United States v. Hatcher

656 F.Supp.3d 1233

UNITED STATES of America, Plaintiff, v. Deval HATCHER, Defendant.

Case No. 2:23-cr-00012-NJK

United States District Court, D. Nevada

Signed February 16, 2023

Nadia Janjua Ahmed, United States Attorney's Office, Las Vegas, NV, for Plaintiff.

Benjamin F. Nemec, Federal Public Defender, Las Vegas, NV, for Defendant.

Order

[Docket No. 12]

Nancy J. Koppe, United States Magistrate Judge

Pending before the Court is Defendant's motion to dismiss for violation of nondelegation doctrine. Docket No. 12. The United States filed a response, Docket No. 8, and Defendant filed a reply, Docket No. 14. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons more fully discussed below, Defendant's motion is DENIED.

I. BACKGROUND

Defendant is charged with operating a vehicle in excess of the posted speed limit in Red Rock National Conservation Area on September 2, 2022, all in violation of 43 C.F.R. § 83651.1-3(a).¹,² Docket No. 1 at 1. 43 C.F.R. § 83651.1-3(a) was promulgated by the Secretary of the Interior pursuant to authority delegated to her under 43 U.S.C. § 1733(a).³

Defendant submits that the citation against him should be dismissed because only Congress can make acts criminal. Docket No. 12 at 2. Defendant further submits the regulation under which he is charged was "promulgated by the executive branch instead of the legislative branch pursuant to an unlawfully broad and limitless delegation of power," and is therefore unconstitutional. Id. The United States responds that "the delegation of authority by Congress to the Secretary of the Interior pursuant to 43 U.S.C. § 1733 does not run afoul of the non-delegation doctrine." Docket No. 8 at 3.

II. STANDARDS

The Constitution of the United States vests the power to legislate in Congress. U.S. Const. art. 1, § 1. Under this constitutional structure, "Congress generally cannot delegate its legislative power to another Branch." Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). This restriction is commonly known as the nondelegation doctrine. "Under modern precedent, this is an exceedingly modest limitation." United States v. Melgar-Diaz, 2 F.4th 1263, 1266 (9th Cir. 2021). Supreme Court precedent recognizes that "the Constitution does not deny to the Congress the necessary resources of flexibility and practicality" such that "Congress may obtain the assistance of its coordinate Branches - and in particular, may confer substantial discretion on executive agencies to implement and enforce the laws." Gundy v. United States, — U.S. —, 139 S. Ct. 2116, 2123, 204 L.Ed.2d 522 (2019) (internal quotations and citations omitted). "So long as Congress lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform, such legislative action is not a forbidden delegation of power." Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)). "This means that a delegation is permissible if Congress has made clear to the delegee the 'general policy' he must pursue and the 'boundaries of his authority.' " Melgar-Diaz, 2 F.4th at 1267 (quoting Gundy, 139 S. Ct. at 2129). Determining whether Congress provided an intelligible principle "requires construing the challenged statute to figure out what task it delegates and what instructions it provides." Gundy, 139 S. Ct. at 2123 (citing Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 473, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)).

III. DISCUSSION

Defendant submits that 43 U.S.C. § 1733(a) lacks an intelligible principle to guide the Secretary in promulgating regulations.⁴ Docket No. 12 at 2-3. The United States cites United States v. Kittel, 2021 WL 3823185 (D. Or. 2021), for the proposition that courts in the Ninth Circuit have found a statute similar to 43 U.S.C. § 1733(a) to contain an intelligible principle, Docket No. 8 at 5. The Kittel court reached its conclusion by adopting the reasoning in United States v. Cassiagnol, 420 F.2d 868, 876-77 (4th Cir. 1970). Kittel, 2021 WL 3823185 at *4-*5. The United States also adopts the reasoning of Cassiagnol in its brief. Docket No. 8 at 5-6.

Cassiagnol involved antiwar protestors at the Pentagon challenging their convictions for violating various General Service Administration ("GSA") regulations promulgated under 40 U.S.C. § 318. 420 F.2d at 875-76. The Cassiagnol defendants "allege[d] that the broad grant of authority to GSA exceeds the permissible right of Congress to delegate its own authority." Cassiagnol, 420 F.2d at 876. The Cassiagnol court found that the statute limited GSA's authority to "establish regulations only as to government property under its charge and control." Id. Similarly, the Cassiagnol court noted that the general policy GSA was to pursue was to promulgate " 'needful rules and regulations' to maintain and protect such property and ensure its use for the authorized purpose." Id. (quoting 40 U.S.C. § 318a). It concluded that such a broad grant of authority was appropriate because of the "wide variety" of buildings under GSA control. Id. Accordingly, the Cassiagnol court found "40 U.S.C. § 318 to be a constitutional delegation of administrative authority to the Administrator of GSA." Id. at 877.

