VALERIE CAPRONI, United States District Judge:
Environmental interest groups and various States brought these three actions to vacate a December 2017 memorandum by Daniel Jorjani, Principal Deputy Solicitor of the United States Department of the Interior ("DOI"), that interprets the Migratory Bird Treaty Act ("MBTA") to permit the "incidental" taking, or killing, of migratory birds. See 18-CV-4596 Dkt. 1 (Compl.); 18-CV-4601 Dkt. 1 (Compl.); 18-CV-8084 Dkt. 6 (Compl.). Defendants— Principal Deputy Solicitor Jorjani, DOI, and the United States Fish and Wildlife Service ("FWS")—have moved to dismiss all three actions for lack of Article III standing and for failure to state claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., among other grounds. See 18-CV-4596 Dkts. 26-28; 18-CV-4601 Dkts. 29-31; 18-CV-8084 Dkts. 44-46. The Court, meanwhile, has directed the parties to show cause why the cases should not be consolidated pursuant to Fed. R. Civ. P. 42(a)(2). See 18-CV-4596 Dkt. 51; 18-CV-4601 Dkt. 44; 18-CV-8084 Dkt. 64. For the following reasons, these cases are CONSOLIDATED, and Defendants' motions to dismiss are GRANTED IN PART and DENIED IN PART.
Because Defendants' motions largely concern procedural matters; because the briefs submitted by the parties and by several former DOI officials as amici curiae (see 18-CV-4596 Dkt. 44 ex. 1) so thoroughly address the topic; and because the Court will provide further details throughout this opinion, only a brief description of the MBTA and the agency activities giving rise to this litigation is necessary.
In 1916, the United States and Great Britain, acting on Canada's behalf, entered into a treaty to protect migratory birds. See Convention Between the United States and Great Britain for the Protection of Migratory Birds, Gr. Brit.-U.S., Aug. 16, 1916, 39 Stat. 1702. In 1918, the United States enacted the MBTA to implement the treaty and similar treaties with other countries.
16 U.S.C. § 703(a). In its current form, the MBTA makes any violation of its provisions a misdemeanor punishable by a fine of up to $15,000 and imprisonment for up to six months. Id. § 707(a). Any knowing "take" of any migratory bird "by any manner whatsoever" with intent to sell it is a felony punishable by a fine of up to $2,000 and imprisonment for up to two years. Id. § 707(b). Although the statute does not define "take," it is colloquially understood in the wildlife context to refer to an act by which a person achieves possession or control over an animal. An FWS regulation generally defines the term to mean "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect." 50 C.F.R. § 10.12.
For decades, DOI had interpreted the MBTA as making any "incidental" take of a migratory bird—that is, a take that results from a human activity when taking the bird is not the purpose of the activity— a misdemeanor. See 18-CV-8084 Dkt. 6 app. A (Tompkins Op.) at 1-2, 12-15. Indeed, in early January 2017, DOI's Solicitor
In December 2017, following a change in administrations and Solicitor Tompkins's departure, DOI's Principal Deputy Solicitor, Daniel Jorjani—exercising the authority of the DOI Solicitor in the absence of a confirmed appointee to that office
The Jorjani Opinion reverses the Tompkins Opinion. It concludes that, "consistent with the text, history, and purpose of the MBTA, the statute's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs." Dkt. 28 ex. A (Jorjani Op.) at 2. Acknowledging that "this interpretation is contrary" to DOI's "prior practice," the Opinion states that "[i]nterpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed." Id. at 1-2 & n.4.
In April 11, 2018, the Principal Deputy Director of FWS—an agency within DOI—issued a memorandum and a "frequently asked questions" document to "provide[] guidance to clarify what constitutes prohibited take" under the MBTA in light of the Jorjani Opinion. See 18-CV-8084 Dkt. 6 app. B (FWS Guidance) at 1. That memorandum notes that FWS "is modifying some policies and practices within its programs" to "[e]nsure consistency with the recently issued" Jorjani Opinion and directs FWS personnel to "ensure that [the agency's] comments, recommendations, or requirements are not based on, nor imply, authority under the MBTA to regulate incidental take of migratory birds." Id. at 1-2. It also provides that FWS "will not withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA."
In May 2018, the NRDC and Audubon Plaintiffs filed lawsuits challenging the
On November 20, 2018, in an omnibus brief, Defendants moved to dismiss all three actions under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See 18-CV-4596 Dkts. 26-28; 18-CV-4601 Dkts. 29-31; 18-CV-8084 Dkts. 44-46.
Because these cases involve common questions of law and fact, and because the parties do not oppose consolidation, the Court consolidates the actions pursuant to Rule 42(a)(2). This consolidation is without prejudice to the Audubon Plaintiffs' ability to press their separate NEPA claim.
