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

971 F.3d 1222

KANSAS NATURAL RESOURCE COALITION, Plaintiff - Appellant,

v.UNITED STATES DEPARTMENT OF INTERIOR; David Bernhardt, in his official capacity as Secretary of the Department of the Interior; United States Fish and Wildlife Service; Margaret Everson, in her official capacity as Principal Deputy Director of the U.S. Fish and Wildlife Service, Defendants - Appellees.

No. 19-3108

United States Court of Appeals, Tenth Circuit.

FILED August 24, 2020

Jonathan Wood, Pacific Legal Foundation, Arlington, Virginia (Jeffrey W. McCoy and Caleb R. Trotter, Pacific Legal Foundation, Sacramento, California; and Kenneth Estes, Lakin, Kansas, with him on the briefs), for Plaintiff - Appellant.

Brian C. Toth, Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C. (Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Bridget K. McNeil, Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Joan R. Goldfarb and Maria E. Lurie, Of Counsel, Office of the Solicitor, United States Department of Interior, Washington, D.C., with him on the brief), for Defendants - Appellees.

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

In this Administrative Procedure Act ("APA") case, plaintiff Kansas Natural Resource Coalition ("KNRC") seeks an order enjoining the United States Department of the Interior ("DOI") to submit its rules to Congress, pursuant to the Congressional Review Act ("CRA"), before those rules "take effect." 5 U.S.C. § 801(a)(1)(A). The district court dismissed for lack of subject matter jurisdiction because the CRA contains a provision prohibiting judicial review of any "omission under this chapter." 5 U.S.C. § 805. We affirm based on KNRC's lack of Article III standing. We further decline to remand the case so that KNRC may amend its complaint because, in any event, the district court is correct that it lacks subject matter jurisdiction.

I. BACKGROUND

A. Factual History

1. The Congressional Review Act

The CRA, enacted as part of the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, §§ 251–53, 110 Stat. 857, 868–74 (codified as amended at 5 U.S.C. §§ 801 – 08 ), provides:

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.

5 U.S.C. § 801(a)(1)(A).

The CRA contemplates that, with respect to any rule, Congress may enact "a joint resolution of disapproval."¹ Id. § 801(b)(1). If Congress passes and the President signs such a resolution, the rule "shall not take effect (or continue)." Id. Thereafter, the disapproved-of rule

may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.

Id. § 801(b)(2).

The CRA further provides that "[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review." Id. § 805. The CRA also includes a severability clause that states: "If any provision of this chapter or the application of any provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remainder of this chapter, shall not be affected thereby." Id. § 806(b). Moreover, the CRA instructs that if Congress "does not enact a joint resolution of disapproval ..., no court or agency may infer any intent of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval." Id. § 801(g).

During floor debate on the CRA in the House of Representatives, Congressman David M. McIntosh stated as follows:

As the principal House sponsor of the Congressional Review subtitle, I am very proud that this bill will soon be sent to the President again, and I hope signed by him this time. The House and Senate passed an earlier version of this subtitle as section 3006 of H.R. 2586, which was vetoed by the President last November. Before it becomes law, this bill will have passed the Senate at least four times and passed the House at least twice. In discussions with the Senate and House co-sponsors this past week, we made several changes to the version of this subtitle that both bodies passed on November 9, 1995, and the version that the Senate passed last week. I will be happy to work with Chairman HYDE and Chairman CLINGER on a document that we can insert in the CONGRESSIONAL RECORD at a later time to serve as the equivalent of a floor managers' statement. But because this bill will not likely have a conference report or managers' statement prior to passage, I offer the following brief explanation for some of the changes in the subtitle:

142 Cong. Rec. H3005 (daily ed. Mar. 28, 1996) (emphasis added).

On April 18, 1996, almost three weeks after passage of the CRA, Senator Don Nickles entered a joint statement into the Congressional Record on behalf of himself, Senator Harry Reid, and Senator Ted Stevens that was "intended to provide guidance to the agencies, the courts, and other interested parties when interpreting the [CRA's] terms." 142 Cong. Rec. S3683 (daily ed. Apr. 18, 1996).

That joint statement explained the meaning and purpose of § 805, the CRA's judicial review provision, as follows:

Section 805 provides that a court may not review any congressional or administrative "determination, finding, action, or omission under this chapter." Thus, the major rule determinations made by the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget are not subject to judicial review. Nor may a court review whether Congress complied with the congressional review procedures in this chapter. This latter limitation on the scope of judicial review was drafted in recognition of the constitutional right of each House of Congress to "determine the Rules of its Proceedings," U.S. Const., art. I, § 5, cl. 2, which includes being the final arbiter of compliance with such Rules.

The limitation on a court's review of subsidiary determination or compliance with congressional procedures, however, does not bar a court from giving effect to a resolution of disapproval that was enacted into law. A court with proper jurisdiction may treat the congressional enactment of a joint resolution of disapproval as it would treat the enactment of any other federal law. Thus, a court with proper jurisdiction may review the resolution of disapproval and the law that authorized the disapproved rule to determine whether the issuing agency has the legal authority to issue a substantially different rule. The language of subsection 801(g) is also instructive. Subsection 801(g) prohibits a court or agency from inferring any intent of the Congress only when "Congress does not enact a joint resolution of disapproval," or by implication, when it has not yet done so. In deciding cases or controversies properly before it, a court or agency must give effect to the intent of the Congress when such a resolution is enacted and becomes the law of the land. The limitation on judicial review in no way prohibits a court from determining whether a rule is in effect. For example, the authors expect that a court might recognize that a rule has no legal effect due to the operation of subsections 801(a)(1)(A) or 801(a)(3).

Id. at S3686. The next day, Congressman Henry J. Hyde offered for the record in the House of Representatives a statement that included the same two paragraphs quoted above. 142 Cong. Rec. E577 (daily ed. Apr. 19, 1996).

In 2006, the House Judiciary Committee published a report that referred to the Senators' joint statement—in a footnote—as "the most authoritative contemporary understanding of the provisions of the law." Staff of H. Comm. on the Judiciary, Subcomm. on Commercial & Admin. L., 109th Cong., Interim Rep. on the Admin. Law, Process & Procedure Project for the 21st Century 86 n.253 (Comm. Print 2006). But the report also referred to the joint statement as "post-enactment legislative history" that "does not carry the weight that committee report explanations and floor debates provide." Id.

2. The PECE Rule

The Endangered Species Act requires the Secretary of Interior to "determine whether any species is an endangered species or a threatened species." 16 U.S.C. § 1533(a)(1). In the course of making these required determinations, Congress has instructed the Secretary to take into account "those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas." Id. § 1533(b)(1)(A).

On March 28, 2003, DOI—through the United States Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service—announced "a final policy for the evaluation of conservation efforts when making listing decisions" under the Endangered Species Act. Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 68 Fed. Reg. 15,100, 15,100 (Mar. 28, 2003) (the "PECE Rule" or "Rule"). The PECE Rule,² issued with an effective date of April 28, 2003, identifies criteria for DOI to "use in determining whether formalized conservation efforts that have yet to be implemented or to show effectiveness contribute to making listing a species as threatened or endangered unnecessary." Id.

Those criteria are: "(1) [t]he certainty that the...