KANSAS NATURAL RESOURCE COALITION, Plаintiff - 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 for the Tenth Circuit
August 24, 2020
PUBLISH
Appeal from the United States District Court for the District of Kansas (D.C. No. 6:18-CV-01114-EFM-GEB)
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.
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.”
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
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 cоncise general statement relating to the rule, including whether it is a major rule; and (iii) the proposed effective date of the rule.
The CRA contemplates that, with respect to any rule, Congress may enact “a joint resolution of disapproval.”1
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.
The CRA further provides that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.”
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 Senatе 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.”
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 conservation efforts will be implemented and (2) the certainty that the efforts will be effective.” Id. at 15,101. The
KNRC alleges that DOI never submitted the PECE Rule to Congress. Nevertheless, FWS treats the Rule as if it is in effect.
3. The Lesser prairie-chicken
On December 11, 2012, DOI proposed listing the lesser prairie-chicken as a threatened species under the Endangered Species Act. See Listing the Lesser Prairie-Chicken as a Threatened Species, 77 Fed. Reg. 73,826. In response, the Western Association of Fish and Wildlife Agencies implemented a conservation plan that it hoped would avoid the need for a listing.
Despite these efforts, on April 10, 2014, DOI announced it was listing the lesser prairie-chicken as threatened, effective May 12, 2014. See Determination of Threatened Status for the Lesser Prairie-Chicken, 79 Fed. Reg. 19,973, 19,974 (the “listing decision“). On September 1, 2015, the United States District Court for the Western District of Texas vacated the listing decision because DOI “failed to properly apply” the PECE Rule. Permian Basin Petroleum Ass‘n v. Dep‘t of the Interior, 127 F. Supp. 3d 700, 707 (W.D. Tex. 2015).3 On July 20, 2016, DOI complied with the district court‘s ruling and withdrew the listing decision. See Lesser Prairie-Chicken Removed From the List of Endangered and Threatened Wildlife, 81 Fed. Reg. 47,047.
On September 8, 2016, several nonprofits petitioned DOI to list the lesser prairie-chicken as endangered. On November 30, 2016, DOI determined that an emergency listing was not warranted, but also initiated a status review because the petition presented “substantial scientific or commercial information indicating that listing the lesser prairie-chicken may be warranted.” Endangered and Threatened Wildlife and Plants; 90-Day Findings on Three Petitions, 81 Fed. Reg. 86,315, 86,317.
On June 12, 2019, the petitioner-nonprofits sued DOI in the United States District Court for the District of Columbia for failing to publish a complete finding on whether listing of the lesser prairie-chicken is warranted. Complaint, Defs. of Wildlife v. Bernhardt, No. 1:19-cv-01709-RC (D.D.C. June 12, 2019), ECF No. 1. On September 16, 2019, the district court approved a settlement agreement whereby DOI agreed to publish a new 12-month finding on whether listing is warranted no later than May 26, 2021. See Stipulated Settlement Agreement, Defs. of Wildlife (D.D.C. Sept. 16, 2019), ECF No. 7, at 2.
4. KNRC‘s Conservation Plan
KNRC is “an organization of county governments in western Kansas that promotes local government participation in federal and state policy on conservation and natural resource issues.” App. at 8. It is funded and governed by member counties.
In 2013, KNRC developed its own conservation plan for the lesser prairie-chicken, which all its member counties adopted. KNRC‘s plan “calls for counties to develop and implement policies to control invasive
Because DOI has not submitted the PECE Rule to Congress, KNRC alleges the Rule has no lawful effect. And because the Rule is not legally effective, KNRC and its member counties claim they may not beneficially rely on the Rule in implementing KNRC‘s lesser prairie-chicken conservation plan. This allegedly puts conservation agreement participants “in a bind: they must show that their plans are certain to be implemented and effective but the failure to submit the PECE Rule undermines the incentives necessary to achieve that certainty.” App. at 17-18; see also App. at 21-22.
B. Procedural History
On April 10, 2018, KNRC filed a complaint for declaratory and injunctive relief against DOI, the Secretary of Interior, FWS, and the Principal Deputy Director of FWS in the United States District Court for the District of Kansas. The complaint asserted a single claim for relief under the APA, based on the theory that DOI‘s ongoing failure to submit the PECE Rule to Congress constitutes “agency action unlawfully withheld or unreasonably delayed.” App. at 23 (quoting
- “a declaration that submission of the rule under the [CRA] is agency action unlawfully withheld or unreasonably delayed;”
- “a declaration that [DOI] must submit the rule to Congress without delay;”
- “an injunction requiring [DOI] to submit the rule to Congress under the [CRA];” and
- “an award of KNRC‘s cost of litigation.”
App. at 23-24.
DOI moved to dismiss the complaint, asserting that (1) KNRC lacks Article III standing; (2) the limitations period has expired; and (3)
On April 8, 2019, the district court granted DOI‘s motion based solely on its judicial review argument. Specifically, the district court found the “plain language” of
The district court entered judgment on April 10, 2019. KNRC timely filed a notice of appeal on May 23, 2019.
II. DISCUSSION
We begin our analysis by explaining that KNRC has not plausibly alleged Article III standing. In the interest of judicial economy, however, we then proceed to the question of subject matter jurisdiction. See Sinochem Int‘l Co. v. Malaysia Int‘l Shipping Corp., 549 U.S. 422, 431 (2007) (“[T]here is no mandatory ‘sequencing of jurisdictional issues.‘” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999))). Because we agree with the district court that it lacked subject matter jurisdiction, we decline to remand for the purpose of allowing KNRC
A. Article III standing.
The Constitution extends the “judicial Power” only to “Cases” and “Controversies.”