Article III of the Constitution limits the jurisdiction of the federal courts to "Cases" and "Controversies." Dep't of
Contrary to Defendants' argument, at least one Plaintiff in this now-consolidated action has plausibly alleged Article III standing for each claim asserted and form of relief requested, thereby supplying the Court with jurisdiction over this case (at least insofar as the Constitution is concerned). See, e.g., Town of Chester v. Laroe Estates, Inc., ___ U.S. ___, 137 S.Ct. 1645, 1650-51, 198 L.Ed.2d 64 (2017) ("[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.... The same principle applies when there are multiple plaintiffs. At least one plaintiff must have standing to seek each form of relief requested in the complaint." (citations and internal quotation marks omitted)); Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) ("It is well settled that where, as here, multiple parties seek the same relief, the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement." (internal quotation marks omitted)). All Plaintiffs seek vacatur of the Jorjani Opinion under Section 706(2)(A) on the ground that the Opinion is contrary to the text of the MBTA. The Audubon Plaintiffs additionally seek vacatur under Section 706(2)(A)
Taking all of the States' allegations as true and drawing all inferences in their favor, Carter, 822 F.3d at 56-57, the Court is satisfied that at least one of the States has adequately alleged Article III standing to seek vacatur of the Jorjani Opinion under Section 706(2)(A).
Although the States advance several theories of injury, see 18-CV-8084 Dkt. 54 (States' Mem. in Opp. to MTD) at 5-10, the most obvious of them suffices for present purposes: the Jorjani Opinion creates substantial risk that migratory birds owned by the States will be killed by private actors. Under New York State law, for example, the State "owns all ... game [and] wildlife ... in the state" not held by private interests. N.Y. Envtl. Conserv. Law § 11-0105. According to the States' Complaint, this includes "well over 300 species of migratory birds protected under the [MBTA] that nest in or regularly migrate through New York." 18-CV-8084 Dkt. 6 (States' Compl.) ¶ 13. As the States allege in detail, see id. ¶¶ 30-37, by barring FWS from criminally prosecuting private industrial behavior that incidentally kills birds owned by the State of New York, the Jorjani Opinion has eliminated the primary incentive private actors had to take precautionary measures to minimize or prevent bird deaths or to avoid altogether certain industrial activities that create a risk of such deaths. The Opinion therefore creates a "substantial risk," Driehaus, 573 U.S. at 158, 134 S.Ct. 2334, that private actors will incidentally kill at least one migratory bird—and probably many more—owned by the State of New York. This "substantial risk that ... harm will occur" to the State's property constitutes injury in fact. Driehaus, 573 U.S. at 158, 134 S.Ct. 2334; see also, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601-02, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) ("[L]ike other associations and private parties, a State is bound to have a variety of proprietary interests. A State may, for example, own land or participate in a business venture. As a proprietor, it is likely to have the same interests as other similarly situated proprietors. And like other such proprietors it may at times need to pursue those interests in court.").
Defendants' response—that Plaintiffs' theory of injury "depends on [speculative] assumptions about how potential violators of the MBTA will alter their behavior in response to the [O]pinion, and further assumptions about how that change in behavior will affect migratory birds," Dkt. 27 (Mem. in Supp. of MTD) at 17; see also id. at 19-20 (reasserting same argument against the States)—runs counter to the Opinion they are defending. In his Opinion, Principal Deputy Solicitor Jorjani asserted that changing DOI's interpretation of the MBTA to permit incidental take was justified in part because the Department's longstanding contrary interpretation, and its accompanying threat of prison time and a $15,000-per-bird fine, "h[ung] the sword of Damocles" over private actors, creating a "threat of prosecution" that inhibited "a host of otherwise lawful and productive actions." Dkt. 28 ex. A (Jorjani Op.) at 1-2. Now that the shoe is on the other foot,
This reasoning disposes of Defendants' arguments on causation and redressability as well. As an initial matter, Defendants misstate the causation inquiry when they assert that "Plaintiffs cannot satisfy the traceability requirement" because "the potential injuries alleged in the complaints would only result from the conduct of parties potentially subject to regulation under the MBTA." Dkt. 27 (Mem. in Supp. of MTD) at 21. "This wrongly equates injury `fairly traceable' to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation." Bennett v. Spear, 520 U.S. 154, 168-69, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The fact that a plaintiff's causation theory rests ultimately on the choices of third parties does not by itself preclude standing. Because Article III requires only de facto causality, at the pleading stage, Plaintiffs' burden is to allege facts "showing that third parties will likely react in predictable ways" to the Jorjani Opinion and that their predictable reaction will cause the injuries about which Plaintiffs complain. Commerce, 139 S. Ct. at 2566 (citing Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scalia, J.)); see also Lujan, 504 U.S. at 562, 112 S.Ct. 2130.
