National Association of Home Builders v. Salazar , 827 F. Supp. 2d 1 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL ASSOCIATION OF HOME :
BUILDERS, :
:
Plaintiff, :
:
v. : Civil Action No. 10-832 (GK)
:
KEN SALAZAR, Secretary of the :
Interior, and U.S. FISH AND :
WILDLIFE SERVICE, :
:
Defendants. :
MEMORANDUM OPINION
Plaintiff National Association of Home Builders (“NAHB”)
brings this suit against Defendants, Secretary of the Interior Ken
Salazar (the “Secretary”) and the U.S. Fish and Wildlife Service
(“FWS”), for declaratory and injunctive relief, pursuant to the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 7061 et seq., and
the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g). NAHB
challenges the validity of a memorandum drafted by the Solicitor of
the Department of the Interior that interprets a phrase in the
definitions of “endangered species” and “threatened species” under
the ESA.
This matter is now before the Court on Plaintiff’s Request for
Entry of Final Judgment (“Pl.’s Request”) [Dkt. No. 21], and
Defendants’ Second Motion to Dismiss (“Defs.’ Mot.”) [Dkt. No. 22].
Upon consideration of the Motions, Oppositions, and Replies, and
the entire record herein, and for the reasons stated below, the
Court finds that NAHB’s claims are now moot, and therefore
Plaintiff’s Request for Entry of Final Judgment is denied and
Defendants’ Second Motion to Dismiss is granted.
I. BACKGROUND1
The ESA is the “‘most comprehensive legislation for the
preservation of endangered species ever enacted by any nation.’”
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687, 698 (1995) (quoting Tennessee Valley Auth. v. Hill,
437 U.S. 153, 180 (1978)). When Congress enacted the statute in
1973, it intended to bring about the “better safeguarding, for the
benefit of all citizens, [of] the Nation’s heritage in fish,
wildlife, and plants.” 16 U.S.C. § 1531(a)(5). Having found that a
number of species of fish, wildlife, and plants in the United
States had become extinct “as a consequence of economic growth and
development untempered by adequate concern and conservation,”
Congress enacted the ESA in order to “provide a means whereby the
ecosystems upon which endangered and threatened species depend may
be conserved, [and] to provide a program for the conservation of
such endangered species.” Id. §§ 1531(a)(1), (b).
1
For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, unless otherwise noted, the facts set forth
herein are taken from the Complaint.
2
The ESA imposes certain responsibilities on the Secretary of
the Interior, who has delegated day-to-day authority for its
implementation to FWS. See 16 U.S.C. § 1531(b); 50 C.F.R. §
402.01(b). The ESA’s protection of a species and its habitat is
triggered only when FWS “lists” a species in danger of becoming
extinct as either “endangered” or “threatened.” See 16 U.S.C. §
1533.2A species is “endangered” when it is in “danger of extinction
throughout all or a significant portion of its range.” 16 U.S.C.
§ 1532(6).3 On March 16, 2007, the then Solicitor for the
Department of the Interior, David Longly Bernhardt, issued a
memorandum defining “a significant portion of its range.” Mem. M-
37013 (March 16, 2007) (the “SPR Memorandum”) [Dkt. No. 9-2].
According to NAHB, the SPR Memorandum improperly “allows the
Secretary to list a population of a species as endangered or
threatened under the ESA irrespective of whether that population
consists of a species of vertebrate fish or wildlife and whether it
qualifies as a distinct population segment” under previous policy.
Compl. ¶ 38 [Dkt. No. 1].
2
The Act defines a “species” as “any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.” Id. § 1532(16).
3
When a species is “likely to become an endangered species
within the foreseeable future,” the statute defines it as
“threatened.” Id. § 1532(20).
3
On May 19, 2010, NAHB filed its Complaint. It alleges that
Defendants have violated both the APA and ESA by failing to issue
a notice of proposed rulemaking in the Federal Register and failing
to provide interested persons an opportunity to comment before
publishing the SPR Memorandum. NAHB also alleges that the
interpretation of a “significant portion of its range” embodied in
the SPR memorandum was in excess of the Secretary’s statutory
authority and was arbitrary, capricious, or otherwise not in
accordance with law. NAHB seeks a declaratory judgment that
Defendants’ issuance of the SPR Memorandum violated the APA and
ESA. NAHB further requests an order vacating the Memorandum and
enjoining Defendants from applying its interpretation when
determining a species’ eligibility for listing as endangered or
threatened.
