ORDER RE MOTIONS TO DISMISS

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE.

Plaintiff Center for Biological Diversity ("CBD") challenges the constitutionality of the Congressional Review Act ("CRA"), pursuant to which Congress recently passed legislation disapproving a Fish and Wildlife Service rule that prohibited certain hunting and trapping practices on National Wildlife Refuges in Alaska. CBD's challenge rests primarily on allegations that the CRA and the congressional oversight of regulations that it allows for violate the separation of powers doctrine.

Before the Court are the following four motions: (1) Defendants Ryan Zinke and Department of the Interior's Renewed Motion to Dismiss at Docket 1071; (2) Defendant-Intervenors Safari Club International, et al.'s Motion to Dismiss at Docket 110; (3) Defendant-Intervenors Pacific Legal Foundation, et al.'s Renewed Motion to Dismiss at Docket 1132; and (4) Defendant-Intervenor State of Alaska's Motion to Dismiss at Docket 116. The motions have been extensively briefed.3 Oral argument was not requested and was not necessary to the Court's decision.

BACKGROUND

On August 5, 2016, the U.S. Fish & Wildlife Service ("FWS") finalized a rule entitled "Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska," also known as the "Refuges Rule."4 The Refuges Rule restricted the use of predator control methods and prohibited certain hunting and trapping methods on National Wildlife Refuges in Alaska.5 FWS is a bureau within the Department of the Interior ("DOI" or "Interior").6

The CRA allows for congressional disapproval of rules promulgated by administrative agencies.7 Acting pursuant to the CRA, 5 U.S.C. § 801 et seq., on February 7, 2017, the House of Representatives introduced H.J. Res. 69 (the "Joint Resolution") to disapprove the Refuges Rule. On February 16, 2017, the Joint Resolution passed the House by a vote of 225-193. On March 21, 2017, the Joint Resolution passed the Senate by a vote of 52-47. The Joint Resolution provides:

On April 3, 2017, President Trump signed the Joint Resolution into law as Public Law 115-20.9 On November 9, 2017, FWS formally removed the text of the Refuges Rule from the Federal Register.10 Pursuant to the CRA, Public Law 115-20 prevents DOI from "reissuing" the Refuges Rule "in substantially the same form" or issuing "a new rule that is the substantially the same, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."11

Plaintiff CBD is a non-profit 501(c)(3) organization dedicated to conservation issues with more than 48,500 members across the United States.12 On April 20, 2017, CBD initiated the instant case by filing suit in this Court.13 On September 1, 2017, CBD filed its Amended Complaint, which challenges the constitutionality of the Joint Resolution and the Congressional Review Act and makes a statutory claim under the CRA.

CBD makes two primary constitutional claims in its Amended Complaint: (1) the CRA and Public Law 115-20 both violate the Article I requirements of Bicameralism and Presentment,14 and (2) the CRA and Public Law 115-20 both violate Article II's "Take Care" Clause.15 CBD also contends that Public Law 115-20 represents an ultra vires exercise of congressional authority because the CRA exempts regulations related to hunting and fishing from certain aspects of the law.

CBD names Ryan Zinke, in his official capacity as Secretary of the United States Department of the Interior, and the Department of the Interior as Defendants (collectively, "Federal Defendants").16 Pacific Legal Foundation, Alaska Outdoor Council, Big Game Forever, Kurt Whitehead, and Joe Letarte (collectively, "PLF") were permitted to intervene in their capacities as non-profit organizations, hunters, and business owners, respectively.17 Safari Club International and the National Rifle Association of America (collectively, "Safari Club") were permitted to intervene in their capacities as non-profit organizations asserting interests in hunting and wildlife.18 The State of Alaska ("Alaska") was permitted to intervene in order to assert its interests in and authority over the management of federal lands in Alaska.19

On October 6, 2017, Federal Defendants filed their Renewed Motion to Dismiss.20 Federal Defendants' motion asserts that CBD has failed to establish subject matter jurisdiction or state a claim upon which relief can be granted.21 More specifically, Federal Defendants assert that the Congressional Review Act and Public Law 115-20 are constitutional, CBD's constitutional challenge to the Reenactment Provision22 is not ripe, and CBD's statutory claim is precluded by the CRA's judicial review provision.23