The States have carried that burden. Taking the States' allegations as true, there is a "substantial likelihood" that by eliminating the threat of federal criminal prosecution under the MBTA, the Jorjani Opinion has substantially reduced the potential cost of activities that incidentally kill migratory birds, making it more likely that third parties will undertake such activities and kill at least one migratory bird owned by one of the Plaintiff States. Nat. Res. Def. Council v. Nat'l Highway Traffic Safety Admin., 894 F.3d 95, 104 (2d Cir. 2018). Further, it is plausible that vacating the Jorjani Opinion because it contravenes the text of the MBTA, as Plaintiffs request, would reduce that risk. See id. at 104-05 ("The notion that financial incentives deter environmental misconduct is hardly novel." (brackets omitted) (quoting In re Idaho Conservation League, 811 F.3d 502, 510 (D.C. Cir. 2016)). That is all
Stomping their feet and growling "you can't make me," Defendants next contend that vacatur of the Jorjani Opinion would not actually redress Plaintiffs' alleged injuries because, even if the Opinion is vacated, Defendants' enforcement priorities and decisions with respect to incidental take would not return to the "pre-Opinion ... status quo." Dkt. 27 (Mem. in Supp. of MTD) at 23-24. This argument is a red herring. Article III's redressability element does not, first of all, require that the judicial relief a plaintiff requests achieve the pre-decision status quo. The prevention of even one injury fairly traceable to an agency's challenged conduct—here, the incidental take of one migratory bird owned by one of the Plaintiff States— suffices. See, e.g., Donziger, 833 F.3d at 121 ("A plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his
That reasoning applies here. There is no dispute that before the Jorjani Opinion, the official position of DOI and FWS was that incidental takes of migratory birds were illegal and subject to criminal prosecution pursuant to the MBTA. 18-CV-8084 Dkt. 6 app. A (Tompkins Op.) at 2; see also Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri, 802 F.3d 267, 277 n.8 (2d Cir. 2015) ("The Solicitor's M-Opinions are binding on the DOI as a whole. After an M-Opinion is completed, the DOI will take action consistent with the legal interpretation explained by the Solicitor." (citation and alterations omitted)). Nor is there any dispute that the Jorjani Opinion "permanently with[drew]" the Tompkins Opinion "and replace[d]" it with the official position that the MBTA prohibits only purposeful takes. Dkt. 27 (Mem. in Supp. of MTD) at 7; see also Dkt. 28 ex. A (Jorjani Op.) at 1 ("[T]his memorandum permanently withdraws and replaces Opinion M-37041."). An order vacating the Jorjani Opinion would, therefore, (1) reinstate the Tompkins Opinion's conclusion that incidental takes are unlawful as DOI and FWS's official interpretation of the MBTA; and (2) thereby restore the metaphorical sword of Damocles over the heads of private industry.
The Court is also unpersuaded by Defendants' argument that, given their "clear expression of their interpretation of the [MBTA] and their intent to pursue rulemaking to codify that interpretation," private behavior vis-à-vis incidental takes will not change even if the Jorjani Opinion is vacated and the "sword of Damocles" restored. Dkt. 27 (Mem. in Supp. of MTD) at 26-27; see also Dkt. 50 (Reply in Supp. of MTD) at 8-9. As far as this Court is aware, Defendants' "intent to pursue rulemaking to codify" the Jorjani Opinion remains inchoate. And the Court cannot at this juncture accept as gospel Defendants' theory that a nod is as good as a wink as far as private interests potentially subject to criminal prosecution and fines under the MBTA are concerned. After all, as Principal Deputy Solicitor Jorjani himself colorfully explained, "the value of a sword of Damocles is that it hangs—not that it drops." Dkt. 28 ex. A (Jorjani Op.) at 1 (quoting Arnett v. Kennedy, 416 U.S. 134, 231, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Marshall, J., dissenting)).
For all of these reasons, the Court concludes that the States have adequately alleged Article III standing to seek vacatur of the Jorjani Opinion under Section 706(2)(A).
At the very least, the National Audubon Society has adequately alleged
Taking the Audubon Plaintiffs' allegations as true, the Court is satisfied that the National Audubon Society's members would have standing to challenge the Jorjani Opinion in their own right. The Society has over 1.2 million members nationwide, with 64,719 members in New York alone. 18-CV-4601 Dkt. 1 (Audubon Compl.) ¶ 15. Many of those members "regularly observe, study, photograph, and otherwise enjoy migratory birds in the wild." Id. ¶ 20. As discussed at length above, see supra Pt. II.A., it is plausible that eliminating the threat of federal criminal prosecution for incidental takes has increased the risk that the migratory birds the National Audubon Society's members enjoy will be killed incident to private industrial activities. Those takes infringe upon those members' "desire to ... observe an animal species, even for purely esthetic purposes," a desire which is "undeniably a cognizable interest for purpose of standing." Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130.