This case is not the only one in which the SPR Memorandum has
played a central role. According to NAHB, FWS has applied the SPR
Memorandum more than twenty-five times when considering whether the
range of a species or a portion of its range should be listed or
delisted under the ESA. Pl.’s Opp’n 20 [Dkt. No. 25]. As a result
of lawsuits challenging these decisions, two district courts have
now rejected the SPR Memorandum’s interpretation, as applied to
specific species. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d
1207, 1218-19 (D. Mont. 2010); WildEarth Guardians v. Salazar, No.
CV-09-00574-PHX-FJM, 2010 WL 3895682, at *3-6 (D. Ariz. Sept. 30,
4
2010). The SPR Memorandum is also involved in two other cases, not
including this one. Center for Native Ecosystems v. Salazar, No.
09-cv-01463 (JLK) (D. Colo.);4 Center for Biological Diversity v.
Salazar, No. 09-cv-2233 (PLF) (D.D.C.).
In response to these lawsuits, the current Solicitor of the
Department of the Interior, Hilary C. Tompkins, announced, on May
4, 2011, that she was withdrawing the SPR Memorandum. Mem. M-37024
(May 4, 2011) (the “Withdrawal Memorandum”), Ex. B to Pl.’s Request
[Dkt. No. 21-1]. In the Withdrawal Memorandum, the Solicitor stated
that the SPR Memorandum was withdrawn in order “to facilitate FWS’s
review of the SPR phrase and issuance of new guidance.” Id.On May 5, 2011, the parties jointly informed the Court that
the SPR Memorandum had been withdrawn and asked the Court to cancel
a scheduled motion hearing on Defendants’ first Motion to Dismiss.
Notice of Withdrawal of Challenged Memorandum [Dkt. No. 17]. After
nearly two months of negotiation, the parties informed the Court
that they could not reach a settlement and that they would file
renewed dispositive motions. Stipulated Briefing Schedule and
Proposed Order (July 1, 2011) [Dkt. No. 19].
On July 7, 2011, NAHB filed its Request for Entry of Final
Judgment. On July 11, 2011, Defendants filed their second Motion to
4
On July 7, 2011, Center for Native Ecosystems was remanded
to FWS after the SPR Memorandum was withdrawn and the species in
question was “delisted” as threatened. —F. Supp. 2d—, 2011 WL
2646515, at *6 (D. Colo. July 7, 2011).
5
Dismiss. On August 5, 2011, Defendants filed an Opposition to
NAHB’s Request for Final Judgment (“Defs.’ Opp’n”) [Dkt. No. 23].
On August 18, NAHB filed both a Reply to Defendants’ Opposition
(“Pl.’s Reply”) [Dkt. No. 24] and an Opposition to Defendants’
Motion to Dismiss (“Pl.’s Opp’n”) [Dkt. No. 25]. Finally, on
September 6, Defendants filed a Reply to NAHB’s Opposition to the
Motion to Dismiss (“Defs.’ Reply”) [Dkt. No. 26].
II. STANDARD OF REVIEW
Under Rule 12(b)(1), Plaintiff bears the burden of proving by
a preponderance of the evidence that the Court has subject matter
jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932 (D.C. Cir.
2008). In reviewing a motion to dismiss for lack of subject matter
jurisdiction, the Court must accept as true all of the factual
allegations set forth in the Complaint; however, such allegations
“will bear closer scrutiny in resolving a 12(b)(1) motion than in
resolving a 12(b)(6) motion for failure to state a claim.” Wilbur
v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and
quotations omitted). The Court may consider matters outside the
pleadings. See Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,
197 (D.C. Cir. 1992). The Court may also rest its decision on its
own resolution of disputed facts. Id.III. ANALYSIS
Although NAHB seeks an immediate judgment on the merits, the
threshold and dispositive question now before the Court is whether
6
the withdrawal of the SPR Memorandum moots NAHB’s claims.