Defendant-Intervenors each filed separate motions to dismiss in which they incorporated the arguments of Federal Defendants' motion to dismiss and added additional grounds.24 Safari Club's motion expresses support for Federal Defendants' motion, asserts that CBD lacks standing, and maintains that case law supports upholding the CRA.25 PLF's motion incorporates Federal Defendants' motion and emphasizes the argument that the Court lacks subject matter jurisdiction over CBD's statutory claim because the CRA prohibits judicial review.26 Alaska's motion incorporates Federal Defendants' motion, with one exception, and discusses Alaska's land management authority.27

LEGAL STANDARD

I. Dismissal Under Rule 12(b)(1)

A "lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)."28 "A Rule 12(b)(1) jurisdictional attack may be facial or factual."29 In this case, Federal Defendants assert a facial Challenge to one aspect of CBD's claim.30 "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction."31

The Court "resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction."32 However, "[t]his is not to say that plaintiff may rely on a bare legal conclusion to assert injury-in-fact[.]"33 "[T]he party invoking federal jurisdiction bears the burden of establishing its existence."34

II. Dismissal Under Rule 12(b)(6)

When reviewing a Rule 12(b)(6) motion, a court considers only the pleadings and documents incorporated into the pleadings by reference, as well as matters on which a court may take judicial notice.35 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"36 A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."37 Thus, there must be "more than a sheer possibility that a defendant has acted unlawfully."38 A court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party."39

III. Jurisdiction

CBD asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331, because it raises a claim that arises under federal law, and pursuant to 28 U.S.C. § 1346, as a suit against the United States. CBD also maintains that this Court has jurisdiction to review agency action pursuant the Constitution and the Administrative Procedure Act, 5 U.S.C. §§ 701-70.40

DISCUSSION

A. The Congressional Review Act

1. Overview

The CRA is a 1996 law which allows for congressional review of executive agency action. The CRA provides that "[b]efore 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" that includes "a copy of the rule," "a concise general statement relating to the rule, and "the proposed effective date of the rule."41 Congress then has a set period of time during which it can enact a joint resolution disapproving the rule.42 5 U.S.C. § 801(d)(1) provides:

If a joint resolution is passed by both houses of Congress within the applicable time period and according to the proper procedures, the joint resolution becomes law once signed by the President.44 Once that occurs, the CRA dictates that the agency rule "shall not take effect" (the "Disapproval Provision").45

Furthermore, the CRA provides that the invalidated 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" (the "Reenactment Provision").46 However, reenactment of the same or similar rule is permitted if "the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."47

2. CBD's Challenge

CBD appears to separately challenge the Disapproval Provision and the Reenactment Provision of the CRA. As to the former, CBD contends that the Disapproval Provision unconstitutionally allows Congress to alter DOI's authority without using bicameralism and presentment to amend the underlying statutes that give DOI its authority over National Wildlife Refuges in Alaska.48 CBD also asserts that "even if the CRA and/or the Joint Resolution's declarations that a disapproved rule shall have no effect could be found constitutional, the CRA's prohibition on the issuance of a future rule in `substantially the same form'" (the Reenactment Provision) violates the separation of powers doctrine by "creat[ing] a large and unconstitutional shadow effect that undermines Interior's rulemaking authority."49

B. Standing

Article III standing requires that a plaintiff must have "(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."50 To establish injury in fact, plaintiffs must establish that they suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical."51

Here, CBD challenges two separate parts of the CRA. CBD must have standing for each claim.52

1. Disapproval Provision

CBD's Amended Complaint alleges that Public Law 115-20's disapproval of the Refuges Rule will cause its members the following harm:

At the motion to dismiss stage, "general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss [the court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim."54 CBD has adequately alleged injury to its members resulting from the disapproval of the Refuges Rule.55 The other parties do not appear to directly contest CBD's standing to challenge the Disapproval Provision.56

2. Reenactment Provision

Federal Defendants and Defendant-Intervenors Safari Club contest CBD's standing to challenge the Reenactment Provision of the CRA.57 While Federal Defendants emphasize the lack of "ripeness," both Federal Defendants and Safari Club maintain that CBD has not identified a redressable injury stemming from the Reenactment Provision, in large part because of the speculative, non-imminent nature of any potential harm.58