Defendants argue, not entirely without basis, that the organizational Plaintiffs have failed to allege injury in fact because they "do not even attempt to specify where these harms are likely to occur or how those particular harms will affect their members' [esthetic] interests." Dkt. 27 (Mem. in Supp. of MTD) at 18. The Audubon Complaint's most specific allegations on this point—that some of the Audubon Plaintiffs' members "reside and/or recreate in specific locations" where "FWS field offices, relying on [the Jorjani Opinion], have told one or more companies constructing natural gas pipelines that they may cut down trees with nesting birds during the breeding season," 18-CV-4601 Dkt. 1 ¶ 22—are admittedly rather general. But the enormity and distribution of the National Audubon Society's membership, along with the national scope of the Jorjani Opinion, make it "easy" in this case "to presume specific facts under which [the Society's members] will be injured," Bennett, 520 U.S. at 168, 117 S.Ct. 1154. At later stages of this litigation it will be necessary for the Society and its fellow organizational Plaintiffs to adduce specific evidence that migratory birds are being or will be harmed as a result of the Jorjani Opinion and that those harms will directly affect one or more of their members, separate and apart from their special interest in the subject. See Lujan, 504 U.S. at 563, 112 S.Ct. 2130. But at this stage, the Court is satisfied that the Society's "general factual allegations of injury resulting from [Defendants'] conduct ... suffice" to plead injury in fact. Id. at 561, 112 S.Ct. 2130 ("[O]n a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." (alteration and internal quotation marks omitted); see also, e.g., Fin. Guar. Ins. Co. v. Putnam Advisory Co., 783 F.3d 395, 401-02 (2d Cir. 2015) (articulating same principle).
Moreover, to the extent the Audubon Plaintiffs "must satisfy the normal standard for redressability" because the "redressability obstacle" they face is "uncertainty over what" a third party will do, St. John's United Church of Christ v. FAA, 520 F.3d 460, 463 (D.C. Cir. 2008), the National Audubon Society has alleged sufficient facts to satisfy that standard. To borrow from St. John's United's phrasing (which in turn borrowed from Lujan), for the same reasons that the States have shown that their allegedly threatened injuries are redressable by an order vacating the Jorjani Opinion, see supra Pt. II.A, the National Audubon Society has plausibly pleaded that the industrial activities that incidentally kill migratory birds and affect its member's esthetic interests "will be altered or affected by the agency activity" —the Tompkins Opinion—that "they seek to [reinstate]." St. John's United, 520 F.3d at 463 (quoting Lujan, 504 U.S. at 570, 112 S.Ct. 2130).
Finally, regarding the second and third elements of associational standing, there can be no serious dispute that the esthetic interests of the National Audubon Society's members in migratory birds are "germane to the organization's purpose." Nat. Res. Def. Council, 894 F.3d at 104 (citation omitted). The Society exists to protect birds for ecological, academic, and esthetic purposes. 18-CV-4601 Dkt. 1 (Audubon Compl.) ¶¶ 15, 20. And neither the claims the Society asserts nor the relief it requests requires the participation of its
For these reasons, the Court concludes that, at the very least, the National Audubon Society has adequately alleged Article III standing to seek vacatur of the Jorjani Opinion because it was issued without notice and comment in violation of Section 553 and NEPA. And because at least one Plaintiff in this consolidated action has "demonstrate[d] standing for each claim... and for each form of relief that is sought," the Court has subject-matter jurisdiction over the whole case insofar as Article III is concerned.
Defendants contend that, even if some Plaintiffs have Article III standing, the Court nonetheless lacks jurisdiction because the Jorjani Opinion is not a "final agency action" under 5 U.S.C. § 704. See Dkt. 27 (Mem. in Supp. of MTD) at 27-34. The Court disagrees. The APA permits judicial review of "[a]gency action made reviewable by statute" and "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. No one contends that any statute renders the Jorjani Opinion reviewable even if it is not final, so this Court has jurisdiction to review the Opinion only if it is a "final agency action."
Although many different formulations have been used to describe when an agency action is final within the meaning of Section 704, DRG Funding Corp. v. Sec'y of Hous. & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (collecting cases), the Supreme Court recently made clear that the formulation it first articulated in Bennett v. Spear, 520 U.S. at 177-78, 117 S.Ct. 1154, controls: "First, the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." U.S. Army Corps of Eng'rs v. Hawkes Co., ___ U.S. ___, 136 S.Ct. 1807, 1813, 195 L.Ed.2d 77 (2016) (internal quotation marks and footnote omitted). This inquiry is, fundamentally, a "pragmatic" one. Id. at 1815 (internal quotation marks omitted).
