dkt. 1 (Audubon Compl.) ¶¶ 15, 20. And neither the claims the Society
asserts nor the relief it requests requires the participation of its individual members in this
lawsuit. See Nat. Res. Def. Council, 894 F.3d at 104.
For these reasons, the Court concludes that, at the very least, the National Audubon
Society has adequately alleged Article III standing to seek vacatur of the Jorjani Opinion because
it was issued without notice and comment in violation of Section 553 and NEPA. And because
at least one Plaintiff in this consolidated action has “demonstrate[d] standing for each
claim . . . and for each form of relief that is sought,” the Court has subject-matter jurisdiction
over the whole case insofar as Article III is concerned. 14 Town of Chester, 137 S. Ct. at 1650-51
(internal quotation marks omitted).
III.
“Final Agency Action”
Defendants contend that, even if some Plaintiffs have Article III standing, the Court
nonetheless lacks jurisdiction because the Jorjani Opinion is not a “final agency action” under 5
14
Because the Court holds that the States have plausibly pleaded Article III standing to seek vacatur of the
Jorjani Opinion under Section 706(2)(A) and that the National Audubon Society has plausibly pleaded Article III
standing to seek vacatur of the Opinion for failure to comply with Section 553 and NEPA, the Court need not and
does not address Plaintiffs’ other asserted theories of standing or Defendants’ critiques of those theories. Those
other theories may, however, become relevant at later stages depending on how the factual record develops.
Page 20 of 36
U.S.C. § 704. See Dkt. 27 (Mem. in Supp. of MTD) at 27-34. The Court disagrees. The APA
permits judicial review of “[a]gency action made reviewable by statute” and “final agency action
for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. No one contends that
any statute renders the Jorjani Opinion reviewable even if it is not final, so this Court has
jurisdiction to review the Opinion only if it is a “final agency action.”
Although many different formulations have been used to describe when an agency action
is final within the meaning of Section 704, DRG Funding Corp. v. Sec’y of Hous. & Urban Dev.,
76 F.3d 1212, 1214 (D.C. Cir. 1996) (collecting cases), the Supreme Court recently made clear
that the formulation it first articulated in Bennett v. Spear, 520 U.S. at 177-78, controls: “First,
the action must mark the consummation of the agency’s decisionmaking process—it must not be
of a merely tentative or interlocutory nature. And second, the action must be one by which rights
or obligations have been determined, or from which legal consequences will flow.” U.S. Army
Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (internal quotation marks and
footnote omitted). This inquiry is, fundamentally, a “pragmatic” one. Id. at 1815 (internal
quotation marks omitted).
As to the first prong, there is nothing tentative or interlocutory about the Jorjani Opinion.
To the contrary, by its terms, the Opinion’s withdrawal and replacement of the Tompkins
Opinion is “permanent.” Dkt. 28 ex. A (Jorjani Op.) at 1. It acknowledges no limitation on the
degree to which it now represents DOI’s (and, by extension, FWS’s) formal position vis-à-vis
incidental takes under the MBTA, see id., and Defendants concede that it is “binding on the DOI
as a whole,” including on FWS, Dkt. 27 (Mem. in Supp. of MTD) at 28-29 (internal quotation
marks omitted). Nor does it have the kind of qualification-laden, guideline-offering, advicegiving, recommendation-making, or discretion-preserving language that courts have held
Page 21 of 36
signifies a lack of finality. 15 To the contrary, the Opinion’s language is definitive: at both ends,
it unambiguously proclaims “that, consistent with the text, history, and purpose of the MBTA,
the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the
same apply only to affirmative actions that have as their purpose the taking or killing of
migratory birds, their nests, or their eggs.” Dkt. 28 ex. A (Jorjani Op.) at 2; see also id. at 41.
Further, Defendant FWS has treated the Opinion as DOI’s final word on the subject. To that
end, FWS has issued a guidance document that “modif[ies] some policies and practices within its
programs” to “ensure consistency with the recently issued M Opinion”—including by
prohibiting FWS personnel from making “comments, recommendations, or requirements” that
are “based on” or “imply” any “authority under the MBTA to regulate incidental take of
migratory birds.” 18-CV-8084 Dkt. 6 app. B (FWS Guidance) at 1-2; see also, e.g., Sw. Airlines
Co. v. U.S. Dep’t of Transp., 832 F.3d 270, 275 (D.C. Cir. 2016) (“In assessing whether a
particular agency action qualifies as final for purposes of judicial review, this court and the
Supreme Court have looked to the way in which the agency subsequently treats the challenged
action.”). Under these circumstances, the Court is satisfied that the Jorjani Opinion “mark[s] the
consummation of [DOI’s] decisionmaking process” insofar as MBTA-regulation of incidental
takes is concerned. 16 Bennett, 520 U.S. at 177-78 (internal quotation marks omitted).