DOI disputes that KNRC has alleged an injury in fact. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). For an injury to be concrete, “it must actually exist.” Id. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.‘” Id. (quoting Lujan, 504 U.S. at 560 n.1). And for an injury to be imminent, it “must be ‘certainly impending.‘” COPE v. Kan. State Bd. of Educ., 821 F.3d 1215, 1222 (10th Cir. 2016) (quoting Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409 (2013)).
“At the pleading stage, general factual allegations of injury resulting from the defendant‘s conduct may suffice.” Lujan, 504 U.S. at 561. “However, ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.‘” COPE, 821 F.3d at 1221 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The complaint alleges that DOI‘s ongoing violation of the CRA “undermines” KNRC‘s conservation plan by creating uncertainty. App. at 22. In KNRC‘s view, this аllegation encompasses four possible injuries. First, KNRC claims it is injured because it cannot rely on the PECE Rule until the Rule takes effect, and the Rule cannot take effect until it is submitted to Congress. See
1. KNRC‘s First Theory: The Impact of a Rule Not Lawfully in Effect.
KNRC‘s first theory of standing is that it cannot rely on the PECE Rule in implementing its conservation plan, because the Rule has not lawfully taken effect. This, in turn, “undermines the incentives for counties and property owners to participate in KNRC‘s plan.” App. at 22. According to KNRC, certainty is “essential” because “preparing a conservation plan requires the commitment of vast resources.” App. at 17.
KNRC alleges in genеral terms that, “to provide the certainty that the conservation efforts called for in the plan will be implemented, participating counties and property owners must have confidence that the PECE Rule is lawfully in effect.” App. at 21. But, to reiterate, KNRC does not allege that anyone besides KNRC itself—in this lawsuit—has exhibited any lack of confidence in the Rule. And the complaint describes counties’ and property owners’ “incentives” without alleging that any of them is having doubts about participating in KNRC‘s conservation plan. App. at 22.4
To overcome these shortcomings in the complaint, KNRC analogizes its situation to that of a petitioner seeking a required response from an agency. See Appellant Reply at 21 (citing
Contrary to KNRC‘s contention, the D.C. Circuit‘s decision in Natural Resources Defense Council, Inc. v. Securities & Exchange Commission, 606 F.2d 1031 (D.C. Cir. 1979), did not alter that Article III standing analysis. There, petitioners had standing to sue for a response to their petition because the SEC‘s failure to provide “equal employment or environmental information” impaired their ability to vote their shares “in
a financially prudent and ethically sound manner.” Id. at 1042. Here, by contrast, KNRC fails to allege a connection between DOI‘s failure to submit the PECE Rule to Congress and KNRC‘s legally protected interests.
Nor can KNRC‘s theory be shoehorned into the body of precedent where courts have found standing to assert procedural rights available at common law or created by Congress. See Spokeo, 136 S. Ct. at 1549 (collecting cases). As examples of such procedural rights, the Court in Spokeo, Inc. v. Robins cited libel, slander per se, and statutes requiring the public release of information. See id. at 1549-50.
2. KNRC‘s Second Theory: The Pall of a Joint Resolution of Disapproval.
KNRC‘s second theory is that it cannot rely on the PECE Rule until the time for a joint resolution of disapproval expires. This theory fails because Congress can overturn the PECE Rule at any time, regardless of the CRA.6 And it makes no difference to our analysis that Congress has provided for streamlined consideration of a joint resolution through the CRA. KNRC has no legally protected interest in Congress‘s internal lawmaking procedures, so long as Congress complies with the requirements of bicameralism and presentment. See Ctr. for Biological Diversity v. Bernhardt, 946 F.3d 553, 562 (9th Cir. 2019) (rejecting a constitutional challenge to a joint resolution of disapproval because Congress passed and the President signed the resolution);
3. KNRC‘s Third Theory: The Influence of the PECE Rule on DOI‘s Ongoing Listing Analysis.
KNRC‘s third theory is that DOI will soon consider whether and how to apply the PECE Rule to its new listing decision, as contemplated by the stipulated
KNRC‘s asserted injury is too speculative to satisfy standing. As DOI again considers whether to list the lesser prairie-chicken, it is required by the Endangered Species Act to consider “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.”
KNRC is not injured by an analysis that has yet to take place. Likewise, it cannot show a certainly impending injury when the outcome of that analysis is unknown. See Ctr. for Biological Diversity, 946 F.3d at 560 (holding that a plaintiff lacked standing to challenge a hypothetical future rulemaking for failure to comply with the CRA).
4. KNRC‘s Fourth Theory: The Potential for an Unlawful Listing Decision.
KNRC‘s fourth theory is that it will “suffer additional injury if the lesser prairie-chicken is listed without proper consideration of KNRC‘s conservation plan or a decision not to list the species is struck down for considering plans like KNRC‘s.” Appellant Reply at 25. This asserted injury is speculative because it depends on the outcome of a future rulemaking (and subsequent litigation). KNRC may never suffer the asserted injury, so the question is not just when it may sue, but if it will ever be a proper plaintiff to bring this claim. Cf. S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1157 (10th Cir. 2013) (“The question here is not whether [the plaintiff] is a proper party to challenge [the agency‘s] decision, but when it can do so.“).7
KNRC asserts that the shortcomings with respect to standing identified in the complaint are “curable,” and asks that, rather than remand “with leave to amend,” we reach the issue of subject matter jurisdiction “to avoid the needless waste of party and judicial resources.” Apрellant Reply at 19. We agree this is the proper course. See Ohlander v. Larson, 114 F.3d 1531, 1538 (10th Cir. 1997) (declining to remand a case “in the interest of efficiency and judicial economy, and in the interest of providing immediate guidance“). Accordingly, we now consider whether the CRA strips the federal courts of jurisdiction over this matter.