As to the first prong, there is nothing tentative or interlocutory about the Jorjani Opinion. To the contrary, by its terms, the Opinion's withdrawal and replacement of the Tompkins Opinion is "permanent." Dkt. 28 ex. A (Jorjani Op.) at 1. It acknowledges no limitation on the degree to which it now represents DOI's (and, by extension, FWS's) formal position vis-à-vis incidental takes under the MBTA, see id., and Defendants concede that it is "binding on the DOI as a whole," including on FWS, Dkt. 27 (Mem. in Supp. of MTD) at 28-29 (internal quotation marks omitted). Nor does it have the kind of qualification-laden, guideline-offering, advice-giving, recommendation-making, or discretion-preserving language that courts have held signifies a lack of finality.
Defendants' principal argument on the first prong is that the Jorjani Opinion is not the consummation of any decision-making process "because, standing alone, it is not DOI's final determination on any matter." Dkt. 27 (Mem. in Supp. of MTD) at 28-32. That kind of "final determination," Defendants say, "will occur only in any forthcoming individual decisions regarding criminal enforcement of the MBTA or other agency actions premised on the application of" the Opinion. Id. at 29-30. The Court disagrees. First, "[t]he APA does not require that the challenged agency action be the agency's final word on the matter for it to be `final' for the purposes of judicial review." Salazar v. King, 822 F.3d 61, 83-84 (2d Cir. 2016); see also, e.g., CSI Aviation Servs., Inc. v. U.S. Dep't of Transp., 637 F.3d 408, 413 (D.C. Cir. 2011) (rejecting as "mistaken" the argument "that final agency action in a case like this one requires the completion of a
The Jorjani Opinion satisfies Bennett's second prong as well. The Opinion "gives rise to `direct and appreciable legal consequences,'" Hawkes Co., 136 S. Ct. at 1814 (quoting Bennett, 520 U.S. at 178, 117 S.Ct. 1154): it bars DOI and FWS personnel from instituting enforcement proceedings under the MBTA for incidental takes, thereby effectively immunizing industry actors from criminal liability for such takes. In this respect, the Jorjani Opinion is like the agency action the D.C. Circuit confronted (and ultimately vacated) in Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (per curiam). In that case, a group of environmental organizations challenged the EPA's decision to stay the implementation of certain provisions of a final rule regarding greenhouse-gas emissions. See 862 F.3d at 4. Rejecting the agency's argument that the stay was not a final agency action, the court held that the stay "affect[ed] regulated parties' rights or obligations," as Bennett's second prong requires, because it indefinitely extended oil and gas companies' deadline to comply with the provisions, thereby "eliminat[ing]" the "threat" of "civil penalties, citizens' suits, fines, and imprisonment" for noncompliance with those provisions and "reliev[ing]
Clean Air Council also refutes Defendants' arguments (1) that, for an agency action to be final, it must "impose ... new legal obligations" on or "have a direct and immediate effect on the day-to-day business" of the plaintiffs challenging the action, Dkt. 27 (Mem. in Supp. of MTD) at 30, 32-34, and (2) that "the possibility that [an action] could alter the conduct of potentially regulated parties, which in turn could potentially affect the interests of the Plaintiffs, is not sufficient to satisfy the second prong of Bennett," Dkt. 50 (Reply in Supp. of MTD) at 13-14. The EPA's stay in Clean Air Council satisfied Bennett's second prong because it affected the obligations of third-party oil and gas producers; neither the majority nor the dissent had any concern that the stay did not directly affect any obligations of the plaintiffs or that the plaintiffs' finality theory rested on the stay's impact on third parties. See 862 F.3d at 4, 6; see also id. at 17 (Brown, J., dissenting). And in this regard, Clean Air Council is hardly unique. In Natural Resources Defense Council v. Environmental Protection Agency, 643 F.3d 311, 320 (D.C. Cir. 2011), and Scenic America, Inc. v. U.S. Department of Transportation, 836 F.3d 42, 56 (D.C. Cir. 2016), for example, the D.C. Circuit held that agency actions—in the first case, an EPA guidance document regarding air-quality standards; in the second, a Federal Highway Administration guidance memorandum regarding billboard lighting— were final even though the actions affected the rights and obligations of agency personnel or regulated entities rather than those of the plaintiff nonprofit organizations. In Natural Resources Defense Council, the EPA guidance document satisfied Bennett's second prong because it "b[ound] EPA regional directors" and authorized them to approve air-quality implementation plans that did not include collection of certain penalties from polluters. See Nat'l Res. Def. Council, 643 F.3d at 313-17, 320. In Scenic America, the FHWA guidance satisfied Bennett's second prong because it set forth criteria for the agency's Division Offices to use in approving or rejecting state regulations of billboard lighting, thereby "withdraw[ing] some of the discretion concerning billboard permitting [that] the Division Offices and states previously held." 836 F.3d at 45-47, 56. In neither case was it material to the finality analysis that the challenged agency action did not directly affect the legal obligations or day-to-day business of the plaintiffs.