15
See, e.g., Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 808-09 (D.C. Cir.
2006) (holding that NHTSA policy guidelines were not “final” agency action in part because their language was
general and conditional, making them “read as guidelines, not binding regulations”); Chem. Mfrs. Ass’n v. Env’t
Prot. Agency, 26 F. Supp. 2d 180, 183 (D.D.C. 1998) (holding that EPA policy establishing principles for settling
municipal waste-cleanup liability was not final agency action because it “assert[ed] that it [was] intended to guide
future settlements, not bind them”; “repeatedly invoke[d] situations in which the principles articulated in the policy
[would] not be applied to particular sites and parties”; and “grant[ed] EPA considerable discretion to deviate from
the policy[]”).
16
McMaster v. United States, 731 F.3d 881 (9th Cir. 2013), and Center for Biological Diversity v. Jewell, 248
F. Supp. 3d 946 (D. Ariz. 2017), do not, contrary to Defendants’ suggestion, hold or support the notion that MOpinions are categorically not “final agency actions” for Section 704 purposes. See Dkt. 27 (Mem. in Supp. of
MTD) at 29. McMaster held only that a particular M-Opinion interpreting the Wilderness Act was not entitled to
Chevron deference because it was not issued pursuant to statutes giving DOI authority to issue regulations regarding
Page 22 of 36
Defendants’ principal argument on the first prong is that the Jorjani Opinion is not the
consummation of any decision-making process “because, standing alone, it is not DOI’s final
determination on any matter.” Dkt. 27 (Mem. in Supp. of MTD) at 28-32. That kind of “final
determination,” Defendants say, “will occur only in any forthcoming individual decisions
regarding criminal enforcement of the MBTA or other agency actions premised on the
application of” the Opinion. Id. at 29-30. The Court disagrees. First, “[t]he APA does not
require that the challenged agency action be the agency’s final word on the matter for it to be
‘final’ for the purposes of judicial review.” Salazar v. King, 822 F.3d 61, 83-84 (2d Cir. 2016);
see also, e.g., CSI Aviation Servs., Inc. v. U.S. Dep’t of Transp., 637 F.3d 408, 413 (D.C. Cir.
2011) (rejecting as “mistaken” the argument “that final agency action in a case like this one
requires the completion of a full enforcement action”); Sharkey v. Quarantillo, 541 F.3d 75, 8889 (2d Cir. 2008) (“[I]f an agency has issued a definitive statement of its position, determining
the rights and obligations of the parties, the agency’s action is final notwithstanding the
possibility of further proceedings in the agency on related issues, so long as judicial review at the
time would not disrupt the administrative process.” (internal quotation marks and alterations
omitted) (quoting Bell v. New Jersey, 461 U.S. 773, 779-80 (1983))). Second, for all practical
purposes, the Jorjani Opinion will be DOI’s final word on the MBTA’s application to incidental
takes. Because the Opinion definitively concludes that the MBTA does not prohibit incidental
takes, and because that conclusion is binding on DOI and FWS, any “forthcoming individual
decisions regarding criminal enforcement of the MBTA” or “other agency actions premised on”
the Opinion, Dkt. 27 (Mem. in Supp. of MTD) at 29-30, are but a fait accompli: DOI and FWS
public lands. See McMaster, 731 F.3d at 891. And Jewell queried only whether an FWS policy interpreting the
Endangered Species Act was unreasonable at Chevron’s second step. See Jewell, 248 F. Supp. 3d at 958. Both
issues are far afield from the Section 704 finality inquiry.
Page 23 of 36
cannot make prosecutorial decisions or take other actions that are inconsistent with the Opinion’s
interpretation of the MBTA. 17 Because the Opinion definitively decides that the MBTA does not
prohibit incidental takes, Hawkes Co., 136 S. Ct. at 1814, it is the consummation of the agency’s
decision-making. 18
The Jorjani Opinion satisfies Bennett’s second prong as well. The Opinion “gives rise to
‘direct and appreciable legal consequences,’” Hawkes Co., 136 S. Ct. at 1814 (quoting Bennett,
520 U.S. at 178): it bars DOI and FWS personnel from instituting enforcement proceedings
under the MBTA for incidental takes, thereby effectively immunizing industry actors from
criminal liability for such takes. In this respect, the Jorjani Opinion is like the agency action the
D.C. Circuit confronted (and ultimately vacated) in Clean Air Council v. Pruitt, 862 F.3d 1 (D.C.
