971 F.3d 1222
10th Cir.2020Background
- In 2003 DOI promulgated the PECE Rule (Policy for Evaluation of Conservation Efforts) setting criteria for when conservation efforts can preclude ESA listing; KNRC alleges DOI never submitted that rule to Congress as required by the Congressional Review Act (CRA).
- KNRC, an association of Kansas counties, adopted a conservation plan for the lesser prairie‑chicken and says uncertainty about the PECE Rule’s legal effect undermines counties’ willingness to implement the plan.
- DOI listed the lesser prairie‑chicken as threatened in 2014; that listing was vacated and withdrawn after litigation, and DOI later agreed to a status‑review schedule in separate litigation.
- In 2018 KNRC sued under the Administrative Procedure Act seeking an order requiring DOI to submit the PECE Rule to Congress (alleging agency action unlawfully withheld or unreasonably delayed, 5 U.S.C. § 706(1)).
- The district court dismissed for lack of jurisdiction relying on CRA § 805 ("No determination, finding, action, or omission under this chapter shall be subject to judicial review").
- The Tenth Circuit affirmed: the majority held KNRC lacked Article III standing and concluded § 805’s plain language precluded review of the claimed omission; a dissent argued KNRC had procedural standing and that the presumption of judicial review required a narrower reading of § 805.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | KNRC: procedural injury — DOI’s failure to submit PECE creates concrete uncertainty that undermines implementation of its conservation plan | DOI: alleged injury is speculative and not concrete or particularized | Court: KNRC failed to plausibly allege a concrete, particularized, imminent injury; no Article III standing |
| Jurisdiction under CRA § 805 | KNRC: § 805 should not bar judicial review of an agency’s refusal to submit a rule; courts can determine whether a rule is in effect | DOI: § 805 bars judicial review of any "omission under this chapter," including failure to submit rules | Court: § 805’s plain language covers omissions required by the CRA; it precludes review of DOI’s omission |
| Presumption of judicial review | KNRC: statutory presumption favors review; DOI must meet heavy burden to show review is barred | DOI: § 805 is unambiguous and displaces the presumption | Court: because § 805 unambiguously applies, the presumption is rebutted; dissent disagreed and would apply the presumption to construe § 805 narrowly |
| Remand to amend complaint | KNRC: standing allegations are curable; ask to amend if needed | DOI: dismissal is appropriate and § 805 bars review regardless | Court: declines remand for amendment because it agrees there is no subject‑matter jurisdiction under § 805 |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III standing requires concrete, particularized, and imminent injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing framework and requirements for injury in fact)
- Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015) (agency bears heavy burden to show Congress intended to preclude judicial review)
- Block v. Community Nutrition Institute, 467 U.S. 340 (1984) (interpretation of statutes that purport to preclude judicial review—consider structure, history, objectives)
- Kucana v. Holder, 558 U.S. 233 (2010) ("under" is context‑dependent; presumption of review applied to resolve ambiguity)
- Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018) (strong presumption favoring judicial review of administrative action)
- Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016) (clear and convincing evidence required to rebut presumption of judicial review)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (claim under APA § 706(1) concerns discrete, mandatory agency action unlawfully withheld)
- Via Christi Reg. Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259 (10th Cir. 2007) (cited for statement that CRA limits judicial review of agency compliance)
- Center for Biological Diversity v. Bernhardt, 946 F.3d 553 (9th Cir. 2019) (CRA interpretation and limits on challenges to congressional procedures)