B. Subject Matter Jurisdiction
“We review de novo whether subject-matter jurisdiction is proper.” Navajo Nation v. Dalley, 896 F.3d 1196, 1203 (10th Cir. 2018). There is no dispute that the APA confers subject matter jurisdiction over KNRC‘s claim if
The goal of statutory interpretation is to ascertain the congressional intent and give effect to the legislative will. In conducting this analysis, we first turn to the statute‘s plain language. We give undefined terms their ordinary meanings, considering both the specific context in which the word is used and the broader context of the statute as a whole.
In re Taylor, 899 F.3d 1126, 1129 (10th Cir. 2018) (internal quotation marks omitted).
1. Plain Language
The CRA provides that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.”
An “omission” is a “failure to do something; esp., a neglect of duty.” Omission, Black‘s Law Dictionary (11th ed. 2019). “Under,” when used as a preposition, sometimes means “subject to the authority, control, guidance, or instruction of,” as in “under the terms of the contract.” Under, Merriam-Webster, http://www.merriam-webster.com/dictionary/under (last visited Mar. 25, 2020). So, an “omission under this chapter” refers to the failure to do something that the CRA requires.
DOI‘s duty to submit the PECE Rule to Congress arises under
KNRC resists this conclusion by citing Kucana v. Holder, 558 U.S. 233 (2010). In that case, the Supreme Court described the word “under” as “chameleon” because “it ‘has many dictionary definitions and must draw its meaning from its context.‘” Id. at 245 (quoting Ardestani v. I.N.S., 502 U.S. 129, 135 (1991)). There, the Court was interpreting
KNRC argues there is no difference between the phrase “under this chapter” in the CRA and the phrase “under this subchapter” as interpreted in Kucana. But the context in which the two phrases appear is very different. In
KNRC also argues it is ambiguous whether
The dissent embraces a different reading. In the dissent‘s view,
2. Canons of Statutory Interpretation
Because we hold the plain language of
First, we consider the canon relating to surplusage. KNRC argues our interpretation of
KNRC also argues our interpretation renders the CRA‘s severability clause superfluous. To the contrary, the severability clause would apply if a plaintiff with standing claimed that a portion of the CRA violated the separation of powers doctrine, for example, because such a claim would not be covered by
Next, KNRC invokes the CRA‘s purpose, which is purportedly to “restrain[] agency overreach.” Appellant Br. at 36. But that broad statement of purpose tells us nothing about whether Congress intended district courts to review agency compliance with the CRA‘s reporting requirements. See Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985) (instructing courts to assume “the ordinary meaning . . . accurately expresses the legislative purpose“).
The dissent analogizes Congress‘s enactment of
3. Legislative History
Once we exhaust the traditional tools of statutory interpretation, we may (cautiously) turn to the legislative history. See Ausmus v. Perdue, 908 F.3d 1248, 1254 (10th Cir. 2018). The only piece of evidence that speaks directly to
KNRC points to the Supreme Court‘s observation in United States v. Woods, 571 U.S. 31, 48 (2013), that a commentary on a recently passed law, “like a law review article, may be relevant to the extent it is persuasive.” Because the Senators’ floor statement contradicts the plain language of
4. Presumption of Judicial Review
Throughout its brief, KNRC invokes the presumption in favor of judicial review of administrative agency action.
KNRC‘s reliance on the presumption is therefore precluded: Because
5. Other Relevant Precedents
Our interpretation is consistent with a footnote in our decision in Via Christi, as well as decisions issued by the Ninth and D.C. Circuits. See Via Christi, 509 F.3d at 1271 n.11; Ctr. for Biological Diversity, 946 F.3d at 563; Montanans For Multiple Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009). And, contrary to KNRC‘s suggestion, the decisions of other circuits are not to the contrary. In Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368, 1374 (Fed. Cir. 2002), the Federal Circuit interpreted the CRA to determine when a regulation had taken effect without mentioning
III. CONCLUSION
For the forgoing reasons, KNRC‘s complaint failed to plausibly allege Article III standing. In the interest of judicial economy, we also interpret
KNCR v. US Department of Interior, No. 19-3108
LUCERO, J., dissenting:
This much is undisputed: the Department of the Interior (“DOI“) has violated the Congressional Review Act (“CRA“),
I
As the majority recognizes, a plaintiff does not have constitutional standing to sue unless it can establish it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). I would conclude that KNRC has satisfied all three requirements.
A
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The majority considers only whether KNRC‘s alleged injury is concrete.
In its complaint, KNRC alleges it has developed a conservation plan (the “Plan“) for the lesser prairie chicken in Kansas, where the majority of the species’ population is located. It further alleges that listing a species as threatened or endangered under the Endangered Species Act (“ESA“) “entail[s] severe regulatory restrictions disruptive to . . . affected states’ economies.” Thus, listing the prairie chicken would have a substantial impact “on the ability of Kansas and its counties to effectively manage natural resources.” Accordingly, KNRC developed the Plan in order to obviate the need for the species to be listed. This is precisely the sort of action envisioned and encouraged by the rule at issue in this case—the Policy for Evaluation of Conservation Efforts When Making Listing Decisions, 68 Fed. Reg. 15,100 (Mar. 28, 2003) (the “PECE Rule” or the “Rule“).
The Plan “calls for counties to develop and implement policies” beneficial to the conservation of the lesser prairie chicken. KNRC alleges that to be effective, the Plan requires “positive engagement” on the part of local governments and private landowners. Such engagement includes taking action to “control invasive species,” “promote sustainable grazing,” “better mark fences to prevent entanglement or injury,” and “encourage habitat restoration.” KNRC alleges that these actions involve the commitment of “substantial resources.”
Two criteria are set forth in the PECE Rule for determining whether a plan like KNRC‘s—a formalized conservation effort yet to be implemented or to show its effectiveness—obviates the need for a species to be listed.