Cir. 2017) (per curiam). In that case, a group of environmental organizations challenged the
EPA’s decision to stay the implementation of certain provisions of a final rule regarding
greenhouse-gas emissions. See 862 F.3d at 4. Rejecting the agency’s argument that the stay was
not a final agency action, the court held that the stay “affect[ed] regulated parties’ rights or
obligations,” as Bennett’s second prong requires, because it indefinitely extended oil and gas
companies’ deadline to comply with the provisions, thereby “eliminat[ing]” the “threat” of “civil
penalties, citizens’ suits, fines, and imprisonment” for noncompliance with those provisions and
17
Theoretically, it is possible that the Secretary or Deputy Secretary of the Interior could overrule Principal
Deputy Solicitor Jorjani’s Opinion or ratify an agency action that is contrary to it. “That possibility, however, is a
common characteristic of agency action, and does not make an otherwise definitive decision nonfinal.” Hawkes Co.,
136 S. Ct. at 1814.
18
Any decision “not to prosecute or enforce” the MBTA vis-à-vis incidental takes, “whether through civil or
criminal process,” will likely be one “committed to [DOI or FWS’s] absolute discretion” and thus one for which
“judicial review is not available” under 5 U.S.C. § 701(a)(2). Heckler v. Chaney, 470 U.S. 821, 830 (1985). Indeed,
Defendants would probably argue just that were any non-prosecution decision challenged in court. That being the
case, one of the two primary vehicles that Defendants argue is available for challenging the Jorjani Opinion’s
interpretation of the MBTA—“challenges by particular defendants to the Government’s enforcement decisions,”
Dkt. 27 (Mem. in Supp. of MTD) at 30—is not a vehicle at all. (To be clear, the Court need not and does not decide
whether a non-prosecution decision based on the Jorjani Opinion is, in fact, the type of action that “is committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2).)
Page 24 of 36
“reliev[ing] regulated parties of liability they would otherwise face.” Id. at 7. The Jorjani
Opinion works essentially the same change. In its absence, industry actors would have been
subject to criminal prosecution for incidental takes. The Opinion “eliminates that threat . . . and
thus relieves regulated parties of liability they would otherwise face.” Id.
Clean Air Council also refutes Defendants’ arguments (1) that, for an agency action to be
final, it must “impose . . . new legal obligations” on or “have a direct and immediate effect on the
day-to-day business” of the plaintiffs challenging the action, Dkt. 27 (Mem. in Supp. of MTD) at
30, 32-34, and (2) that “the possibility that [an action] could alter the conduct of potentially
regulated parties, which in turn could potentially affect the interests of the Plaintiffs, is not
sufficient to satisfy the second prong of Bennett,” Dkt. 50 (Reply in Supp. of MTD) at 13-14.
The EPA’s stay in Clean Air Council satisfied Bennett’s second prong because it affected the
obligations of third-party oil and gas producers; neither the majority nor the dissent had any
concern that the stay did not directly affect any obligations of the plaintiffs or that the plaintiffs’
finality theory rested on the stay’s impact on third parties. See 862 F.3d at 4, 6; see also id. at 17
(Brown, J., dissenting). And in this regard, Clean Air Council is hardly unique. In Natural
Resources Defense Council v. Environmental Protection Agency, 643 F.3d 311, 320 (D.C. Cir.
2011), and Scenic America, Inc. v. U.S. Department of Transportation, 836 F.3d 42, 56 (D.C.