Finally, in what can only be viewed as a Hail Mary pass, Defendants contend that their "announced intention to pursue a formal rulemaking to codify the legal analysis" in the Jorjani Opinion is evidence that "the M-Opinion on its own does not alter the applicable legal regime." Dkt. 27 (Mem. in Supp. of MTD) at 34. As far as this Court is aware, Defendants have not followed through on their intent to initiate rulemaking. Nor did the Opinion itself note any such intention. Quite the opposite: it stated that that its withdrawal and replacement of the Tompkins Opinion was permanent. Dkt. 28 ex. A (Jorjani Op.) at 1. It appears that Defendants' desire to initiate a rulemaking bubbled up for the first time in November 2018, see Dkt. 27 (Mem. in Supp. of MTD) at 9-10—almost a year after the Opinion was issued and nearly six months after the NRDC and Audubon Plaintiffs filed their complaints. Although the Court hesitates to be cynical, this timeline suggests that Defendants are attempting "to avoid judicial review through disingenuous claims that the agency is in the process of amending a final rule through additional rulemaking."
In short, the Jorjani Opinion is a "final agency action" under Section 704.
"Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted). "Determining whether administrative action is ripe for judicial review requires [a court] to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding
This case is fit for judicial decision. Defendants kick up dust on this point, contending that "judicial review of [the Jorjani Opinion] would interfere inappropriately with internal agency decision-making processes" and that the Court "would benefit from further factual development of the issues presented." Dkt. 27 (Mem. in Supp. of MTD) at 36 (internal quotation marks omitted). But, as discussed in Part III above, it is entirely unclear what further "internal agency decision-making processes" Defendants anticipate inasmuch as the Opinion has definitively resolved for DOI and FWS the question whether the MBTA prohibits to incidental takes. Even more peculiar is Defendants' argument that judicial review of the Jorjani Opinion might "interfere with the relationship between agency officials and counsel" and thereby "inhibit the agency's exercise of its discretion." Id. One of the Opinion's stated purposes was to eliminate altogether agency discretion with respect to incidental takes. See Dkt. 28 ex. A (Jorjani Op.) at 32-41 (arguing that the MBTA's incidental-take provisions are potentially unconstitutionally vague, that prosecutorial discretion is insufficient to cure that vagueness, and that an interpretation "that limits [the statute's] application to affirmative and purposeful conduct is necessary to avoid grave constitutional infirmities"). Because exposure to incidental-take liability under the MBTA is, to borrow a phrase from Defendant Jorjani, "an all-or-nothing proposition," id. at 38— the MBTA prohibits incidental takes or it does not—it is unclear what discretionary agency judgments could be affected by judicial review of a binding Opinion concluding that the MBTA does not prohibit incidental takes. Those "judgments" will hardly be judgments at all.
Defendants' factual-development argument is a throwaway. Defendants do not explain what facts need to be developed, and the only facts that the Court can foresee requiring evidentiary support— those relating to Plaintiffs' standing— should pose no obstacle to judicial review. Whether the Jorjani Opinion is consistent with the MBTA's text, complied with Section 553, and comported with NEPA are purely legal questions. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 479, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ("The question before us here is purely one of statutory interpretation that would not benefit from further factual development of the issues presented." (internal quotation marks omitted)); see also, e.g., Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 737, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) ("[A] person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.").
Nor is the Court persuaded that it should delay review because doing so "would not cause hardship to any of the Plaintiffs." Dkt. 27 (Mem. in Supp. of MTD) at 35. A "federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging." Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (internal quotation marks omitted). In light of this obligation, and because this case is otherwise fit for judicial review, the question is not whether
Thus, the Court is satisfied that this case is ripe for judicial review.
Section 553 establishes the procedure agencies must follow when making rules. The procedure begins with the agency publishing a "[g]eneral notice of proposed rule making," typically in the Federal Register. 5 U.S.C. § 553(b). After publication, the agency must "give interested persons an opportunity" to comment —that is, "to participate in the rule making through submission of written data, views, or arguments." Id. § 553(c). The dual purposes of the "notice and comment" procedure are "to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies,... and to assure that the agency is presented with all information and suggestions relevant to the problem at issue." White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993) (citations and internal quotation marks omitted). If an agency engages in rule-making without the notice and comment Section 553 requires, the rule-making is subject to vacatur under Section 706(2)(D) on the ground that it was issued "without observance of procedure required by law." 5 U.S.C. § 706(2)(D).