Federal Defendants contend Plaintiffs lack standing because "Plaintiff has not alleged that the Department of the Interior has any intent to reissue the Refuges Rule (or any substantially similar rule) in the future and that 5 U.S.C. § 801(b)(2) is what stands in its way — Plaintiff only speculates that the Department of the Interior might be prevented from doing so at some future date."59 Similarly, Safari Club asserts that "[f]or the reenactment prohibition to cause harm to CBD's alleged interests, it would have to be likely that Interior would, but for the prohibition, attempt to enact such a regulation."60 Safari Club maintains that because DOI "likely would not reenact a regulation that the President rejected by signing the Joint Resolution," the Reenactment Provision does not give rise to a redressable injury.61

In order to establish Article III standing, a plaintiff must show that it has "suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical."62 Here, CBD's challenge to the Reenactment Provision rests on its assertion that

This assertion does not adequately allege an actual or imminent injury to CBD — it alleges only a hypothetical impingement. However, "the Art. III requirements of standing are not satisfied by the abstract injury in nonobservance of the Constitution asserted by citizens."64 It is the Disapproval Provision — pursuant to which Congress passed Public Law 115-20 — and not the Reenactment Provision — that is the reason why the Refuges Rule is not in effect. Therefore, the Disapproval Provision — and not the Reenactment Provision — is the source of CBD's alleged injury. Any injury caused by DOI's inability to promulgate a substantially similar rule, in the absence of any assertion that DOI would otherwise do so, is too speculative to constitute a concrete or imminent injury and is insufficient to confer Article III standing.

CBD also contends that "the prohibition on a future rule in `substantially the same form' makes it difficult, if not impossible, for Interior to carry out its statutory obligations, as Interior cannot reasonably discern what Congressional mandates still apply, or how, going forward, it can manage the National Wildlife Refuge System in Alaska consistent with those mandates.65 CBD provides little support for the assertion that Federal Defendants' actions will preclude DOI from carrying out its statutory duties, except to suggest that Congress's disapproval of the Refuges Rule somehow renders DOI uncertain as to its remaining authority. These unspecified and speculative allegations do not constitute a concrete or imminent injury.

Even if CBD could establish an injury-in-fact with respect to the Reenactment Provision, CBD has not alleged how invalidating that provision would redress such injury. For if the Disapproval Provision is valid, the Refuges Rule would remain without force and effect, having been disapproved through Public Law 115-20 pursuant that valid statutory provision. Without a stated intention by DOI to reinstate the same or substantially similar rule, the invalidation of the Reenactment Provision would not redress CBD's alleged injury.66 CBD maintains that because it seeks reinstatement of the Refuges Rule, its alleged injury resulting from the Reenactment Provision is redressable.67 But although reinstatement might occur if the Disapproval Provision were invalidated, reinstatement is not plausible if only the Reenactment Provision were invalidated. Therefore, CBD has not established a redressable injury and lacks Article III standing to challenge to the Reenactment Provision.

C. Joint Resolution and the CRA

The Court turns to the constitutionality of the Disapproval Provision of the CRA and the Joint Resolution enacted pursuant to it. In its Amended Complaint, CBD makes separate challenges to the Joint Resolution and the CRA. However, the bases for the claims are substantively identical.68 CBD challenges both the Joint Resolution and the CRA on the basis that they violate the separation of powers doctrine because, through them, Congress restricted DOI's authority without amending the underlying statutes that grant DOI its authority to manage National Wildlife Refuges in Alaska.69 CBD alleges that to the extent the Joint Resolution and the CRA were the bases for congressional disapproval of the Refuges Rule, both were "contrary to law in violation of ... Interior's obligation to `take Care' that the laws it is charged with administering be `faithfully executed.'"70 Thus, while CBD purports to make independent claims against both the Joint Resolution and the CRA, both claims rest entirely on the purported unconstitutionality of the CRA. If the Disapproval Provision of the CRA is constitutional, then the Joint Resolution was a valid exercise of congressional authority under the CRA; if the Disapproval Provision of the CRA represents an unconstitutional exercise of power, then the Joint Resolution was passed pursuant to an unconstitutional statute and is thus invalid. Because the constitutionality of the Joint Resolution is determined by the constitutionality of the CRA, the claims will be considered together in this order. Accordingly, the Court will evaluate CBD's first two claims in its Amended Complaint as a single challenge to the constitutionality of the Disapproval Provision of the CRA ("Constitutional Claim").71

D. Constitutional Claims to the Disapproval of the Refuges Rule

Pursuant to the requirements of the CRA, Public Law 115-20 was passed by both houses of Congress and signed by the President. However, CBD asserts that Public Law 115-20 violates the Constitution in two respects: it lacks bicameralism and presentment, and it violates the "Take Care" Clause.