Cir. 2016), for example, the D.C. Circuit held that agency actions—in the first case, an EPA
guidance document regarding air-quality standards; in the second, a Federal Highway
Administration guidance memorandum regarding billboard lighting—were final even though the
actions affected the rights and obligations of agency personnel or regulated entities rather than
those of the plaintiff nonprofit organizations. In Natural Resources Defense Council, the EPA
guidance document satisfied Bennett’s second prong because it “b[ound] EPA regional directors”
Page 25 of 36
and authorized them to approve air-quality implementation plans that did not include collection
of certain penalties from polluters. See Nat’l Res. Def. Council, 643 F.3d at 313-17, 320. In
Scenic America, the FHWA guidance satisfied Bennett’s second prong because it set forth
criteria for the agency’s Division Offices to use in approving or rejecting state regulations of
billboard lighting, thereby “withdraw[ing] some of the discretion concerning billboard permitting
[that] the Division Offices and states previously held.” 836 F.3d at 45-47, 56. In neither case
was it material to the finality analysis that the challenged agency action did not directly affect the
legal obligations or day-to-day business of the plaintiffs. 19
Even setting Clean Air Council, Natural Resources Defense Council, and Scenic America
to one side, tying the finality inquiry to whether an agency action imposes new legal obligations
or has a direct, day-to-day effect on the plaintiff unmoors the finality inquiry from its functional
foundations. The finality requirement is designed to allow an agency the opportunity to correct
its own mistakes, to avoid judicial disruption of the agency’s processes, and to prevent piecemeal
judicial review which may become moot when the agency completes its procedures. See DRG
Funding Corp., 76 F.3d at 1214. Defendants’ approach would undermine these purposes by
19
Defendants misread DRG Funding Corp., 76 F.3d at 1214, and Fund for Animals, Inc. v. U.S. Bureau of
Land Management, 460 F.3d 13, 22 (D.C. Cir. 2006). In expressing an unwillingness “to review agency orders ‘that
do not themselves adversely affect complainant but only affect his rights adversely on the contingency of future
administrative action,’” Fund for Animals, Inc., 460 F.3d at 22 (alterations omitted) (quoting DRG Funding Corp.,
76 F.3d at 1214), the D.C. Circuit did not exclude the possibility that an agency action could satisfy Bennett’s
second prong because it affects the legal rights or obligations of an agency or of a third party rather than those of the
plaintiff. The plaintiff in DRG Funding Corp. appears to have rested its finality theory on effects of the agency’s
action on the plaintiff’s own rights and obligations; that being the case, the court had no occasion to opine on the
viability of a theory premised on the effects of an agency’s action on third parties’ rights and obligations. See 76
F.3d at 1215-16. And in Fund for Animals, the court specifically left open the possibility that an agency action
could satisfy the second finality element if it “command[s] anyone”—anyone, not just the plaintiff—“to do anything
or to refrain from doing anything” or “grant[s], withhold[s], or modif[ies] any formal legal license, power, or
authority.” 460 F.3d at 22 (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998)). That is, of
course, exactly what the challenged agency actions did in Clean Air Council, Natural Resources Defense Council,
and Scenic America, and what the Jorjani Opinion does here.
Page 26 of 36
focusing the finality inquiry on the particular circumstances of the plaintiff who happens to
challenge an agency action rather than the character and effect of the action itself.
Finally, in what can only be viewed as a Hail Mary pass, Defendants contend that their
“announced intention to pursue a formal rulemaking to codify the legal analysis” in the Jorjani
Opinion is evidence that “the M-Opinion on its own does not alter the applicable legal regime.”
Dkt. 27 (Mem. in Supp. of MTD) at 34. As far as this Court is aware, Defendants have not
followed through on their intent to initiate rulemaking. Nor did the Opinion itself note any such
intention. Quite the opposite: it stated that that its withdrawal and replacement of the Tompkins
Opinion was permanent. Dkt. 28 ex. A (Jorjani Op.) at 1. It appears that Defendants’ desire to
initiate a rulemaking bubbled up for the first time in November 2018, see Dkt. 27 (Mem. in
Supp. of MTD) at 9-10—almost a year after the Opinion was issued and nearly six months after
the NRDC and Audubon Plaintiffs filed their complaints. Although the Court hesitates to be
cynical, this timeline suggests that Defendants are attempting “to avoid judicial review through
disingenuous claims that the agency is in the process of amending a final rule through additional
rulemaking.” 20 Sabella v. United States, 863 F. Supp. 1, 5 (D.D.C. 1994).
In short, the Jorjani Opinion is a “final agency action” under Section 704.
IV.
Ripeness
“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by the
20
Defendants’ assertion that any rulemaking would simply “codify” the Jorjani Opinion’s conclusion, Dkt. 27
(Mem. in Supp. of MTD) at 34, further confirms this Court’s view that the Opinion was, in fact, the consummation
of DOI’s decision-making on the topic and further undercuts Defendants’ arguments on Bennett’s first prong.
Page 27 of 36
challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08 (2003)
(internal quotation marks omitted). “Determining whether administrative action is ripe for
judicial review requires [a court] to evaluate (1) the fitness of the issues for judicial decision and
(2) the hardship to the parties of withholding court consideration.” Id. (citation omitted); see
also, e.g., Sharkey, 541 F.3d at 89 (same).