1
This asserted injury is concrete. It “is one of process, not result.” WildEarth Guardians v. U.S. E.P.A., 759 F.3d 1196, 1205 (10th Cir. 2014). We have recognized that “[f]or a procedural injury, the requirements for Article III standing are somewhat relaxed, or at least conceptually expanded.” Id. (citing Lujan, 504 U.S. at 572 n.7). A plaintiff alleging a procedural injury “need not establish with certainty that adherence to the procedures would necessarily change the agency‘s ultimate decision.” Id. (quoting Utah v. Babbitt, 137 F.3d 1193, 1216 n.37 (10th Cir. 1998)). Rather, the plaintiff need only show “that compliance with the procedural requirements could have better protected its concrete interests.” Id.
In similar contexts, we have held that procedural injuries comparable to the one alleged by KNRC are concrete for purposes of Article III standing. “We have frequently found standing based on a procedural injury in cases in which environmental groups have alleged that an agency failed to follow the required procedures in taking an action that negatively impacted members’ concrete interest in protecting and enjoying the affected land.” New Mexico v. Dep‘t of Interior, 854 F.3d 1207, 1215-16 (10th Cir. 2017) (collecting cases). Specifically, we have recognized that the creation of an increased risk of environmental harm flowing from an agency‘s failure to follow statutory procedures is a concrete injury. See id. at 1215; Sierra Club v. U.S. Dep‘t of Energy, 287 F.3d 1256, 1265 (10th Cir. 2002) (“To establish an injury-in-fact from failure to perform a [National Environmental Policy Act (“NEPA“)] analysis, a litigant must show: 1) that in making its decision without following the NEPA‘s procedures, the agency created an increased risk of actual, threatened or imminent environmental harm; and 2) that this increased risk of environmental harm injures its concrete interest.” (citing Comm. to Save Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir. 1996))).
We have also recognized outside the environmental-law context that procedural injuries often arise when agencies violate “statutorily mandated procedures . . . designed to protect plaintiffs’ interests.” New Mexico, 854 F.3d at 1216. In particular, we have held that the loss of an opportunity to sway administrative decisionmakers to rule in favor of plaintiffs is a concrete injury in fact. See Rector v. City & Cnty. of Denver, 348 F.3d 935, 944 (10th Cir. 2003) (“[T]he denial of the opportunity to sway school offiсials towards [plaintiffs‘] cause constituted an injury in fact.” (citing Carey v. Piphus, 435 U.S. 247, 261 n.16 (1978))).1
Accordingly, I would conclude that KNRC has alleged a concrete injury in this case. The majority disagrees. Much of its error springs from the same root: the majority never identifies KNRC‘s legally protected interest. As such, its analysis of the concreteness of KNRC‘s alleged injury is unmoored from the interest allegedly harmed.4
In the majority‘s view, KNRC has not alleged a current, tangible harm because it has not specifically alleged that counties or property owners have refused to participate in KNRC‘s conservation plan; rather, KNRC alleges that its 32 member counties have “adopted” the Plan. (See Maj. Op. 13.) But the majority appears to confuse the adoption of KNRC‘s Plan with its implementation. The PECE Rule concerns “formalized conservation efforts that have yet to be implemented or to show effectiveness.” 68 Fed. Reg. at 15,100 (emphasis added). (See Maj. Op. 6.) The mere fact that KNRC‘s member counties have adopted the Plan is no guarantee that the Plan is certain to be implemented or effective—the two criteria for evaluating whether the Plan obviates the need for a federal listing. See
The majority also faults KNRC for “fail[ing] to allege that a county or property owner has . . . expressed concerns over the Rule‘s validity” or raised “doubts about participating in KNRC‘s conservation plan.” (Maj. Op. 13-14.) But such specific allegations are unnecessary for standing purposes at this stage of litigation. “In essence[,] the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” United States v. Colo. Sup. Ct., 87 F.3d 1161, 1164 (10th Cir. 1996) (quotation omitted). In procedural-injury challenges to agency action, the plaintiff needs to allege only that the agency‘s “compliance with . . . procedural requirements could have better protected its concrete interests.” New Mexico, 854 F.3d at 1215 (quotation omitted). Further, “[g]eneral factual allegations of injury resulting from the defendant‘s conduct may suffice’ to support the claim.” COPE, 821 F.3d at 1220-21 (quoting Lujan, 504 U.S. at 561). When “reviewing questions of standing under a motion to dismiss,” we must “presume[] general allegations embrace those specific facts necessary to support the claim.” Comm. to Save the Rio Hondo, 102 F.3d at 449. Thus, the plaintiff‘s burden to establish standing at the pleading stage is “lightened considerably.” Petrella v. Brownback, 697 F.3d 1285, 1292 (10th Cir. 2012).
In other procedural injury cases, we have not required the level of specificity required by the majority. In Southern Utah Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227 (10th Cir. 2010), we concluded that the plaintiff organization had alleged a concrete injury where the complaint stated its members used land fоr various purposes and claimed that proposed mining operations would impair many of these uses. Id. at 1234. We did not require the plaintiff to allege specific “doubts” raised by individual members about their continued ability to use the
Similarly, in City of Albuquerque v. United States Department of Interior, 379 F.3d 901 (10th Cir. 2004), we addressed an allegation in the City‘s complaint “that by locating its offices outside the central business area, Interior was weakening the City of Albuquerque and discouraging development and redevelopment of the central business area.” Id. at 912 (quotation and alteration omitted). From this allegation, we drew the “natural inference . . . that available property exists within the City of Albuquerque‘s central business area,” such that the defendant‘s action could injure the City. Id. at 913. We did not require the City to specify how it was weakened or how the defendant‘s action discouraged development and redevelopment. Instead, “[b]ecause the case [wa]s before us with only a complaint,” we concluded that “we must presume that the allegations in the complaint are correct and the City will be able to prove specific facts to support the claim.” Id.