There is no dispute that the Jorjani Opinion was issued without notice and comment. Defendants point, however, to Section 553(b), which provides that the notice-and-comment procedure "does not apply" to, among other things, "interpretative rules." 5 U.S.C. § 553(b). Defendants contend that the Jorjani Opinion is an "interpretative rule" that is exempt from Section 553. The Court agrees.
The touchstone for distinguishing an interpretive rule from one subject to notice and comment is whether the rule clarifies an existing statute or regulation, on the one hand, or creates new law, rights, or duties "in what amounts to a legislative act," on the other. White, 7 F.3d at 303. "If the rule is an interpretation of a statute rather than an extra-statutory imposition of rights, duties or obligations, it remains interpretive even if the rule embodies the [agency's] changed interpretation of the statute." Id. at 304.
The Jorjani Opinion is quintessentially interpretive. After tracing the evolution of the MBTA and describing judicial decisions construing it, see Dkt. 28 ex. A (Jorjani Op.) at 2-17, the Opinion turns to an "Analysis of Incidental Take Under the MBTA," marshaling the Act's text, its legislative history, and various canons of statutory construction to reach its conclusion that the Act prohibits only direct and purposeful takes, see id. at 18-41. Because the
The Audubon Plaintiffs contend that the Jorjani Opinion "creates new law, rights, or duties" because it "insulates from liability any form of incidental take" and thereby "obligat[es] agency personnel to refrain from applying the Act as they have for decades." 18-CV-4601 Dkt. 34 (Audubon Mem. in Opp. to MTD) at 30. Although the Court agrees with the Audubon Plaintiffs that the Opinion prevents DOI and FWS personnel from criminally prosecuting incidental takes and thereby effectively "insulates" private actors from MBTA liability for such conduct, see supra Pts. II.A. III, its purported authority for doing so is not "extra-statutory," White, 7 F.3d at 304. The Opinion bases its conclusion on the MBTA's text, its legislative history, and on judicial decisions interpreting the Act. The Opinion's conclusion may prove to be contrary to the Act's text and therefore "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). But the fact that the Opinion may have reached the wrong legal conclusion does not transform it from being an "interpretation of a statute" into being an "extra-statutory" creation or modification "of rights, duties or obligations." White, 7 F.3d at 304. Neither does the fact that it reverses DOI's prior and longstanding understanding of the statute. See id. ("[A]n interpretive rule changing an agency's interpretation of a statute is not magically transformed into a legislative rule.").
Therefore, the Court dismisses the Audubon Plaintiffs' notice-and-comment claim. Because the Jorjani Opinion is not subject to Section 553's notice-and-comment procedure as a matter of law, leave to amend is denied. See, e.g., AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626, F.3d 699, 726 (2d Cir. 2010) ("Leave to amend may be denied on grounds of futility....").
"NEPA is a procedural statute that mandates a process rather than a particular result." Nat. Res. Def. Council, Inc. v. FAA, 564 F.3d 549, 556 (2d Cir. 2009) (internal quotation marks omitted). It requires a federal agency to prepare an "environmental impact statement," or "EIS," before taking any "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). If an agency is uncertain whether a contemplated action requires an EIS, it must prepare an "environmental assessment," or "EA," that provides "sufficient evidence and analysis for determining whether to prepare an" EIS. 40 C.F.R. § 1508.9. If the agency determines that its contemplated action "will not have a significant effect on the human environment," and thus that an EIS is unnecessary, then it must issue a "finding of no significant impact" that "briefly present[s] the reasons" for that conclusion. Id. § 1508.13. Defendants contend that the Jorjani Opinion did not trigger NEPA's procedures because the Opinion was not a "major Federal action" under 42 U.S.C. § 4332(2)(C). See Dkt. 27 (Mem. in Supp. of MTD) at 39-40. The Court disagrees.
Defendants seek refuge in regulations issued by the Council on Environmental Quality ("CEQ"), a NEPA-created body within the Executive Office of the President that is tasked with promulgating rules "applicable to and binding on all
40 C.F.R. § 1508.18(b)(1). Defendants contend that because the Jorjani Opinion "is neither a rule nor a regulation," and because "the legal interpretation of the MBTA offered in the [O]pinion was not adopted pursuant to the requirements of the APA," it does not qualify as a "major Federal Action" as the CEQ has authoritatively interpreted the term. Dkt. 27 (Mem. in Supp. of MTD) at 39-40.
Even if Section 1508.18(b)'s listing of "Federal actions" were intended to be exhaustive, the Court is not persuaded that the Jorjani Opinion fails to qualify under Section 1508.18(b)(1). The Court agrees with Defendants that the Opinion was not adopted "pursuant to" the APA procedural requirements codified at 5 U.S.C. § 553. See supra Pt. V. But Defendants offer no reason to conclude that the Opinion does not qualify as a "formal document[] establishing an agency's policies which will result in or substantially alter agency programs." 40 C.F.R. § 1508.18(b)(1). It is certainly "formal." See Chaudhuri, 802 F.3d at 277 n.8 ("An M-Opinion is a formal legal opinion signed by the Solicitor."). It "permanently" establishes DOI's policy that the MBTA does not apply to incidental takes. Dkt. 28 ex. A (Jorjani Op.) at 1. And, because the Opinion effectively precludes DOI and FWS personnel from prosecuting incidental takes under the MBTA, it is at least plausible that it will "substantially alter agency programs," 40 C.F.R. § 1508.18(b)(1), to the extent it has not already done so.
