Nat'l Res. Def. Council v. Zinke
| Decision Date | 28 September 2020 |
| Docket Number | 18-cv-6903 (AJN) |
| Parties | National Resource Defense Council, et al., Plaintiffs, v. Ryan Zinke, in his official capacity as Secretary of the Interior, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs in this case challenge an advisory committee chartered by the Department of Interior, the International Wildlife Council, under the Federal Advisory Committee Act. They allege that the Department failed to properly charter the Council, failed to balance its membership to represent divergent views, and failed to disclose myriad records, among other things. However, while this litigation was pending, the International Wildlife Council's charter lapsed, and the Council no longer exists. Defendants have thus moved to dismiss this case as moot. For the reasons that follow, the Court GRANTS Defendants' motion and dismisses this case for lack of subject-matter jurisdiction.
Many federal agencies rely upon advisory committees in regulating and policymaking. These committees are "a fixture in the Nation's Capital . . . addressing almost all imaginable topics, from national policy matters to technical or scientific issues." Cummock v. Gore, 180 F.3d 282, 285-86 (D.C. Cir. 1999). The Government "draw[s] heavily upon the advisory committee process as a part of its political machinery." Id. at 286.
Almost a half-century ago, Congress grew concerned with advisory committees and sought to reign them in. Advisory committees were viewed as being too costly yet producing little gain, leading to "the wasteful expenditure of public funds for worthless committee meetings and biased proposals." Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 453-54 (1989). Congress also perceived that some agencies were creating advisory committees "without adequate justification." People for Ethical Treatment of Animals v. Barshefsky, 925 F. Supp. 844, 847 (D.D.C. 1996). And Congress worried that such committees "were often dominated by representatives of industry and other special interests seeking to advance their own agendas." Cummock, 180 F.3d at 284-85 (citing H.R. REP. NO. 92-1017 (1972)). Yet Congress also recognized that such committees were a useful "means of furnishing expert advice, ideas, and diverse opinions to the Federal Government." Id. (citation omitted). In 1972, Congress thus passed the Federal Advisory Committee Act, seeking to ameliorate some of these ills while still retaining and even amplifying advisory committees' utility. See Public Citizen, 491 U.S. at 445-46.
For purposes of this opinion, it is useful to divide FACA's many requirements into two groups. FACA contains a records requirements, which concerns public access to committee documents. Unless a Freedom of Information Act exception applies, the statute requires that "the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying . . . until the advisory committee ceases to exist." 5 U.S.C. App. 2 § 10(b). And FACA contains many non-records requirements. Some ofthese place limits and how and when an agency can create an advisory committee in the first place. See id. § 9(a)(2). Others require advisory committees to file a charter, give advance notice of meetings, and hold public meetings. Id. §§ 9(c), 10(a), 10(c). And others still require advisory committees to be "fairly balanced in terms of the points of view represented and the functions to be performed," id. § 5(b)(2), and "not be inappropriately influenced by the appointing authority or by any special interest," id. § 5(b)(3).
In November 2017, the Department of Interior announced the establishment of the International Wildlife Conservation Council (IWCC), an advisory committee. See 82 Fed. Reg. 51,857, 51,857-58 (Nov. 8. 2017). The agency's notice in the Federal Register stated that the Council would advise the Government on "increasing public awareness domestically regarding the conservation, wildlife law enforcement, and economic benefits that result from U.S. citizens traveling to foreign nations to engage in hunting." Id. Plaintiffs refer to this activity as trophy hunting. And the Council was designed to "advise the Secretary on the benefits international hunting has on foreign wildlife and habitat conservation, anti-poaching and illegal wildlife trafficking programs, and other ways in which international hunting benefits human populations in these areas." Id.
The Council held five meetings in 2018 and 2019. Administrative Record (A.R.), Dkt. No. 69, at 327, 520, 830, 2136, 2763. These meetings were generally open to the public, and their agendas and minutes about the meetings are now publicly available. See A.R. 325-2981. The Council also established four subcommittees, covering topics from conservation to animal trafficking. A.R. 515-16, 659; Alvarez Declaration, Dkt. No. 77, ¶ 9.
Plaintiffs are non-profit organizations working on issues related to wildlife conservation and the environment. Complaint, Dkt. No. 1, ¶¶ 18-23. In August 2018, they filed this action, alleging that the Interior Department and several of its leaders had violated FACA in establishing and operating the Council. Specifically, Plaintiffs alleged that Defendants violated FACA's requirements that certain formal findings be made to establish a committee, that the committee's work be transparent and public, that the committee's membership be balanced, and that the committee establish safeguards against conflicts of interest. Compl. ¶¶ 99-112. Because FACA does not create a private right of action, Plaintiffs bring suit under the Administrative Procedure Act (APA), alleging that Defendants have acted "in a manner that is arbitrary, capricious, and contrary to law." 5 U.S.C. § 706; see also In re Cheney, 334 F.3d 1096, 1113 n.1 (D.C. Cir. 2003) (Randolph, C.J., dissenting) (). The Court has jurisdiction under the APA to review final agency action for which there is no other adequate remedy, as both parties agree is the case here. Id.
A few months after the case was filed, Defendants moved to dismiss. Dkt. No. 40. The Court granted the motion in part and denied it part, narrowing the claims which could proceed. See National Resources Defense Council v. Department of Interior, No. 18-cv-6903 (AJN), 2019 WL 4601722 (S.D.N.Y. Sept. 23, 2019).
Three months after the Court's motion-to-dismiss decision, the Defendants filed and served a certified administrative record. Dkt. No. 69. Per the briefing schedule the parties had agreed upon, Plaintiffs were to move for summary judgment in January 2020. However, the month before, on December 19, 2019, the IWCC ended. According to its charter, the Council was due to terminate two years after it was created unless it was renewed, as required by FACA.A.R. 23 ( ); see 5 U.S.C. app. II § 14(a)(2)(A) (); 41 C.F.R. § 101-6.1015(a) (). The Council was not renewed, so its charter expired in December 2019.
Because the Council's charter has now lapsed and the Council no longer exists, Plaintiffs recognize that "the Council can no longer meet or take any action whatsoever." Pl. Br., Dkt. No. 74, at 10; see also A.R. 23 (). Plaintiffs nonetheless filed for summary judgment on their FACA claims. Dkt. No. 73. Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(h)(3), arguing that the case is moot as the Council's lapse has ended any lingering case or controversy between the parties. Plaintiffs' motion for summary judgment and Defendants' motion for dismissal are now before the Court.
"If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Article III of the Constitution limits the jurisdiction of federal courts to the adjudication of actual, ongoing cases or controversies. This structural limitation "gives rise to the doctrines of standing and mootness." Foretich v. United States, 351 F.3d 1198, 1210 (D.C. Cir. 2003). Article III requires that the Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation omitted). To satisfy the requirementof a case or controversy, "the plaintiff must have suffered or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. (internal quotation omitted). When the injury dissipates, a case has "lost its character as a present, live controversy of the kind that must exist if [the court is] to avoid advisory opinions on abstract questions of law." Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (internal quotation omitted). At this point, the case becomes moot. Id.; see also U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980). The Supreme Court has thus described mootness as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the...
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