Our inquiry in this case is the same. We need not assess at the pleading stage whether KNRC has proven that implementation of the Plan has been hindered by doubts about the validity of the PECE Rule. Instead, we need only satisfy ourselves that KNRC will be able to prove relevant facts if this case proceeds, keeping in mind that KNRC‘s burden at this stage is “lightened considerably.” Petrella, 697 F.3d at 1292. The specific facts sought by the majority are required to establish standing at the summary judgment stage but not at the pleаding stage. See Comm. to Save the Rio Hondo, 102 F.3d at 450.
3
Apart from its concern about the detail of KNRC‘s allegations, the majority concludes that the harms KNRC alleges are speculative. (See Maj. Op. 13, 17-18.) The majority characterizes KNRC‘s injury as contingent on the outcome of future events and asserts, without citation, that “KNRC is not injured by an analysis that has yet to take place.” (Id. at 17.) But as I have explained, KNRC‘s injury “is one of process, not result.” WildEarth Guardians, 759 F.3d at 1205.5 The increased risk that KNRC will be
unable to obviate the need for listing the lesser prairie chicken and
Additionally, the majority rejects KNRC‘s contention that DOI may “give short shrift” to its conservation plan, stating that the ESA, not the PECE Rule, requires DOI to consider the Plan. (Maj. Op. 17.) The majority misunderstands KNRC‘s argument. Nowhere does KNRC complain that DOI will not consider the Plan at all. Rather, it argues that it will be procedurally injured if DOI fails to accord the Plan “proper consideration.” The majority observes that “[t]he PECE Rule explains how DOI plans to meet that statutory requirement but does not foreordain any particular outcome.” (Maj. Op. 17.) Be that as it may, the PECE Rule contains specific criteria for evaluating whether a conservation plan like KNRC‘s obviates the need for a federal listing. See 68 Fed. Reg. at 15,101, 15,114-15. KNRC alleges it has relied on these criteria, as it must, in developing a conservation plan sufficient to protect its concrete legal interests. The uncertainty about the validity of these criteria threatens KNRC‘s ability to protect its interest regardless of the particular outcome. See New Mexico, 854 F.3d at 1215 (in a procedural injury challenge, plaintiff need merely allege that agency “compliance with . . . procedural requirements could have better proteсted its concrete interests.” (quotation omitted)).
For these reasons, I would conclude that KNRC has alleged a concrete procedural injury in this case.
B
Although the majority does not address the remaining elements of standing, I briefly address them here. To establish an injury in fact, KNRC‘s injury must be “particularized.” Lujan, 504 U.S. at 560. That is, KNRC must allege it has been injured “in a personal and individual way.” Spokeo, 136 S. Ct. at 1548.
KNRC has satisfied this requirement. It alleges it “is an organization of county governments in western Kansas that promotes local government participation in federal and state policy on conservation and natural resource issues.” It alleges it developed its conservation plan for the lesser prairie chicken hoping to obviate the need for the species to be listed as threatened under the ESA. And it did so because a federal listing “entail[s] severe regulatory restrictions” that would be “disruptive” to the economies of its 32 member counties and would impair the counties’ ability to “effectively manage natural resources.” This “personal stake” in the outcome of
With respect to the second requirement of Article III standing, KNRC must establish that the injury of which it complains is “fairly traceable” to the challenged conduct. Lujan, 504 U.S. at 560 (alteration omitted). It easily satisfies this requirement. KNRC‘s concrete injury—the undermining of its ability to obviate the need for listing the lesser prairie chicken—results from uncertainty about the validity of the PECE Rule, which itself arises from DOI‘s failure to submit the Rule to Congress for approval as required by the CRA. DOI‘s refusal to comply with the statute has thus caused KNRC‘s injury. See id. (“[T]here must be a causal connection between the injury and the conduct comрlained of.“).
Finally, the injury to KNRC wrought by DOI‘s noncompliance with the CRA is redressable by this court. See Lujan, 504 U.S. at 561. Crucially, KNRC need not show that DOI‘s compliance with the statute would affect its ultimate determination whether to list the lesser prairie chicken. See id. at 572 n.7; Renal Physicians Ass‘n v. U.S. Dep‘t of Health & Hum. Servs., 489 F.3d 1267, 1278 (D.C. Cir. 2007) (with respect to redressability, “in a procedural-injury case, a plaintiff need not show that better procedures would have led to a different substantive result“). Rather, it is enough that were the court to declare the PECE Rule invalid and direct DOI to submit it to Congress, it would eliminate the uncertainty regarding the validity of the Rule and trigger the statutory timeline for the Rule‘s approval. Armed with the knowledge that the Rule is invalid, KNRC could proceed to take necessary action to implement the Plan with certainty. Cf. Skull Valley Band of Goshute Indians, 376 F.3d at 1234 (observing that invalidating a challenged ordinance allowed a company to “continue with the state agency‘s permitting process, knowing that obtaining a state agency permit will not have been in vain” (alterations omitted)). Accordingly, KNRC‘s injury is redressable by the declaratory relief it seeks.
In sum, I would conclude that KNRC has standing to challenge DOI‘s failure to submit the PECE Rule to Congress in violation of the CRA.
II
Turning to subject matter jurisdiction, I would hold that
A
“Congress rarely intends to prevent courts from enforcing its directives to federal agencies.” Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 486 (2015); see also Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986).
Mich. Acad. of Fam. Physicians, 476 U.S. 667, 671 (1986) (“The statutes of Congress are not merely advisory when they relate to administrative agencies, any more than in other cases.” (quotation omitted)).