Defendant attacks the United States' reliance on Cassiagnol on several grounds. Defendant first submits that Cassiagnol lacks persuasive value because it fails to address the "Supreme Court's unequivocal[ ] declaration [that] 'only the people's elected representatives in the legislature are authorized to make an act a crime.' " Docket No. 14 at 5 (quoting Davis, 139 S. Ct. at 2325). This submission is a variant of Defendant's separation of powers argument discussed above. The Court declines to address this argument for the reasons previously stated.

Defendant further submits that Cassiagnol is of little persuasive value because "it did not have an opportunity to consider the more recent denouncements and abrogations of the nondelegation clause." Docket No. 14 at 5. Defendant is correct that Cassiagnol predates much of the Supreme Court's nondelegation jurisprudence. The Fourth Circuit, however, has recently found Cassiagnol's reasoning decisive in a nondelegation challenge.

In United States v. Moriello, 980 F.3d 924 (4th Cir. 2020), the Fourth Circuit considered whether 40 U.S.C. § 1315, the modern successor to the statute at issue in Cassiagnol, violated the nondelegation doctrine.⁵ Moriello reaffirmed Cassiagnol's conclusion that "it is reasonable and constitutional to delegate to the agency charged with maintenance and protection of government property the right to fix minimum acceptable conduct thereon." Moriello, 980 F.3d at 932 (quoting Cassiagnol, 420 F.2d at 876-77). Indeed, the Moriello court concluded that 40 U.S.C. § 1315 provided a narrower delegation of authority than 40 U.S.C. § 318a. Id. at 933. This is because the former "delegated the authority to 'make all needful rules and regulations for government of the property' " under GSA control whereas the latter "specifies that the rules must be 'for the protection and administration of property owned or occupied by the Federal Government.' " Id. (quoting 40 U.S.C. §§ 318a (2002), 1315(c)) (emphasis added). Cassiagnol, therefore, is still persuasive law.

Defendant further submits that Cassiagnol's reasoning regarding the limitation of delegated authority fails when applied to the Bureau of Land Management ("BLM") because it manages significantly more property than the GSA. Docket No. 14 at 5-6. Defendant fails to explain, however, how the government's interest in administering its property is substantively changed by the amount of property at issue. Indeed, given that the BLM manages such a wide variety of property relative to the GSA, the logic of Cassiagnol suggests that Congress could delegate even more discretion to the BLM than to the GSA.⁶ Cf. Cassiagnol, 420 F.2d at 876.

The Court finds the reasoning from Cassiagnol and Moriello persuasive. 43 U.S.C. § 1733(a) directs that "[t]he Secretary [of the Interior] shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands, including the property located thereon." Much like the statute at issue in Moriello, § 1733(a) requires regulations be for "the management, use, and protection of the public lands." The Secretary's regulatory authority is further narrowed by Congressional declarations regarding the promulgation of regulations and the policy and management objectives those regulations should pursue. See 43 U.S.C. §§ 1701(5), (8), (12).⁷ Additionally, § 1733(a) limits the Secretary's authority to the statutorily defined "public lands." See 43 U.S.C. § 1702(e).⁸ Considering the reasoning in Cassiagnol and Moriello, and because "Congress has made clear to the delegee the 'general policy' [s]he must pursue and the 'boundaries of [her] authority," Melgar-Diaz, 2 F.4th at 1267 (internal citation omitted), the Court finds that 43 U.S.C. § 1733(a) is not an unconstitutional delegation of legislative power.

IV. CONCLUSION

For the reasons more fully discussed above, Defendant's motion to dismiss for violation of nondelegation doctrine is DENIED in part and DENIED without prejudice in part. Docket No. 12. Defendant's nondelegation challenge is DENIED. Defendant's separation of powers challenge is DENIED without prejudice. Any renewed motion raising a separation of powers argument must be submitted no later than February 23, 2023.

IT IS SO ORDERED.

1. Defendant was originally charged with resisting issuance of a citation in violation of 43 C.F.R. § 8365.1-4(a)(4) and exceeding posted speed in violation of 43 C.F.R. § 83651.1-3(a). Docket No. 7 at 2. The United States dismissed the charge of resisting issuance of a citation. See Docket No....