This case is fit for judicial decision. Defendants kick up dust on this point, contending
that “judicial review of [the Jorjani Opinion] would interfere inappropriately with internal
agency decision-making processes” and that the Court “would benefit from further factual
development of the issues presented.” Dkt. 27 (Mem. in Supp. of MTD) at 36 (internal quotation
marks omitted). But, as discussed in Part III above, it is entirely unclear what further “internal
agency decision-making processes” Defendants anticipate inasmuch as the Opinion has
definitively resolved for DOI and FWS the question whether the MBTA prohibits to incidental
takes. Even more peculiar is Defendants’ argument that judicial review of the Jorjani Opinion
might “interfere with the relationship between agency officials and counsel” and thereby “inhibit
the agency’s exercise of its discretion.” Id. One of the Opinion’s stated purposes was to
eliminate altogether agency discretion with respect to incidental takes. See Dkt. 28 ex. A (Jorjani
Op.) at 32-41 (arguing that the MBTA’s incidental-take provisions are potentially
unconstitutionally vague, that prosecutorial discretion is insufficient to cure that vagueness, and
that an interpretation “that limits [the statute’s] application to affirmative and purposeful conduct
is necessary to avoid grave constitutional infirmities”). Because exposure to incidental-take
liability under the MBTA is, to borrow a phrase from Defendant Jorjani, “an all-or-nothing
proposition,” id. at 38—the MBTA prohibits incidental takes or it does not—it is unclear what
discretionary agency judgments could be affected by judicial review of a binding Opinion
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concluding that the MBTA does not prohibit incidental takes. Those “judgments” will hardly be
judgments at all.
Defendants’ factual-development argument is a throwaway. Defendants do not explain
what facts need to be developed, and the only facts that the Court can foresee requiring
evidentiary support—those relating to Plaintiffs’ standing—should pose no obstacle to judicial
review. Whether the Jorjani Opinion is consistent with the MBTA’s text, complied with Section
553, and comported with NEPA are purely legal questions. See, e.g., Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 479 (2001) (“The question before us here is purely one of statutory
interpretation that would not benefit from further factual development of the issues presented.”
(internal quotation marks omitted)); see also, e.g., Ohio Forestry Ass’n v. Sierra Club, 523 U.S.
726, 737 (1998) (“[A] person with standing who is injured by a failure to comply with the NEPA
procedure may complain of that failure at the time the failure takes place, for the claim can never
get riper.”). 21
Nor is the Court persuaded that it should delay review because doing so “would not cause
hardship to any of the Plaintiffs.” Dkt. 27 (Mem. in Supp. of MTD) at 35. A “federal court’s
obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014) (internal quotation marks
omitted). In light of this obligation, and because this case is otherwise fit for judicial review, the
question is not whether abstaining from judicial review would work any hardship on Plaintiffs,
but rather whether litigating the case now would work any hardship on Defendants. Defendants
make no argument that it would, other than those the Court has already rejected.
21
Defendants appear to concede that the Audubon Plaintiffs’ NEPA claim is ripe for review. See Dkt. 50
(Reply in Supp. of MTD) at 16 n.8 (“Defendants’ argument with respect to ripeness does not encompass the
Audubon Plaintiffs’ NEPA claim.”).
Page 29 of 36
Thus, the Court is satisfied that this case is ripe for judicial review. 22
V.
The Audubon Plaintiffs’ Notice-and-Comment Claim
Section 553 establishes the procedure agencies must follow when making rules. The
procedure begins with the agency publishing a “[g]eneral notice of proposed rule making,”
typically in the Federal Register. 5 U.S.C. § 553(b). After publication, the agency must “give
interested persons an opportunity” to comment—that is, “to participate in the rule making
through submission of written data, views, or arguments.” Id. § 553(c). The dual purposes of
the “notice and comment” procedure are “to reintroduce public participation and fairness to
affected parties after governmental authority has been delegated to unrepresentative
agencies, . . . and to assure that the agency is presented with all information and suggestions
relevant to the problem at issue.” White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993) (citations and
internal quotation marks omitted). If an agency engages in rule-making without the notice and
comment Section 553 requires, the rule-making is subject to vacatur under Section 706(2)(D) on
the ground that it was issued “without observance of procedure required by law.” 5 U.S.C.
§ 706(2)(D).
