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Kansas Natural Resource Coalition v. United States Department of Interior

United States District Court, D. Kansas

April 8, 2019

KANSAS NATURAL RESOURCE COALITION, Plaintiff,
v.
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

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         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 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 range-wide 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.

         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 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 (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 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 ...


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