It is the agency‘s “heavy burden . . . to show that Congress prohibited all judicial review of the agency‘s compliance with a legislative mandate.” Mach Mining, 575 U.S. at 486 (quotations and alteration omitted). The presumption of judicial review of agency action “may be rebutted only if the relevant statute precludes review . . . or if the action is committed to agency discretion by law.” Weyerhaeuser, 139 S. Ct. at 370 (emphasis added) (quotation omitted) (citing
KNRC brings its claim under the Administrative Procedure Act (“APA“). It alleges that DOI‘s failure to submit the PECE Rule to Congress is “agency action unlawfully withheld or unreasonably delayed.”
As an initial matter, DOI contends that the presumption of reviewability is an extra-textual canon of statutory interpretation we may not appropriately consider. It argues that no canon can be considered unless the text of a statute is “reasonably susceptible of divergent interpretation.” Kucana, 558 U.S. at 251 (quotation omitted). According to DOI, because the text of the CRA‘s jurisdiction-stripping provision is unambiguous, the presumption that we review agency action is inapplicable.
But DOI conflates whether the presumption is applicable with whether it is rebutted. As explained, the presumption applies when a statute purports to limit or preclude judicial review. See Cuozzo, 136 S. Ct. at 2140. And it “is just that—a presumption.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). It applies at the outset of our jurisdictional inquiry and forms the backdrop against which we consider the statutory text. See Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 623-24 (D.C. Cir. 2020) (collecting cases). Against this backdrop, we consider whether it is overcome by the statutory text, legislative history, or inferences of congressional intent drawn from the broader statutory scheme. Block, 467 U.S. at 349; Cuozzo, 136 S. Ct. at 2140. In other words, though unambiguous statutory language factors into whether the presumption has been rebutted, it is not a predicate condition for applying the presumption.
Kucana—the case on which DOI relies—is not to the contrary. See Make the Rd., 962 F.3d at 623-24. In that case, the Court interpreted the scope of “the proscription of judicial review stated in [8 U.S.C.] § 1252(a)(2)(B).” 558 U.S. at 236. Considering several sources of information, including the statute‘s text and the presumption of judicial review, it concluded that
Any lingering doubt about the proper interpretation of
8 U.S.C. § 1252(a)(2)(B)(ii) would be dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action. When a statute is “reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.”
Id. at 251 (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)).
Lamagno, in turn, applied the presumption of judicial review before analyzing whether the text of a jurisdiction-stripping provision was ambiguous. 515 U.S. at 430 (“We return now, in more detail, to the statutory language to determine whether it overcomes the presumption favoring judicial review.“). Only after applying the presumption of judicial review did the Court conclude that the statutory text admitted of multiple plausible interpretations. Id. at 434. Faced with these competing interpretations, the Court “adopt[ed] the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review and that mechanical judgments are not the kind federal courts are set up to render.” Id.8
Lamagno thus clarifies DOI‘s misinterpretation of Kucana. Nowhere in either case did the Court impose a strict text-before-presumption order of operations. Rather, the Court in Lamagno first determined that the presumption of judicial review applied, then determined that the best interpretation of ambiguous statutory text was the one aligning with courts’ historic practice of reviewing agency action. 515 U.S. at 430; see also Bowen, 476 U.S. at 672-73. The Kucana Court similarly cited Lamagno to support its conclusion that under the presumption, the “proper interpretation” of
Accordingly, the presumption of judicial review of agency action applies to our determination as to whether
B
Throughout its analysis, the majority fails to apply this presumption. Not once does it acknowledge the government‘s “heavy burden” to show that Congress intended to “prevent courts from enforcing its directive[]” that agencies submit proposed rules for approval. Mach Mining, 575 U.S. at 486. Instead of citing Block, Cuozzo, Mach Mining, or any similar case dealing with a statute purporting to strip federal courts of jurisdiction to consider claims arising under the APA, the majority cites In re Taylor, 899 F.3d 1126 (10th Cir. 2018), a bankruptcy case involving neither agency action nor a jurisdiction-stripping provision. That case‘s genеral recognition that we begin statutory interpretation with the statute‘s plain language, id. at 1129, does not displace the foundational presumption that Article III courts review agency action, even if the plain text of a statute purports to strip us of jurisdiction, see Cuozzo, 136 S. Ct. at 2140; Guerrero-Lasprilla, 140 S. Ct. at 1068; see also Make the Rd., 962 F.3d at 624 (presumption of judicial review and tenet that courts begin with statutory text apply in tandem).
Block is the better guide for interpreting a jurisdiction-stripping provision. 467 U.S. at 346; see also Cuozzo, 136 S. Ct at 2140 (applying the Block standard); Mach Mining, 575 U.S. at 486 (same); Kan. ex rel. Schmidt v. Zinke, 861 F.3d 1024, 1028-29 (10th Cir. 2017) (same). Under Block, “[w]hether and to what extent [the CRA] precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” 467 U.S. at 345.10 When considering this evidence, we
I
The CRA provides, “No determination, finding, action, or omission under this chapter shall be subject to judicial review.”
I cannot accept the majority‘s broad interpretation. Section 805 precludes review of a “determination, finding, action, or omission under this chapter,” but agencies like DOI do not make “findings” or “determinations” under the CRA. We frequently “rely on the principle[] of noscitur a sociis—a word is known by the company it keeps—to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 n.8 (10th Cir. 2018) (quoting Yates v. United States, 574 U.S. 528, 543 (2015) (quotation omitted)). Applying that principle, wе have deemed it “anomalous” to interpret words in the same list to cover varying sets of actors. See Potts v. Ctr. for Excellence in Higher Educ., Inc., 908 F.3d 610, 614 (10th Cir. 2018) (affirming district court‘s use of noscitur a sociis to reject interpretation that two of six listed acts covered former employees whereas the rest did not). Instead, we have recognized that when several words “are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.” Id. (quotation omitted). We favor interpretations ascribing to all items in a list the attribute they share. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (quoting Beecham v. United States, 511 U.S. 368, 371 (1994)).