There is no dispute that the Jorjani Opinion was issued without notice and comment.
Defendants point, however, to Section 553(b), which provides that the notice-and-comment
procedure “does not apply” to, among other things, “interpretative rules.” 5 U.S.C. § 553(b).
22
Because it finds both ripeness factors satisfied, the Court need not and does not express any opinion
whether the prudential-ripeness doctrine survives Lexmark International, 572 U.S. at 126-28—a question neither the
Supreme Court nor the Second Circuit has resolved. See Driehaus, 573 U.S. at 167 (“[W]e need not resolve the
continuing vitality of the prudential ripeness doctrine in this case because the ‘fitness’ and ‘hardship’ factors are
easily satisfied here.”). But in light of Lexmark’s reminder that a federal court is generally duty-bound to decide
cases over which it has jurisdiction, the Court is not persuaded that the lack of hardship to the party seeking judicial
review is sufficient—without at least some hardship to the defendant or reason to think that the case is unfit for
judicial review—to render an APA challenge prudentially unripe.
Page 30 of 36
Defendants contend that the Jorjani Opinion is an “interpretative rule” that is exempt from
Section 553. The Court agrees.
The touchstone for distinguishing an interpretive rule from one subject to notice and
comment is whether the rule clarifies an existing statute or regulation, on the one hand, or creates
new law, rights, or duties “in what amounts to a legislative act,” on the other. White, 7 F.3d at
303. “If the rule is an interpretation of a statute rather than an extra-statutory imposition of
rights, duties or obligations, it remains interpretive even if the rule embodies the [agency’s]
changed interpretation of the statute.” Id. at 304.
The Jorjani Opinion is quintessentially interpretive. After tracing the evolution of the
MBTA and describing judicial decisions construing it, see Dkt. 28 ex. A (Jorjani Op.) at 2-17,
the Opinion turns to an “Analysis of Incidental Take Under the MBTA,” marshaling the Act’s
text, its legislative history, and various canons of statutory construction to reach its conclusion
that the Act prohibits only direct and purposeful takes, see id. at 18-41. Because the Opinion
“determines only how [incidental takes] will be treated under an existing statutory provision”
rather than imposing or modifying “an extra-statutory requirement,” it is a “paradigmatic
example of an interpretive rule” that is not subject to notice and comment under Section 553.
White, 7 F.3d at 304.
The Audubon Plaintiffs contend that the Jorjani Opinion “creates new law, rights, or
duties” because it “insulates from liability any form of incidental take” and thereby “obligat[es]
agency personnel to refrain from applying the Act as they have for decades.” 18-CV-4601 Dkt.
34 (Audubon Mem. in Opp. to MTD) at 30. Although the Court agrees with the Audubon
Plaintiffs that the Opinion prevents DOI and FWS personnel from criminally prosecuting
incidental takes and thereby effectively “insulates” private actors from MBTA liability for such
Page 31 of 36
conduct, see supra Pts. II.A, III, its purported authority for doing so is not “extra-statutory,”
White, 7 F.3d at 304. The Opinion bases its conclusion on the MBTA’s text, its legislative
history, and on judicial decisions interpreting the Act. The Opinion’s conclusion may prove to
be contrary to the Act’s text and therefore “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). But the fact that the Opinion may
have reached the wrong legal conclusion does not transform it from being an “interpretation of a
statute” into being an “extra-statutory” creation or modification “of rights, duties or obligations.”
White, 7 F.3d at 304. Neither does the fact that it reverses DOI’s prior and longstanding
understanding of the statute. See id. (“[A]n interpretive rule changing an agency’s interpretation
of a statute is not magically transformed into a legislative rule.”).
Therefore, the Court dismisses the Audubon Plaintiffs’ notice-and-comment claim.
Because the Jorjani Opinion is not subject to Section 553’s notice-and-comment procedure as a
matter of law, leave to amend is denied. See, e.g., AEP Energy Servs. Gas Holding Co. v. Bank
of Am., N.A., 626 F.3d 699, 726 (2d Cir. 2010) (“Leave to amend may be denied on grounds of
futility . . . .”).
VI.
The Audubon Plaintiffs’ NEPA Claim
“NEPA is a procedural statute that mandates a process rather than a particular result.”
Nat. Res. Def. Council, Inc. v. FAA, 564 F.3d 549, 556 (2d Cir. 2009) (internal quotation marks
omitted). It requires a federal agency to prepare an “environmental impact statement,” or “EIS,”
before taking any “major Federal action[] significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). If an agency is uncertain whether a contemplated action
requires an EIS, it must prepare an “environmental assessment,” or “EA,” that provides
“sufficient evidence and analysis for determining whether to prepare an” EIS. 40 C.F.R.
