League of Conservation Voters v. Trump

• Citation: 303 F.Supp.3d 985
• Decision Date: 19 March 2018
• Docket Number: Case No. 3:17–cv–0101–SLG
• Parties: LEAGUE OF CONSERVATION VOTERS, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants.
• Court: U.S. District Court — District of Alaska

303 F.Supp.3d 985

LEAGUE OF CONSERVATION VOTERS, et al., Plaintiffs,

v.Donald J. TRUMP, et al., Defendants.

Case No. 3:17–cv–0101–SLG

United States District Court, D. Alaska.

Signed March 19, 2018

Eric P. Jorgensen, Earthjustice (Juneau), Juneau, AK, Erik Clifford Grafe, Earthjustice (Anch), Anchorage, AK, Nancy S. Marks, Pro Hac Vice, Natural Resources Defense Council (NY), New York, NY, Nathaniel S.W. Lawrence, Pro Hac Vice, Natural Resources Defense Council (WA), Olympia, WA, for Plaintiffs.

Eric Grant, Sarah Dale Himmelhoch, U.S. Department of Justice/ ENRD/ EES, Washington, DC, for Defendants.

ORDER RE MOTIONS TO DISMISS

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

Before the Court are the following motions: Defendants Donald J. Trump, Ryan Zinke, and Wilbur Ross's Motion to Dismiss at Docket 12¹ ; Intervenor–Defendant American Petroleum Institute's Motion to Dismiss at Docket 25; and Intervenor–Defendant State of Alaska's Motion to Dismiss at Docket 34. The motions have been fully briefed.² Oral argument on the motions was held on November 8, 2017.³ For the following reasons, the motions will be denied.

BACKGROUND

For purposes of the motions to dismiss, the facts are briefly summarized as they are alleged in Plaintiffs' Complaint:

The Arctic Ocean includes the Chukchi and Beaufort Seas, which are home to a wide array of wildlife, including polar bears, walruses, whales, seals, other mammals, birds, and fish, some of which are endangered.⁴ The Atlantic Ocean is also inhabited by various marine life and contains diverse habitats, including methane-dependent organisms that live in the undersea canyons found off the Atlantic continental shelf.⁵ Businesses along the U.S. Atlantic coast are dependent on these habitats for tourism and commercial fishing.⁶

One of the reasons that Congress enacted the Outer Continental Shelf Lands Act ("OCSLA") was to provide protection to the environment.⁷ Section 12(a) of OCSLA provides that "[t]he President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf."⁸ For the areas that are not withdrawn, OCSLA provides a process for oil and gas development activities, which includes the following: "(1) formulation of a five year leasing plan ...; (2) lease sales; (3) exploration by the lessees; (4) development and production."⁹ Seismic surveying can occur before any of these stages and typically occurs two to four years prior to lease sales in order to locate areas with oil and gas prospects.¹⁰

On January 27, 2015, acting pursuant to Section 12(a) of OCSLA, President Obama withdrew coastal areas in the Arctic's Beaufort and Chukchi Seas from oil and gas leasing.¹¹ President Obama cited as reasons for this action the importance of these areas to subsistence for Alaska Natives as well as the need to protect marine mammals and other wildlife.¹² On December 20, 2016, again acting pursuant to Section 12(a) of OCSLA, President Obama withdrew another large portion of the U.S. Arctic Ocean and areas of the Atlantic Ocean from future oil and gas leasing.¹³ The combined withdrawals in the Arctic and Atlantic Oceans totaled 128 million acres.¹⁴

On April 28, 2017, President Trump issued Executive Order 13795 entitled "Implementing an America–First Offshore Energy Strategy."¹⁵ The Executive Order reverses President Obama's January 27, 2015 and December 20, 2016 withdrawals in the Arctic and Atlantic Oceans. The stated purpose of the order is to encourage energy exploration and production of the outer continental shelf. On April 29, 2017, the Secretary of the Interior issued an order implementing the Executive Order, calling for expedited consideration of seismic permitting applications for the Atlantic Ocean.¹⁶