In light of this familiar principle, another plausible reading of
Further, when placed in context, the ambiguity of the text of
Congress has addressed this problem before. When it enacted the Regulatory Flexibility Act (“RFA“)—another statute designed to increasе agency accountability— Congress expressly precluded judicial review of agency action. See RFA, Pub. L. No. 96-354, § 3(a), 94 Stat. 1164, 1169-70 (1980) (amended 1996) (excluding from judicial review (1) “any determination by an agency concerning the applicability of any provision of this chapter to any action of the agency” and (2) “the compliance or noncompliance of the agency with the provisions of this chapter“). But in 1996, in the same omnibus legislation enacting the CRA, Congress revoked the RFA‘s preclusion of judicial review because it led agencies to ignore the RFA‘s requirements. See Contract with America Advancement Act of 1996, Pub. L. 104-121, tit. II, § 242, 110 Stat. 847, 865 (1996) (authorizing judicial review of agency action); 142 Cong. Rec. H3016 (daily ed. Mar. 28, 1996) (statement of Rep. Ewing) (“It is because the agencies know their decision to ignore the RFA cannot be challenged that they almost always do ignore the act.“); 142 Cong. Rec. H3005 (statement of Rep. McIntosh) (“[J]udicial review . . . will serve as a needed check on agency behavior and help enforce the mandate of the [RFA].“)
KNRC argues that it would be incongruous for Congress, in the same piece of legislation, to provide for judicial review of agency action in the RFA and strip courts of such review in the CRA. We presume that Congress legislates in light of the presumption of judicial review. See Kucana, 558 U.S. at 252. We also presume that Congress legislates in light of existing law. See id. (“[A]bsent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction.” (quotation omitted)). We therefore must interpret the CRA to be harmonious with the RFA. DOI contends there is no incongruity between the RFA and the CRA because the two statutes use different language and “have different meanings,” and the majority adopts this argument. (Maj. Op. 23-24.) But neither DOI nor the majority elaborate what those meanings might be, how they are different, or why those differences are meaningful. Further, DOI asserts thаt any incongruity between the two statutes does not rise to the level of an irreconcilable “statutory conflict.” But DOI fails to explain this assertion. Without application to the CRA or the facts of this case, it offers only the general observation that “[r]espect for Congress as drafter counsels against too easily finding irreconcilable conflicts in its work.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018).
At the very least, against this backdrop, the text of
2
For the foregoing reasons, the plain language of
With respect to the legislative history, KNRC relies on a joint statement by the CRA‘s sponsors that specifically addresses the scope of
This legislative history is powerful evidence that Congress did not intend
The majority similarly discounts the weight of the joint statement, reasoning that because it was recorded after the CRA was passed, it is “an extremely hazardоus basis for inferring the meaning of a congressional enactment.”15 (Maj. Op. 24 (quoting Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980)).) But the majority ignores the rationale on which its cited footnote is based. The Court in GTE Sylvania stated that post-enactment legislative history “does not bear strong indicia of reliability . . . because as time passes memories fade and a person‘s perception of his earlier intention may change.” 447 U.S. at 118 n.13.
This concern is substantially mitigated in this case. The joint statement was recorded a mere twenty days after the CRA was enacted, during the same session. Cf. Jones v. United States, 526 U.S. 227, 238 (1999) (post-enactment statements are “a hazardous basis for inferring the intent of an earlier Congress” (emphasis added) (quotations omitted)). Moreover, as the majority observes, Congress anticipated the particular post-enactment statement in question: it was informed that because there would not likely be a conference report or floor manager‘s statement prior to the CRA‘s passage, the bill‘s co-sponsors intended to insert the equivalent of a floor manager‘s statement in the congressional record at a later time. See 142 Cong. Rec. H3005; (Maj. Op. 4.) These facts specific to the passage of the CRA undercut the general proposition that post-enactment statements are “hazardous” tools of interpretation “because as time passes memories fade.” GTE Sylvania, 447 U.S. at 118 n.13; Jones, 526 U.S. at 238.
Further, as the majority also observes, the House Judiciary Committee published a report in 2006 stating that the joint statement was “the most authoritative contemporary understanding of the provisions of the [CRA].” 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); (Maj. Op. 5.) Although the hazards of relying on post-enactment legislative
I reiterate that it is DOI‘s heavy burden to show that our jurisdiction to review KNRC‘s claim has been stripped. DOI has pointed to no legislative history supporting its interpretation of
3
Turning to the CRA‘s purpose, the statute‘s sponsors explained that it is designed to “reclaim[] for Congress some of its policymaking authority, without at the same time requiring Congress to become a super regulatory agency.” 142 Cong. Rec. S3683. Thus, the CRA‘s rule-submission requirement in particular is meant to “give[] the public the opportunity to call the attention of politically accountable, elected officials to concerns about new agency rules.” Id. In doing so, the CRA seeks to restore the “delicate balance between the appropriate roles of the Congress in enacting laws, and the Executive Branch in implementing those laws.” Id. at S3683.
The majority contends that the statute‘s purpose “tells us nothing about whether Congress intended district courts to review agency compliance with the CRA‘s reporting requirements.” (Maj. Op. 23.) But as explained above, Congress specifically contemplated such review. See 142 Cong. Rec. S3686. Further, as the Supreme Court has repeatedly recognized, agencies are especially likely to commit “legal lapses and violations” when doing so carries no consequence. Weyerhaeuser, 139 S. Ct. at 370 (quoting Mach Mining, 575 U.S. at 489). This observation appears to have been borne out with respect to the CRA—agencies have failed to submit hundreds of rules for approval, despite the statute‘s clear mandate. See Phillip A. Wallach & Nicholas W. Zeppos, Brookings Inst. Report, How powerful is the Congressional Review Act? (Apr. 4, 2017); Curtis W. Copeland, Cong. Rsch. Serv., Congressional Review Act: Rules Not Submitted to GAO and Congress (Dec. 29, 2009). Absent judicial review, there is no mechanism by which the CRA can be enforced.16 Because the impetus for passing the CRA was to restore congressional oversight over agency rulemaking, it seems especially unlikely that Congress intended that the rule-submission requirement—which triggers the CRA‘s review procedures—be excluded from judicial review. See Cole, at 68; Larkin, at 230.