1. Bicameralism and Presentment

Article I, Section 7 of the Constitution states that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it."72 Therefore, a bill must have been passed by both houses of Congress and signed by the President in order to become law. The former requirement is known as bicameralism and the latter is known as presentment.

Here, there is no contention that the CRA and Public Law 115-20 were not both passed in accordance with the constitutional mandates of bicameralism or presentment. However, CBD asserts that "[t]o lawfully constrain or otherwise alter Interior's authority under these statutes, Congress must amend these laws using the constitutionally-mandated process of bicameralism and presentment."73 Because Public Law 115-20 limits DOI's rulemaking authority but Congress did not specifically amend the underlying sources of that authority, CBD maintains that a constitutional violation has occurred. Federal Defendants respond that joint resolutions passed pursuant to the CRA are consistent with the constitutional requirements of bicameralism and presentment.74

CBD cites to INS v. Chadha as support for its assertion that for Congress to alter DOI's authority pursuant to the CRA, it must first have "amended through bicameralism and presentment ANILCA, the Administration Act, the Improvement Act, or any other law which provided Interior the rulemaking authorities and mandates executed via the Refuges Rule."75 CBD does not explain how Chadha supports its position. In Chadha, the Supreme Court struck down the House of Representatives' practice of using a "legislative veto," in which the House of Representatives would unilaterally override a decision of the executive branch to suspend an individual's deportation.76 To carry out its legislative veto, the House passed a resolution that purported to deport an individual and "was not submitted to the Senate or presented to the President for his action."77 The Supreme Court held that "[t]o accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President."78

Here, Public Law 115-20 was passed by both the House and Senate and submitted to the President for approval, as required by the CRA — which was also passed by both houses of Congress and signed into law by the President.79 Thus, the requirements of bicameralism and presentment are met and CBD's separation of powers concerns fail to state a plausible claim for relief.

2. "Take Care" Clause

Article II, Section 3 of the Constitution provides that "[the President] shall take Care that the Laws be faithfully executed" (the "Take Care Clause"). The Supreme Court has held that "[t]he duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power."80

Here, CBD contends that

CBD reiterates its assertion that Congress must amend DOI's underlying statutory authority before it can disapprove a regulation such as the Refuges Rule, but does not provide persuasive authority to support that assertion. Federal Defendants respond that "Plaintiff's citations to the Take Care Clause should not be construed as adding anything meaningful to its existing constitutional challenges because the Clause does not provide an independent cause of action in this case."82

The authority of an executive agency comes from Congress and is subject to modification by Congress.83 CBD appears to assert that whenever Congress delegates authority to an executive agency, it cannot alter or restrict that authority unless it first specifically amends the statutes originally granting that authority. CBD does not provide authority for this assertion, nor does the Court find a basis for it.84

By framing its argument as relying on the Take Care Clause, CBD appears to argue that if DOI abides by Public Law 115-20's express disapproval of the Refuges Rule, then DOI will violate the duty placed upon it by the Constitution to faithfully execute the laws of the United States, as enacted by Congress.85 This argument seems to require selectively defining "the laws of the United States" as referred to in the Take Care Clause to encompass the statutes granting DOI its authority over National Wildlife Refuges in Alaska but not Public Law 115-20, validly enacted pursuant to the CRA. Furthermore, given that the CRA is itself a law passed by Congress pursuant to the mechanisms outlined in the Constitution, CBD does not adequately explain how the Take Care Clause mandates that the executive branch should retain authority that Congress, with Presidential approval, withdrew from it through Public Law 115-20. Consequently, CBD's invocations of the Take Care Clause do not adequately state a claim for relief as to either the Joint Resolution or the Disapproval Provision of the CRA.

