Kan. Natural Res. Coal. v. U.S. Dep't of the Interior

Citation: 382 F. Supp. 3d 1179Docket: Case No. 18-1114-EFM-GEB

Court: District Court, D. Kansas; April 8, 2019; Federal District Court

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Kansas Natural Resource Coalition (KNRC) filed a lawsuit against the United States Department of the Interior, Ryan Zinke (Secretary), the United States Fish and Wildlife Service, and Greg Sheehan (Principal Deputy Director of the Fish and Wildlife Service). KNRC claims the Defendants delayed submitting a rule under the Congressional Review Act (CRA), which it argues adversely impacts its conservation plan for the lesser prairie chicken. The Defendants moved to dismiss the case, arguing that judicial review is prohibited by the CRA, that KNRC lacks Article III standing, and that the claim is barred by the statute of limitations. The court agreed that judicial review is precluded and granted the motion to dismiss.

KNRC represents county governments in western Kansas and Wichita, advocating for local involvement in conservation and natural resource policy. The Department of the Interior administers the Endangered Species Act (ESA) for nonmarine species, with Zinke overseeing it. The Fish and Wildlife Service administers the ESA's day-to-day operations, including species listings, and Sheehan acts in a leadership role. The ESA identifies endangered and threatened species and enforces regulations to protect them. The Fish and Wildlife Service developed the Policy for Evaluating Conservation Efforts When Making Listing Decisions (PECE) in 2003, which guides consideration of conservation agreements in species listing decisions.

The CRA, enacted in 1996, requires agencies to submit new rules to Congress before they take effect and explicitly states that its determinations are not subject to judicial review. KNRC contends that PECE was not submitted to Congress as mandated by the CRA, even though the Fish and Wildlife Service has treated it as effective since 2003. The lesser prairie chicken has been proposed for listing as threatened under the ESA, prompting efforts from various stakeholders to create a conservation plan for the species.

In 2013, KNRC created a conservation plan for the lesser prairie chicken, which was adopted by its member counties. The species was listed as threatened by the Fish and Wildlife Service in 2014, but this listing was challenged by participants in the conservation plan. In 2015, the District Court for the Western District of Texas invalidated the listing, determining that the Fish and Wildlife Service did not adhere to its own rule, PECE, during the analysis. Consequently, the listing was vacated, and the Fish and Wildlife Service withdrew it. Following this, petitions for relisting the species were submitted, and a review of these petitions is currently ongoing.

On April 10, 2018, the Plaintiff filed a lawsuit claiming that the Fish and Wildlife Service's failure to submit PECE to Congress creates regulatory uncertainty and litigation risks that undermine the conservation plan. The Plaintiff seeks a declaration that PECE was unlawfully withheld and requests the court to compel the Fish and Wildlife Service to submit PECE to Congress. In response, the Defendants filed a Motion to Dismiss, arguing lack of judicial review, lack of standing, and that the statute of limitations has expired.

The Defendants' motion cites Federal Rules of Civil Procedure 12(b)(1) and (6), questioning the subject matter jurisdiction and the sufficiency of the Plaintiff's claims. The court must assess whether the complaint presents enough factual basis to support a plausible claim for relief. The Defendants assert that the CRA precludes judicial review of the issue, while the Plaintiff contends that the CRA's language, along with statutory interpretation and legislative history, does not support the Defendants' interpretation and refers to cases where district courts considered a rule’s effect under the CRA.

Under 5 U.S.C. 801(a)(1)(A), federal agencies must submit a rule, a concise statement regarding the rule (including its classification as a major rule), and the proposed effective date to Congress and the Comptroller General before the rule can take effect. Congress then has a specified timeframe to disapprove the rule via a joint resolution, which the President can sign or veto. If the resolution passes, the rule is rendered ineffective. Section 805 of the CRA states that no determination or omission under this chapter is subject to judicial review, which has been interpreted to prohibit judicial review of an agency's failure to submit required documentation to Congress. Courts, including several district courts and at least one circuit court, have upheld the plain meaning of this provision. In the case of Montanans for Multiple Use v. Barbouletos, a district court ruled that the statute was unambiguous and barred judicial review of the U.S. Forest Service's alleged failure to submit a management plan. The D.C. Circuit affirmed this decision, emphasizing that Section 805 denies courts the authority to void rules based on agency noncompliance with the CRA. While most courts have aligned with this interpretation, two district court cases have suggested that Section 805 may not preclude judicial review in certain contexts, with one court finding the statute ambiguous regarding Congress's intent.

Allowing agencies to avoid review of their omissions contradicts the purpose of the Congressional Review Act (CRA), which is designed to provide oversight on agency policymaking without Congressional approval. The court determined that Section 805's reference to "under this chapter" pertains solely to Congressional findings and determinations, as agencies do not operate under this chapter. Consequently, the court asserted jurisdiction to review whether an agency rule, which should have been reported to Congress under the CRA, is in effect. 

In a related case, the U.S. District Court for the District of Idaho found Section 805 ambiguous and did not rule out the possibility of judicial review. However, the court leaned towards cases that interpret Section 805 as unambiguous and preclusive of such review, noting a Tenth Circuit statement indicating that Section 805 prohibits judicial review of an agency's compliance. The court deemed it unnecessary to analyze legislative history due to the statute's clarity. Ultimately, the court concluded that Section 805 prohibits judicial review of the Fish and Wildlife Service's failure to submit a report to Congress, leading to the dismissal of the Plaintiff's claim for lack of subject matter jurisdiction. The court granted the Defendants' Motion to Dismiss and denied the Plaintiff's Motion to Strike, thereby closing the case.

The excerpt outlines several court rulings indicating that 5 U.S.C. § 805 prohibits judicial review of certain agency actions. Various cases, including Forsyth Mem'l Hosp. v. Sebelius and In re Operation of the Missouri River Sys. Litig., highlight that the designation of critical habitats and claims regarding rules not submitted to Congress fall outside judicial review under § 805. The excerpt notes a disagreement between parties regarding the relevance of a Tenth Circuit ruling in Via Christi Reg'l Med. Ctr., with the plaintiff arguing that the defendants were improperly raising this issue. The court clarified that defendants could reference Via Christi, emphasizing that Tenth Circuit opinions must be considered regardless of parties' citations. The court also references Washington All. of Tech. Workers v. U.S. Dep't of Homeland Sec., which upheld the dismissal of claims due to the prohibition of judicial review under § 805. While recognizing conflicting opinions on § 805's clarity, the court found that most cited cases did not adequately address its implications, leading to a need for clear guidance. Additionally, the court noted a 2017 legislative proposal to amend § 805 to allow judicial review of agency compliance with rule-making procedures, indicating that the current statute's language is seen as a barrier to such reviews. Congress has not passed this proposed amendment.