Defendants argue that, because they have withdrawn the SPR
Memorandum and promised to provide a period for notice and comment
before issuing any new policy, “there is no longer any relief for
the Court to grant even if the plaintiff were to prevail on its
claim.” Defs.’ Mot. 6. Therefore, “[t]here is no longer a live
controversy in this case.” Id.“The mootness doctrine, deriving from Article III, limits
federal courts to deciding ‘actual, ongoing controversies.’” Clarke
v. United States, 915 F.2d 699, 700–01 (D.C. Cir. 1990), quoting
Honig v. Doe, 484 U.S. 305, 317 (1988). Federal courts have “no
authority ‘to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot
affect the matter in issue in the case before it.’” Church of
Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting Mills
v. Green, 159 U.S. 651, 653 (1895)).
Therefore, “[i]f it becomes ‘impossible for the court to grant
any effectual relief whatever to a prevailing party’ on a
particular claim, that claim must be dismissed.” Theodore Roosevelt
Conservation P’ship v. Salazar, 661 F.3d 66, 79 (D.C. Cir. 2011)
(quoting Church of Scientology, 506 U.S. at 12). “Even where
litigation poses a live controversy when filed, the doctrine
requires a federal court to refrain from deciding it if ‘events
have so transpired that the decision will neither presently affect
7
the parties’ rights nor have a more-than-speculative chance of
affecting them in the future.’” Clark, 915 F.2d at 701 (quoting
Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir.
1990)).
NAHB does not contest that the withdrawal of the SPR
Memorandum comes within the ambit of the mootness doctrine. Rather,
NAHB contends that its claims are saved by the voluntary cessation
doctrine, which provides that voluntary cessation of allegedly
illegal conduct typically does not moot a case. Pl.’s Opp’n 11.
NAHB is correct that, “[a]s a general rule, a defendant’s
‘voluntary cessation of allegedly illegal conduct does not deprive
[a court] of power to hear and determine the case.’” Am. Bar Ass’n
v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011) (quoting Cnty. of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979)). However, a court may
find that a defendant’s voluntary conduct has mooted the
controversy if “(1) there is no reasonable expectation that the
conduct will recur and (2) ‘interim relief or events have
completely and irrevocably eradicated the effects of the alleged
violation.’” Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449,
459 (D.C. Cir. 1998) (quoting Cnty. of Los Angeles v. Davis, 440
U.S. 625 (1979)); see also Nat’l Black Police Ass’n, et al. v.
District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)).
In short, the parties disagree on two issues: (1) whether
there is a reasonable expectation that Defendants will revive the
8
SPR Memorandum and (2) whether interim events have eradicated the
effects of the SPR Memorandum. Each will be addressed in turn.
A. Expectation that Conduct Will Recur
As an initial matter, the parties disagree about the burden
the Defendants must bear in demonstrating that the challenged
conduct is unlikely to recur. NAHB emphasizes that “a defendant
that voluntarily ceases activities challenged by the plaintiff, and
then moves to dismiss on the grounds of mootness, bears a ‘heavy
burden’ of proof to demonstrate that the challenged action will not
happen again.” Pl.’s Opp’n 14 (quoting Cmty. Hous. Trust v. Dep’t
of Cons. and Reg. Affairs, 257 F. Supp. 2d 208, 218 (D.D.C. 2003)).
Defendants, on the other hand, urge the Court to adopt the Eleventh
Circuit’s rule that “when the defendant is not a private citizen
but a government actor, there is a rebuttable presumption that the
objectionable behavior will not recur.” Troiano v. Supervisor of
Elections in Palm Beach, 382 F.3d 1276, 1283 (11th Cir. 2004)
(emphasis in original).5
5
The Fifth and Seventh Circuits have employed similar
presumptions. See Sossamon v. Lone Star State of Texas, 560 F.3d
316, 325 (5th Cir. 2009) (“courts are justified in treating a
voluntary governmental cessation of possibly wrongful conduct with
some solicitude . . . . Without evidence to the contrary, we assume
that formally announced changes to official governmental policy are
not mere litigation posturing.”); Fed’n of Adver. Indus.
Representatives, Inc. v. City of Chicago, 326 F.3d 924, 930 (7th
Cir. 2003) (“we have repeatedly held that the complete repeal of a
challenged law renders a case moot, unless there is evidence
creating a reasonable expectation that the City will reenact the
ordinance or one substantially similar.”).