In sum, it is doubtful that Congress hamstrung its own efforts to restore democratic accountability to agency rulemaking when enacting the CRA. See In re Taylor, 899 F.3d at 1129 (“The goal of statutory interpretation is to ascertain the congressional intent and give effect to the legislative will.” (quotation omitted)). Accordingly, the purpose of the CRA further supports interpreting
4
Finally, regarding “the nature of the administrative action involved,” Block, 467 U.S. at 345, KNRC argues that DOI‘s failure to submit the PECE Rule for approval is the failure to take the sort of discrete and mandatory action constituting agency action unlawfully denied or unreasonably delayed, see Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004);
C
In light of the foregoing, I would conclude that DOI has failed to rebut the strong presumption that we have jurisdiction to review its refusal to submit the PECE Rule to Congress for approval. As stated, whether a statute precludes or limits our jurisdiction “is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block, 467 U.S. at 345. The text of
On the other side of the ledger, DOI largely fails to make an affirmative case that Congress intended to strip courts of jurisdiction to review an agency‘s failure to submit a rule for approval. It relies almost exclusively on the text of
[Section 805] denies courts the power to void rules on the basis of agency noncompliance with the [CRA]. The language of § 805 is unequivocal and precludes review of th[e] claim. . . .
Id. at 229. Our sibling circuit failed to apply the strong presumption of judicial review of agency action; cite any case law for its analysis; or consider any of the evidence identified in Block, Mach Mining, Cuozzo, and similar on-point cases. Further, it determines that the text of
Additionally, the majority asserts that its interpretation of
Via Christi did not involve a CRA claim or purport to address one. Instead, it involved whether the Secretary of Health and Human Services lawfully denied a hospital‘s request for reimbursement for losses due to the consolidation of several hospitals. Id. at 1261. The hospital plaintiff principally argued that the Secretary‘s decision was inconsistent with the text of a Health and Human Services regulation regarding Medicare, and we agreed. Id. at 1272-73. It was only in its opening brief that the hospital argued in the alternative that a 2000 “program memorandum” was a “rule” covered by the CRA but not submitted to Congress. See Appellant‘s Opening Brief, Via Christi, 509 F.3d 1259. “Questions which merely lurk in the record are not resolved, and no resolution of them may be inferred.” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) (quotation omitted).
Further, a statement is dicta and not binding on a future court if it is “unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome.” Exby-Stolley v. Bd. of Cty. Comm‘rs, 906 F.3d 900, 912 (10th Cir. 2018), reh‘g en banc granted sub nom. Exby-Stolley v. Bd. of Cty. Comm‘rs, 910 F.3d 1129 (10th Cir. 2018) (quotation omitted). The Via Christi court‘s statement regarding the CRA was unnecessary to the outcome of the case. Further, as explained above, full consideration of whether
III
One issue remains: DOI argues that the statute of limitations has expired. Under
As explained in Part I, supra, KNRC‘s alleged injury in this case is the undermining of its ability to obviate the need for listing the lesser prairie chicken as threatened. KNRC alleges the uncertain validity of the PECE Rule weakens its ability to secure the “positive engagement” of local governments and private landowners necessary for its conservation plan to satisfy the Rule‘s two criteria. Thus, contrary to DOI‘s suggestion, KNRC‘s claim did not accrue when it received notice that the PECE Rule was promulgated because KNRC was not yet injured at that time. See Carnes v. United States, 186 F.2d 648, 650 (10th Cir. 1951) (claim accrues when party suffers injury); see also Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1245-46 (10th Cir. 2012) (“[T]he limitations provision in
Rather, KNRC‘s claim first accrued on December 11, 2012, when DOI proposed listing the lesser prairie chicken as a threatened species under the ESA. See Listing the Lesser Prairie-Chicken as a Threatened Species, 77 Fed. Reg. 73,828 (Dec. 11, 2012); (Maj. Op. 7.) KNRC acknowledges that this 2012 proposal spurred its decision to develop the Plan. Its asserted injuries would have arisen no earlier than that time. Because the limitations period for KNRC to bring its claim runs for six years from accrual, KNRC had until Deсember 11, 2018, to bring this lawsuit. KNRC filed its complaint on April 10, 2018. Accordingly, its suit was timely.
IV
For the foregoing reasons, I would hold that KNRC has standing to challenge DOI‘s failure to submit the PECE Rule to Congress; that the CRA does not strip this court of jurisdiction to review KNRC‘s claim; and that KNRC timely brought suit. Accordingly, I would reverse the judgment of the district court and remand this case for further proceedings. I respectfully dissent.
Notes
The dissent separately argues that KNRC needs “an opportunity to sway administrative decisionmakers to rule” in its favor by not listing the lesser prairie-chicken. Dissent at 5. But the dissent‘s only reason that KNRC‘s potential, future presentation to DOI is currently under threat is uncertainty, which we have already rejected as inadequately pleaded. Moreover, the dissent‘s support for its “sway” theory is Carey v. Piphus, 435 U.S. 247 (1978), a case about school disciplinary hearings, not the APA. See also Rector v. City & Cty. of Denver, 348 F.3d 935, 944 (10th Cir. 2003) (discussing Carey).
In its reply brief, KNRC discusses provisions in the Administrative Procedure Act requiring agencies to timely act on public petitions to issue new rules. See