Page 32 of 36
§ 1508.9. If the agency determines that its contemplated action “will not have a significant effect
on the human environment,” and thus that an EIS is unnecessary, then it must issue a “finding of
no significant impact” that “briefly present[s] the reasons” for that conclusion. Id. § 1508.13.
Defendants contend that the Jorjani Opinion did not trigger NEPA’s procedures because the
Opinion was not a “major Federal action” under 42 U.S.C. § 4332(2)(C). See Dkt. 27 (Mem. in
Supp. of MTD) at 39-40. The Court disagrees.
Defendants seek refuge in regulations issued by the Council on Environmental Quality
(“CEQ”), a NEPA-created body within the Executive Office of the President that is tasked with
promulgating rules “applicable to and binding on all Federal agencies for implementing”
NEPA’s “procedural provisions.” 40 C.F.R. § 1500.3; see also 42 U.S.C. §§ 4342, 4344
(creating CEQ and its duties and functions); Exec. Order No. 11,514, 35 Fed. Reg. 4247 (Mar. 5.
1970), as amended by Exec. Order No. 11,991, 42 Fed. Reg. 26967 (May 24, 1977) (directing
CEQ to “[i]ssue regulations to Federal agencies for the implementation of the procedural
provisions of the Act”). Those regulations are entitled to “substantial deference.” Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 355 (1989). Attempting to shed light on the
meaning of the term “major Federal action,” one of CEQ’s regulations states that “Federal
actions tend to fall within one of [four] categories,” only one of which is potentially relevant to
the Jorjani Opinion:
Adoption of official policy, such as rules, regulations, and interpretations
adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.;
treaties and international conventions or agreements; formal documents
establishing an agency’s policies which will result in or substantially alter
agency programs.
40 C.F.R. § 1508.18(b)(1). Defendants contend that because the Jorjani Opinion “is neither a
rule nor a regulation,” and because “the legal interpretation of the MBTA offered in the
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[O]pinion was not adopted pursuant to the requirements of the APA,” it does not qualify as a
“major Federal Action” as the CEQ has authoritatively interpreted the term. Dkt. 27 (Mem. in
Supp. of MTD) at 39-40.
Even if Section 1508.18(b)’s listing of “Federal actions” were intended to be exhaustive,
the Court is not persuaded that the Jorjani Opinion fails to qualify under Section 1508.18(b)(1).
The Court agrees with Defendants that the Opinion was not adopted “pursuant to” the APA
procedural requirements codified at 5 U.S.C. § 553. See supra Pt. V. But Defendants offer no
reason to conclude that the Opinion does not qualify as a “formal document[] establishing an
agency’s policies which will result in or substantially alter agency programs.” 40 C.F.R.
§ 1508.18(b)(1). It is certainly “formal.” See Chaudhuri, 802 F.3d at 277 n.8 (“An M-Opinion
is a formal legal opinion signed by the Solicitor.”). It “permanently” establishes DOI’s policy
that the MBTA does not apply to incidental takes. Dkt. 28 ex. A (Jorjani Op.) at 1. And,
because the Opinion effectively precludes DOI and FWS personnel from prosecuting incidental
takes under the MBTA, it is at least plausible that it will “substantially alter agency programs,”
40 C.F.R. § 1508.18(b)(1), to the extent it has not already done so. 23
23
See 18-CV-8084 Dkt. 6 app. B (FWS Guidance) at 1-2 (noting that FWS “is modifying some policies and
practices within its programs” to “[e]nsure consistency with the recently issued” Jorjani Opinion; directing FWS
personnel to “ensure that [the agency’s] comments, recommendations, or requirements are not based on, nor imply,
authority under the MBTA to regulate incidental take of migratory birds”; and ordering FWS personnel not to
“withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA”).
Page 34 of 36
Because the Jorjani Opinion plausibly qualifies as a “major Federal action” as Section
1508.18(b)(1) interprets the term, 24 the Court denies Defendants’ motion to dismiss the Audubon
Plaintiffs’ NEPA claim. 25
CONCLUSION
For the foregoing reasons, these cases are consolidated pursuant to Fed. R. Civ. P.
