Natural Res. Def. Council v. Dep't of Interior

• Decision Date: 20 September 2019
• Docket Number: 18-CV-6903 (AJN)
• Citation: 410 F.Supp.3d 582
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. DEPARTMENT OF INTERIOR, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

410 F.Supp.3d 582

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,

v.DEPARTMENT OF INTERIOR, et al., Defendants.

18-CV-6903 (AJN)

United States District Court, S.D. New York.

Signed September 20, 2019

Filed September 23, 2019

Travis Annatoyn, Jeffrey Benjamin Dubner, Democracy Forward Foundation, Washington, DC, for Plaintiffs.

Jennifer Ann Jude, United States Attorney's Office, New York, NY, for Defendants.

OPINION & ORDER

ALISON J. NATHAN, District Judge:

Plaintiffs Natural Resources Defense Council, Center for Biological Diversity, Humane Society International, and Humane Society of the United States bring this action against Defendants, the Secretary of the Interior; the U.S. Department of the Interior ("Interior"); the U.S. Fish and Wildlife Service ("Fish and Wildlife"); the Director for Operations of Fish and Wildlife; and the Principal Deputy Director of Fish and Wildlife, all sued in their official capacities, alleging several violations of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. II §§ 1 - 15.

On November 14, 2018, Defendants filed a motion to dismiss the Complaint in this case pursuant to Rules 12(b)(1) and 12(b)(6). Dkt. No. 40. For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.

I. Background

The Court draws the following from the allegations in the Plaintiffs' complaint, which are taken as true at this stage of the litigation. See Koch v. Christie's Int'l PLC , 699 F.3d 141, 145 (2d Cir. 2012).

A. The Federal Advisory Committee Act

Congress enacted FACA to "ensure that new advisory committees be established only when essential ... that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature." Pub. Citizen v. United States Dep't of Justice , 491 U.S. 440, 446, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (citing 5 U.S.C. App. II § 2(b) ). FACA "was enacted to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals." Id. at 453, 109 S.Ct. 2558. FACA applies to any "advisory committee," which is defined as "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof" that is "established" by statute, or "established or utilized" by the President or by one or more federal agencies, "in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. App. II § 3(2).

Unless "specifically authorized by statute or by the President," an advisory committee cannot be established without an agency head "determin[ing] as a matter of formal record" that the committee is "in the public interest in connection with the performance of duties imposed on that agency by law." 5 U.S.C. App. II § 9(a)(2). As to the composition of such a committee, "the membership of [an] advisory committee [must] be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee." 5 U.S.C. App. II § 5(b)(2), (c). Relatedly, a committee's charter must "contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment[.]" 5 U.S.C. App. II § 5(b)(3). Congress tasked the General Services Administration ("GSA") with prescribing regulatory guidelines for advisory committees. See 5 U.S.C. App. II § 7(c).

In addition, FACA requires a committee to almost always provide "timely notice" of its meetings, id. § 10(a)(2), and generally allow interested persons to "attend, appear before, or file statements with [the] advisory committee," id. § (a)(3). Congress also required every advisory committee to publicize "the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, [and] other documents ... made available to or prepared for" the committee. 5 U.S.C. App. II § 10(b).

B. The International Wildlife Conservation Council

On November 8, 2017, Interior announced the establishment of the International Wildlife Conservation Council ("IWCC" and "the Council"), an advisory committee, via a notice in the Federal Register. Compl. ¶ 67; 82 Fed. Reg. 51,857, 51,857 -58 (Nov. 8, 2017). The IWCC was chartered to "provide advice and recommendations to the Federal Government, through the Secretary ... focused on increased public awareness domestically regarding the conservation, wildlife law enforcement, and economic benefits that result from United States citizens traveling to foreign nations to engage in hunting," and to "advise the Secretary on the benefits international hunting has on foreign wildlife and habitat conservation, anti-poaching and illegal wildlife trafficking programs, and [on] other ways in which international hunting benefits human populations in these areas." Compl. ¶ 68 (citing International Wildlife Conservation Council Charter ("Charter"), available at https://www.fws.gov/iwcc/pdf/international-wildlife-conservation-council-charter.pdf, ¶ 3).

The Council's Charter calls for the Council to be constituted by no more than 18 members, comprised of representatives from the Departments of the Interior and State, as well as "wildlife and habitat conservation/management organizations," "U.S. hunters actively engaged in international and/or domestic hunting conservation," "[t]he firearms or ammunition manufacturing industry," "[t]he archery and/or hunting sports industry," and "[t]he tourism, outfitter, and/or guide industries related to international hunting." Compl. ¶ 73 (citing Charter ¶ 12(b)).

Prior to the enactment of the IWCC, Interior had previously relied on two federal advisory committees to provide the agency with advice on certain aspects of its conservation mandate: the Wildlife and Hunting Heritage Conservation Council ("Wildlife and Hunting Council") and the Advisory Council on Wildlife Trafficking ("Wildlife Trafficking Council"). Compl. ¶ 54. Secretary Zinke allowed both of these committees' charters to lapse. See Compl. ¶ 67.

C. Plaintiffs' Lawsuit

Plaintiffs are non-profit organizations that work on issues related to wildlife conservation and the environment. See Compl. ¶¶ 18-23. Their complaint alleges four violations of FACA. See Compl. ¶¶ 99-112. Specifically, Plaintiff charges that Defendants have violated: FACA's requirement that certain formal findings must be made to establish a committee (Count One); various transparency and public access requirements (Count Two); the requirement that advisory committee membership be fairly balanced (Count Three), and the requirement that appropriate safeguards against conflicts of interest must be established (Count Four). FACA does not create a private cause of action. Accordingly, Plaintiffs seek judicial review pursuant to Section 702 of the APA, which provides that a "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702.

D. Procedural Background

On November 14, 2018, Defendants filed a motion to dismiss. Dkt. No. 40. On December 7, 2018, Plaintiffs filed an opposition to Defendants' motion. Dkt. No. 45. The case was stayed from December 27, 2018 until January 28, 2019, due to a lapse in Government funding. After the stay was lifted, on February 8, 2019, Defendants filed a reply memorandum of law in further support of their motion. Dkt. No. 52. On February 21, 2019, Plaintiffs filed a sur-reply in opposition to Defendants' motion. Dkt. No. 55. The Court held oral argument on June 3, 2019.

II. Legal Standards

A. Rule 12(b)(1)

A motion brought under Federal Rule of Civil Procedure 12(b)(1) challenges the Court's subject matter jurisdiction to hear the case. See Fed. R. Civ. P. 12(b)(1). Pursuant to Rule 12(b)(1), dismissal for lack of subject matter jurisdiction is appropriate if the Court determines that it lacks the constitutional or statutory power to adjudicate the case. See Makarova v. U.S. , 201 F.3d 110, 113 (2d Cir. 2000). "In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Fountain v. Karim , 838 F.3d 129, 134 (2d Cir. 2016) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) ). A court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [the Court] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Schs. , 386 F.3d 107, 110 (2d Cir. 2004).

B. Rule 12(b)(6)

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim achieves "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plausibility is "not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully," id. , and if plaintiffs cannot "nudge[ ] their claims across the line from conceivable to plausible, their complaint must be dismissed," Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "Plausibility ... depends on a host of considerations: the full factual picture...