There is industry interest in oil and gas activities in the Arctic and Atlantic Oceans, including industry groups expressing interest in conducting seismic surveys in those oceans. After the President issued the Executive Order, one seismic industry trade group called for seismic surveying in the previously withdrawn areas to proceed "without delay."¹⁷ Several seismic operations companies have applied for permits to conduct "deep-penetration seismic surveys."¹⁸

Seismic surveys use loud, frequent sound pulses to map the sea floor in order to identify potential oil and gas deposits.¹⁹ Plaintiffs maintain that these pulses are harmful to marine mammals as well as fish and shellfish, causing these animals to suffer loss of hearing and sensory capabilities, which could result in death.²⁰ In 2012, the National Marine Fisheries Service estimated that a two-month-long seismic survey would disrupt 60,000 ringed seals and 4,600 beluga whales in the Arctic Ocean.²¹

On May 3, 2017, Plaintiffs brought this action, which challenges Executive Order 13795. Plaintiffs include the following organizations: League of Conservation Voters, Natural Resources Defense Council, Sierra Club, Alaska Wilderness League, Defenders of Wildlife, Northern Alaska Environmental Center, Resisting Environmental Destruction on Indigenous Lands, Center for Biological Diversity, Greenpeace, Inc., and The Wilderness Society.²²

Plaintiffs allege that "President Trump acted in excess of his authority under Article II of the U.S. Constitution and intruded on Congress's non-delegated exclusive power under the Property Clause, in violation of the doctrine of separation of powers."²³ Plaintiffs also allege a cause of action for statutory ultra vires action, alleging that the President "lacks authority to reverse or undo Section 12(a) withdrawals" and "[n]either OCSLA nor any other statute authorizes the President to re-open for disposition areas withdrawn under OCSLA Section 12(a)."²⁴ Plaintiffs filed suit against President Donald J. Trump, who issued the Executive Order, Ryan Zinke, the Secretary of the Interior, who administers and implements OCSLA, and Wilbur Ross, Secretary of Commerce, who has the responsibility for administering and implementing the Marine Mammal Protection Act and the Endangered Species Act (collectively the "Federal Defendants").²⁵ The Federal Defendants are all sued in their official capacities. American Petroleum Institute ("API") intervened as a national trade association of the oil and natural gas industry.²⁶ The State of Alaska also intervened, asserting that some "State offshore land within the coastal zone of the Beaufort Sea is available for oil and gas leasing[.]"²⁷

LEGAL STANDARDS

Federal Defendants and the Intervenors all seek dismissal of Plaintiffs' Complaint under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

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.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 The plaintiff has the burden of establishing the elements of Article III standing.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

Plaintiffs assert that this Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1361.⁴⁰

DISCUSSION

Federal Defendants move to dismiss Plaintiffs' Complaint for the following reasons: (1) the Federal Defendants are immune from suit under sovereign immunity; (2) Plaintiffs do not have a private right of action; (3) a court cannot issue declaratory relief against the President of the United States; and (4) Plaintiffs lack Article III standing. API asserts in its motion to dismiss that the Court lacks jurisdiction to hear this case under OCSLA. The State of Alaska incorporates the arguments made by both parties in its motion to dismiss.

I. Sovereign Immunity

Federal Defendants first assert that "the United States is immune from suit except to the extent Congress unequivocally and expressly waives that immunity" and Plaintiffs have not shown that their action falls within a waiver of sovereign immunity.⁴¹

Generally, when an individual brings a lawsuit against the government, the plaintiff must obtain a waiver of the government's sovereign immunity, which must be expressed in statutory text.⁴² Federal Defendants assert that the sovereign immunity waiver set forth in § 702 of the Administrative Procedure Act does not apply to this case "because the President is not an ‘agency’ and thus his actions are not reviewable under the APA."⁴³ Although Federal Defendants are correct in that Plaintiffs are not proceeding under that statute, the United States Supreme Court has held that there are circumstances where the...