42(a)(2) under Docket No. 18-CV-4596, and Defendants’ motions to dismiss are GRANTED IN
PART and DENIED IN PART. The Audubon Plaintiffs’ claim that the Jorjani Opinion was
24
Section 1508.18(b) interprets the term “Federal action” rather than “major Federal action,” the key
statutory phrase in 42 U.S.C. § 4332(2)(C). Another part of Section 1508.18(b) clarifies that, as used in 42 U.S.C.
§ 4332(2)(C), the word “major” “reinforces but does not have a meaning independent of” the word “significantly,”
as in “significantly affecting the quality of the human environment.” The upshot is that an agency action that falls
into one of Section 1508.18(b)’s four categories of “Federal action” is a “major Federal action” under NEPA so long
as it “significantly affect[s] the quality of the human environment.” Because Defendants do not contest whether the
Jorjani Opinion significantly affects the quality of the human environment, and because the Opinion qualifies as a
“Federal action” under Section 1508.18(b), the Court is satisfied—at least at this phase of this litigation—that the
Opinion is a “major Federal action” under 42 U.S.C. § 4332(2)(C).
The Court notes that Defendants’ reading of Section 1508.18(b)(1) appears to be at odds with DOI’s own
regulations interpreting NEPA. One of those regulations provides that a DOI-proposed action “is subject to the
procedural requirements of NEPA if it would cause effects on the human environment . . . and is subject to bureau
control and responsibility.” 43 C.F.R. § 46.100(a). A subsequent regulation excludes “legal opinions,” among other
actions, from NEPA coverage. Id. § 46.210(d). Yet another regulation provides, however, that an agency action
that ordinarily would be categorically excluded from NEPA coverage nonetheless is covered if it has “significant
impacts on such natural resources” as “migratory birds.” Id. § 46.215(b). As Defendants acknowledge, see Dkt. 50
(Reply in Supp. of MTD) at 18 n.9, the fact that DOI’s regulations purport to categorically exclude “legal opinions”
from NEPA coverage indicates that legal opinions can, even in DOI’s view, qualify as “major Federal actions” that
are subject to NEPA under the right circumstances. Defendants may be right that not every legal opinion so
qualifies, but it appears the Jorjani Opinion may: the Audubon Plaintiffs have plausibly pleaded that the Opinion
“cause[s] effects on the human environment,” 40 C.F.R. § 46.100(a); see also supra Pt. II.B; the Opinion is
undisputedly “subject to bureau control and responsibility,” id.; and it appears to “[h]ave significant impacts
on . . . migratory birds,” 40 C.F.R. § 46.215(b); see also supra Pt. II. The Court reserves a definitive decision on
this issue until the parties more thoroughly brief it.
25
Because it has already held that the Jorjani Opinion was a final agency action, see supra Pt. III, the Court
rejects Defendants’ argument that the NEPA claim must be dismissed because a claim that an agency action was
issued without NEPA compliance is really a claim under 5 U.S.C. § 706, which requires final agency action. See
Dkt. 27 (Mem. in Supp. of MTD) at 39. And because the Court denies Defendants’ motion to dismiss the NEPA
claim on the ground that, at least at this stage, the Jorjani Opinion appears to be a major federal action, it need not
and does not address the Audubon Plaintiffs’ contention that, even if the Jorjani Opinion does not itself qualify as a
major federal action, it and FWS’s guidance regarding the Opinion together so qualify. See 18-CV-4601 Dkt. 34
(Audubon Mem. in Opp. to MTD) at 28-29.
Page 35 of 36
issued without notice and comment in violation of 5 U.S.C. § 553 is dismissed with prejudice.
The motions are denied as to all other claims.
The Clerk of Court is respectfully directed to (a) terminate the open motions at Dkt. 26 in
18-CV-4596, Dkt. 29 in 18-CV-4601, and Dkt. 44 in 18-CV-8084; (b) consolidate these three
cases under docket number 18-CV-4596; and (c) close 18-CV-4601 and 18-CV-8084. All
further submissions in this now-consolidated case must be filed under docket number 18-CV4596.
The parties must appear for a status conference on August 16, 2019, at 10:00 A.M. No
later than August 9, 2019, they must submit a joint letter (a) setting forth their views on whether
a status conference is necessary or will be beneficial; (b) proposing a schedule for the production
of the administrative record; (c) proposing a schedule for briefing cross-motions for summary
judgment; and (d) discussing any other matters they believe pertinent to expeditiously litigating
this case.
SO ORDERED.
________________________
VALERIE CAPRONI
United States District Judge
Date: July 31, 2019
New York, New York
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