In light of the foregoing, the Court finds that even construing all the facts in favor of CBD, CBD's constitutional claims fail to adequately allege a plausible basis for relief.

E. Statutory Claims

1. Administrative Procedure Act

CBD contends in the Amended Complaint that "[t]o the extent Interior has relied upon the Joint Resolution to revoke, refuse to implement, or otherwise nullify the Refuges Rule, that decision is contrary to law in violation of the APA," citing 5 U.S.C. § 706(2).86 That provision of the APA requires that a court "hold unlawful and set aside agency actions, findings, and conclusions" if they are problematic for a specific set of reasons, including being "contrary to a constitutional right, power, privilege, or immunity."87 Because CBD does not identify a particular basis for finding the CRA invalid under the APA, nor provide any specific support for its contention that an APA violation has occurred, the Court presumes that CBD's APA claim is relies on the alleged unconstitutionality of the CRA and Public Law 115-20. Therefore, unless CBD establishes a constitutional violation, it cannot state an independent claim under the APA. In light of the previous analysis of CBD's constitutional claims, CBD fails to state a plausible claim for relief under the APA.

2. Ultra Vires Revocation

In its second statutory argument, CBD contends that because the Refuges Rule fell under § 808 of the CRA, which exempts rules relating to hunting and fishing from certain provisions of that act, it was thus immune from congressional review and should have remained in effect.88 Although Federal Defendants and Defendant-Intervenors PLF challenge the Court's subject matter jurisdiction over this claim, the Court finds that it has jurisdiction and that CBD has failed to state a claim on the merits.89

5 U.S.C. § 808 provides that "any rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping... shall take effect at such time as the Federal agency promulgating the rule determines." CBD asserts that this provision of the statute indicates that "the CRA does not permit Congressional disapproval of regulations covered by Section 808 in a new session of Congress," and therefore the Refuges Rule could not have been properly disapproved under the CRA because "it is plainly a `rule that establishes, modifies, opens, closes, or conducts a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping'" and therefore falls under § 808.90

Rules not falling within § 808 take effect pursuant to the timeline laid out in §§ 801(a)(3)-(4).91 § 801(d)(1) provides for the mechanism used by Congress in passing the Joint Resolution in this case, allowing a new session of Congress to disapprove a rule passed at the end of the prior session of Congress. CBD contends that because § 801(d)(1) contemplates "any rule for which a report was submitted in accordance with subsection (a)(1)(A)," then 801(d)(1) does not apply to the Refuges Rule, because "regulations covered by Section 808 do not require a Congressional Report because Section 801 only requires such a report `[b]efore a rule can take effect,' and by operation of Section 808, these regulations take effect irrespective of a Congressional Report."92 Therefore, argues CBD, the Refuges Rule was not "submitted in accordance with subsection (a)(1)(A)," and therefore "the Refuges Rule was not eligible for disapproval under Section 801(d)(1) in the new session of Congress."93

However, CBD's argument appears to impute more meaning to § 808 than its plain language will allow. There is nothing in the language of § 808 to indicate that it is intended to exempt rules related to fishing or hunting from Congressional review altogether. By its own words the provision allows the agency to determine the date that the regulation "shall take effect," thus withdrawing it from the timeline established by §§ 801(a)(3)-(4). Rather than having the kind of sweeping effect proposed by CBD, the language of the CRA indicates that § 808 merely alters the effective date of those particular types of agency rules.

Furthermore, as Federal Defendants argue, "[§ 801(a)(1)(A)] says that an agency `shall submit' a CRA report when it issues `a rule,' and specifies that the report include certain information about `the rule.'"94 The Refuges Rule, despite falling within § 808, is undoubtedly "a rule;" therefore, this Court sees no reason why it would not fall under § 801(a)(1)(A). In addition, § 801(d)(1) provides for review of rules "for which a report was submitted in accordance with subsection (a)(1)(A) [during the specified time period]." Here, there is no dispute that a report was submitted for the Refuges Rule, within the time period specified in § 801(d)(1). Therefore, CBD's fails to state a cognizable claim for relief.95

CONCLUSION

In light of the foregoing, the Motions to Dismiss at Dockets 107, 110, 113, and 116 are GRANTED.

The Clerk of Court is directed to enter a final judgment accordingly.