Wednesday, March 6, 2019 — On April 10, 2018, the Kansas Natural Resource Coalition filed suit against the U.S. Fish and Wildlife Service for failing to submit its Policy for Evaluating Conservation Efforts (PECE Rule) for congressional review under the mandates of the Congressional Review Act. The following day, Tugaw Ranches, LLC, located in Idaho, filed suit against the Department of the Interior Bureau of Land Management and the U.S. Department of Agriculture’s U.S. Forest Service for failing to submit four records of decision (RODs) for land use plan amendments implementing the agencies’ sage-grouse plans.
The agencies filed motions to dismiss both suits for lack of jurisdiction. On November 29, 2018, the United States District Court for the District of Idaho heard oral argument and took the government’s motion under advisement.
On February 25, 2019, Chief U.S. District Court Judge David Nye denied the government’s motion to dismiss, finding that there is no clear prohibition of judicial review of agency action under the CRA and that the court has jurisdiction to hear the claims at issue in the Tugaw Ranches case.
In his ruling, Judge Nye stated that “Reading judicial review out of the CRA foils its primary purpose. Congress enacted the APA and CRA to act as a check and balance on agency action. Reading the statute in such a way as to foreclose that option—even more specifically to foreclose that option just for the agencies—arbitrarily gives said agencies more power than originally intended.”
Judge Nye’s decision is much more significant than typical decisions on motions to dismiss because once judicial review is established, CRA claims are clear-cut: (1) is the rule excluded from the CRA’s reach?; and (2) was it submitted for congressional review? In Tugaw Ranches, the answer to both questions is “no.” In KNRC’s PECE case, the answers are also both “no.”
So, on February 27th, KNRC’s attorneys filed a notice of supplemental authority to the U.S. District Court for the District of Kansas, where our PECE case is being heard, to assist the court in its upcoming decision on the government’s substantially identical motion to dismiss. Judge Nye’s very thorough review of the law and statements of congressional intent will undoubtedly be helpful to the court hearing KNRC’s case.
We invite you to read the notice of supplemental authority and Judge Nye’s decision.