9
Our own Court of Appeals has not spoken directly to this
issue. However, even in the absence of a formal presumption, it is
clear from precedent in this Circuit that Defendants have carried
their burden. In particular, our Court of Appeals has held that
“the mere power to reenact a challenged law is not a sufficient
basis on which a court can conclude that reasonable expectation of
recurrence exists. Rather, there must be evidence indicating that
the challenged law likely will be reenacted.” Nat’l Black Police
Ass’n, 108 F.3d at 349.
NAHB argues, in substance, that because Defendants have not
unequivocally foreclosed developing a similar policy in the future,
and because Defendants have not admitted culpability in this
proceeding, the Court should find that there is a reasonable
expectation that the challenged conduct will recur. Pl.’s Opp’n 11-
17. But these claims simply fail to satisfy the requirement that
there be some “evidence indicating that the challenged law likely
will be reenacted.” Nat’l Black Police Ass’n, 108 F.3d at 349.
Indeed, not only did the Solicitor withdraw the SPR Memorandum
to allow FWS to review the SPR phrase and issue new guidance, but
FWS has publicly stated that it “intends to publish shortly, for
notice and comment, a proposed joint policy regarding the
interpretation and implementation of the phrase ‘significant
portion of its range.’” Gray Wold Recovery and Delisting Questions
and Answers May, 2011, http://www.fws.gov/home/feature/2011/pdf
10
/Wolf_Actions_Faqs.pdf (last visited Dec. 5, 2011); see also Decl.
of Gary Frazier, July 8, 2011, ¶ 7 [Dkt. No. 22-2]. According to
Gary Frazier, the Assistant Director for Endangered Species at FWS,
a draft of this new “joint SPR Language” was approved by the
Department of the Interior on June 7, 2011. Decl. of Gary Frazier,
July 8, 2011, ¶ 8. As of July 8, 2011, that draft was being
reviewed by the Office of Management and Budget prior to
publication in the Federal Register and public review and comment.
Id.In light of this information, and contrary to NAHB’s claims,
it is quite clear that Defendants have in fact foreclosed the
possibility that the alleged procedural violations will recur. Nor
is there evidence that the challenged substantive policy will be
repromulgated. See Natural Res. Def. Council, Inc. v. United States
Nuclear Regulatory Comm’n, 680 F.2d 810, 814 n.8 (D.C. Cir. 1982)
(no reasonable expectation that illegal conduct will recur where
the defendant repromulgated the challenged rule with notice and
comment.). Therefore, there is no reasonable expectation that the
conduct will recur. Nat’l Black Police Ass’n, 108 F.3d at 349.
B. Effects of Withdrawn Policy
NAHB argues that “Defendants also fail to demonstrate that
withdrawal of the SPR Decision has completely and irrevocably
eradicated the effects of that unlawful decision on NAHB and its
members.” Pl.’s Opp’n 20. Specifically, NAHB contends that (1)
11
“Defendants have not addressed the effects of withdrawal of the SPR
Decision on those prior listing decisions that are currently in
force” and (2) “Defendants have not provided any irrevocable
assurance or taken any irrevocable action showing that FWS will
actually comply with the procedural requirements of the ESA and the
APA relating to their interpretation of the SPR Phrase.” Id. at 20-
21. NAHB’s second argument is nothing more than a reworded version
of its claims under the ‘likely to recur’ prong, and therefore can
be dismissed for the reasons given above.
NAHB’s first argument, namely that Defendants have not
revisited all of the prior listing decisions in which they cited
the SPR Memorandum, is similarly unconvincing. NAHB has made
crystal clear that it brings only a facial challenge to the SPR
Memorandum and seeks only declaratory and injunctive relief. Pl.’s
Request 7-8. NAHB has not actually alleged that any specific
listing or delisting is illegal, nor does the Court have any of the
facts or parties in the other SPR Memorandum-related cases before
it.6
6
In fact, Defendants point out “that the legal interpretation
of the SPR phrase affected a judicially reviewable listing
determination in only a handful of cases, where the Service
determined that there was a significant portion of the range where
the threat level was different from that for the rest of the
species.” Defs.’ Reply 7. Each of those rules has already been
vacated by court order. Id. (citing Center for Native Ecosystems,
—F. Supp. 2d—, 2011 WL 2646515; Defenders of Wildlife, 729 F. Supp.