Because the Jorjani Opinion plausibly qualifies as a "major Federal action" as Section 1508.18(b)(1) interprets the term,
For the foregoing reasons, these cases are consolidated pursuant to Fed. R. Civ. P. 42(a)(2) under Docket No. 18-CV-4596, and Defendants' motions to dismiss are GRANTED IN PART and DENIED IN PART. The Audubon Plaintiffs' claim that the Jorjani Opinion was issued without notice and comment in violation of 5 U.S.C. § 553 is dismissed with prejudice. The motions are denied as to all other claims.
The Clerk of Court is respectfully directed to (a) terminate the open motions at Dkt. 26 in 18-CV-4596, Dkt. 29 in 18-CV-4601, and Dkt. 44 in 18-CV-8084; (b) consolidate these three cases under docket number 18-CV-4596; and (c) close 18-CV-4601 and 18-CV-8084. All further submissions in this now-consolidated case must be filed under docket number 18-CV-4596.
The parties must appear for a status conference on
The well-understood deterrent value of criminal environmental regulations sets this case apart from Burton v. Central Interstate Low-Level Radioactive Waste Compact Commission, 23 F.3d 208, 210 (8th Cir. 1994), Town of Babylon v. Federal Housing Finance Agency, 699 F.3d 221, 229-30 (2d Cir. 2012), and Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42-44, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). See Dkt. 27 (Mem. in Opp. to MTD) at 24, 26-27 (citing these cases). In those cases, the third-party conduct that was the immediate cause of the plaintiffs' injury would have been lawful even in the absence of the government regulation being challenged. Not so here. See, e.g., Bennett, 520 U.S. at 169, 117 S.Ct. 1154 ("While... it does not suffice if the injury complained of is the result of the independent action of some third party not before the court, ... that does not exclude injury produced by determinative or coercive effect upon the action of someone else." (internal quotation marks, alterations, and citations omitted)).
On the topic of remedies, the Court notes that it need not concern itself at this stage with Defendants' contention that "the only appropriate remedy" if Plaintiffs succeed on their APA claims "would be a remand to DOI to consider any issues the Court deem[s] necessary, without vacatur." Dkt. 27 (Mem. in Supp. of MTD) at 22 n.9. As Defendants recognize, "detailed consideration of potential remedies is unnecessary in [resolving] this motion," id., and in conducting the Article III standing inquiry, the Court must assume that Plaintiffs will succeed on the merits of their claims—including their request for vacatur of the Jorjani Opinion, see, e.g., Scenic Am., Inc. v. U.S. Dep't of Transp., 836 F.3d 42, 55 (D.C. Cir. 2016). This is without prejudice, of course, to Defendants' litigating the appropriate remedy should Plaintiffs prevail on the merits.
The Court notes that Defendants' reading of Section 1508.18(b)(1) appears to be at odds with DOI's own regulations interpreting NEPA. One of those regulations provides that a DOI-proposed action "is subject to the procedural requirements of NEPA if it would cause effects on the human environment ... and is subject to bureau control and responsibility." 43 C.F.R. § 46.100(a). A subsequent regulation excludes "legal opinions," among other actions, from NEPA coverage. Id. § 46.210(d). Yet another regulation provides, however, that an agency action that ordinarily would be categorically excluded from NEPA coverage nonetheless is covered if it has "significant impacts on such natural resources" as "migratory birds." Id. § 46.215(b). As Defendants acknowledge, see Dkt. 50 (Reply in Supp. of MTD) at 18 n.9, the fact that DOI's regulations purport to categorically exclude "legal opinions" from NEPA coverage indicates that legal opinions can, even in DOI's view, qualify as "major Federal actions" that are subject to NEPA under the right circumstances. Defendants may be right that not every legal opinion so qualifies, but it appears the Jorjani Opinion may: the Audubon Plaintiffs have plausibly pleaded that the Opinion "cause[s] effects on the human environment," 40 C.F.R. § 46.100(a); see also supra Pt. II.B; the Opinion is undisputedly "subject to bureau control and responsibility," id.; and it appears to "[h]ave significant impacts on ... migratory birds," 40 C.F.R. § 46.215(b); see also supra Pt. II. The Court reserves a definitive decision on this issue until the parties more thoroughly brief it.