2d 1207; WildEarth Guardians, 2010 WL 3895682).
12
Ample precedent demonstrates that a lawsuit seeking
declaratory and injunctive relief is moot when the challenged
policy is withdrawn. Pl.’s Request 2-3. As our Court of Appeals has
stated, “[i]n determining whether a request for declaratory relief
has become moot, ‘the question . . . is whether the facts alleged,
under all the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.’” Conyers v. Reagan, 765 F.2d 1124, 1128
(D.C. Cir. 1985) (quoting Preiser v. Newkirk, 422 U.S. 395, 402
(1975) (emphasis in Preiser)); see also Diffenderfer v. Cent.
Baptist Church of Miami, Florida, Inc., et al., 404 U.S. 412, 414-
15 (1972) (issuing a declaratory judgment that a repealed statute
is unconstitutional and an injunction against its application would
“of course [be] inappropriate now that the statute has been
repealed.”).
In this case, it is clear that granting the relief sought by
NAHB would require issuance an improper advisory opinion. “[W]hat
makes [a judicial pronouncement] a proper judicial resolution of a
‘case or controversy’ rather than an advisory opinion-is in the
settling of some dispute which affects the behavior of the
defendant towards the plaintiff.” Hewitt v. Helms, 482 U.S. 755,
761 (1987) (emphasis in original).
13
NAHB itself argues that “entry of judgment is necessary to
ensure that Defendants follow the procedural requirements of the
ESA and APA in [the future SPR decision] administrative
proceedings.” Pl.’s Request 7-8; Pl.’s Opp’n 22. Such a declaration
is not immediately necessary, Conyers, 765 F.2d at 1128, nor would
it “affect[] the behavior of the defendant towards the plaintiff.”
Hewitt, 482 U.S. 755. Simply put, NAHB’s request seeks nothing more
than an opinion advising Defendants how they should proceed in
future SPR language-related proceedings. These claims are not
proper for judicial resolution. Theodore Roosevelt Conservation
P’ship, 661 F.3d at 79 (refusing to grant relief for claimed
violations under one policy by invalidating an unchallenged
subsequent and superceding policy); Natural Res. Def. Council, 680
F.2d at 814-15 (“In effect, [plaintiff] seeks a declaration from
this court that the initial promulgation of the rule was unlawful,
an advisory opinion which federal courts cannot provide.”).
Furthermore, other judges in this District confronted with
similar facial challenges have held that the withdrawal of a law
eradicated its effects. See Daskalea v. Washington Humane Soc’y,
710 F. Supp. 2d 32, 40 (D.D.C. 2010) (“In the context of a facial
challenge to a statute, which seeks to have the statute ‘declared
unconstitutional and enjoined,’ this prong is generally satisfied
where-as a result of the enactment of the new legislation-the prior
version of the statute is ‘no longer in force’ and there is no
14
allegation that the pre-amendment provisions ‘continue to have any
residual effect.’”) (quoting Nat’l Black Police Ass’n, 108 F.3d at
350); Van Valin v. Gutierrez, 587 F. Supp. 2d 118, 120-21 (D.D.C.
2008) (“The rescission of the Final Rule has ‘completely and
irrevocably eradicated’ the effects of the alleged violations of
the Halibut Act and the APA.”).
In sum, by withdrawing the SPR Memorandum, Defendants have
indicated that they cannot and will not rely on it in any future
listing determination or related lawsuit. Thus, they have already
eradicated the effects of the alleged violation, and there is
nothing left for the Court to decide. Arizona Pub. Serv. Co. v.
EPA, 211 F.3d 1280, 1296 (D.C. Cir. 2000).
IV. CONCLUSION
NAHB brought this suit to strike down a policy and to obtain
a period for notice and comment on any replacement. FWS has now
withdrawn that policy, has stated that it will reassess it, and has
assured NAHB that it will receive its notice and comment period. A
court “can hardly order [the agency] to do something that it has
already done.” Natural Res. Def. Council, 680 F.2d at 814.
For the reasons set forth above, NAHB’s Request for Entry of
Judgment is denied and Defendants’ Motion to Dismiss is granted.
15
An Order will issue with this opinion.
/s/
December 8, 2011 Gladys Kessler
United States District Judge
Copies to: counsel of record via ECF
16