Petition for Writ of Certiorari — Kansas Natural Resource Coalition, Petitioner v. Department of the Interior, et al.

Supreme Court briefFeb 25, 2021

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No. ___________

In The

Supreme Court of the United States

____________________

KANSAS NATURAL RESOURCE COALITION,

Petitioner,

UNITED STATES

DEPARTMENT OF INTERIOR; et al.,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

JONATHAN WOOD

JEFFREY W. MCCOY

Counsel of Record

CALEB R. TROTTER

TODD GAZIANO

Pacific Legal Foundation

930 G Street

3100 Clarendon Blvd.,

Sacramento, California 95814

Suite 610

Telephone: (916) 419-7111

Arlington, VA 22201-5330 JMccoy@pacificlegal.org

Telephone: (202) 888-6881 CTrotter@pacificlegal.org

JWood@pacificlegal.org

TGaziano@pacificlegal.org

KENNETH W. ESTES

Calihan Law Firm

P.O. Box 1016

Garden City, KS 67846

Telephone: (620) 276-2381

kestes@calihanlawfirm.com

Counsel for Petitioner

QUESTIONS PRESENTED

To ensure democratic accountability over the

administrative state and respect for the separation of

powers, the Congressional Review Act (CRA) provides

that no agency rule can take effect until the agency

submits it to Congress for review. 5 U.S.C. § 801(a)(1).

The Department of the Interior has violated the CRA

by withholding from Congress a rule encouraging

voluntary conservation of wildlife. Kansas Natural

Resource Coalition (KNRC) has developed a

conservation plan for the lesser prairie chicken that

relies on the unsubmitted rule to incentivize

landowner participation. KNRC timely challenged

Interior’s CRA violation, alleging a procedural injury

affecting KNRC’s interest in the species, its

conservation plan, and the proper consideration of

that plan in Interior’s upcoming decision whether to

list the species under the Endangered Species Act.

Contrary to decisions of this Court and several other

circuits, a panel of the Tenth Circuit held, over a

dissent, that KNRC lacks standing because the

outcome of that listing decision is uncertain and that

agency violations of the CRA are not reviewable.

The questions presented are:

1) Whether a party vindicating a procedural

injury lacks standing unless it can establish with

certainty that procedural compliance would change

the outcome of subsequent agency action.

2) Whether, under the strong presumption

favoring judicial review of agency action, agency

violations of the CRA’s rule-submission requirement

are subject to judicial review.

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENT

Petitioner, which was Plaintiff-Appellant below,

is Kansas Natural Resource Coalition (KNRC), a

nonprofit membership organization representing

Kansas counties on conservation and natural resource

issues. It is not a publicly traded corporation, issues

no stock, and has no parent corporation. No publicly

held corporation holds more than a 10% ownership in

the organization.

Respondents, who were Defendants-Appellees

below, are: the U.S. Department of the Interior; Scott

de la Vega, in his official capacity as Acting Secretary

of the Interior; the U.S. Fish and Wildlife Service; and

Martha Williams, in her official capacity as Principal

Deputy Director of the U.S. Fish and Wildlife Service.

RULE 14.1(b)(iii) STATEMENT

The proceedings in the district court and Tenth

Circuit identified below are directly related to the

above-captioned case in this Court.

Kansas Natural Resource Coalition v. U.S.

Department of the Interior, 382 F. Supp. 3d 1179 (D.

Kan. 2019).

Kansas Natural Resource Coalition v. United

States Department of Interior, 971 F.3d 1222 (10th

Cir. 2020).

Kansas Natural Resource Coalition v. United

States Department of Interior, No. 19-3108 (10th Cir.).

The Tenth Circuit denied Appellant’s petition for

panel rehearing en banc on October 19, 2020.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT ............ ii

RULE 14.1(b)(iii) STATEMENT ................................ ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS AT ISSUE.................... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE.................................... 3

A. The Congressional Review Act...................... 3

B. The Policy for Evaluating Conservation

Efforts When Making Listing Decisions....... 5

C. The Lesser Prairie Chicken and KNRC’s

Conservation Plan ......................................... 6

D. Proceedings Below ......................................... 9

REASONS FOR GRANTING THE PETITION ....... 12

The Tenth Circuit Resolved an Important

Standing Question Contrary to Decisions

of This Court and Other Circuits .................... 12

A. The Tenth Circuit’s Decision Is

Contrary to This Court’s Cases ................... 13

B. The Tenth Circuit’s Decision

Conflicts With Decisions of at

Least Four Other Circuits ........................... 15

C. The Tenth Circuit’s Approach

Is Unworkable ............................................. 18

II. The Tenth Circuit’s Holding That the

CRA Precludes Judicial Enforcement

Merits Review .................................................. 19

A. The Tenth Circuit’s Relegation of

the Presumption Conflicts With

This Court’s Decisions and Those

of Other Circuits .......................................... 21

The Tenth Circuit’s approach is

contrary to this Court’s precedents ...... 21

The Tenth Circuit’s holding

that the presumption applies

“only” to resolve lingering doubts

conflicts with other circuits .................. 24

B. The Split of Authority Over Judicial

Review of Agency Violations of the CRA .... 26

C. The Tenth Circuit’s Decision

Renders a Federal Statute

Inoperable and Ineffective .......................... 28

D. The Tenth Circuit’s Decision Will

Worsen the Already Serious Problem

of Agencies Skirting the CRA ..................... 31

E. Withholding Judicial Review Causes

Significant Harm to Regulated

Parties and Undermines the Policies

Underlying Unsubmitted Rules .................. 35

CONCLUSION.......................................................... 37

APPENDIX

Opinion, U.S. Court of Appeals for the

Tenth Circuit, filed Aug. 4, 2020 ............................ A-1

Memorandum and Order, U.S. District Court

for the District of Kansas, filed Apr. 8, 2019 ......... B-1

Order denying petition for rehearing en banc,

U.S. Court of Appeals for the Tenth Circuit,

filed Oct. 19, 2002 ................................................... C-1

5 U.S.C. §§ 801, 802, 805, 806 ................................ D-1

Complaint for Declaratory and Injunctive Relief,

U.S. District Court for the District of Kansas,

filed Apr. 10, 2018 ................................................... E-1

TABLE OF AUTHORITIES

Cases

Akins v. F.E.C.,

101 F.3d 731 (D.C. Cir. 1996), aff’d on

other grounds 524 U.S. 11 (1998)...................... 17

Amer. Road & Transp. Builders Ass’n v. E.P.A.,

588 F.3d 1109 (D.C. Cir. 2009).......................... 17

Biden v. Sierra Club, No. 20-138, 592 U.S. ___,

2021 WL 357258 (U.S. Feb. 3, 2021) ................ 14

Block v. Community Nutrition Institute,

467 U.S. 340 (1984) ............................... 21, 23, 25

Bond v. United States,

564 U.S. 211 (2011) ........................................... 13

Center for Biological Diversity v. Bernhardt,

946 F.3d 553 (9th Cir. 2019) ............................. 26

Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402 (1971) ................................ 19

College Sports Council v. Dep’t of Education,

465 F.3d 20 (D.C. Cir. 2006) ............................. 17

Comm. to Save the Rio Hondo v. Lucero,

102 F.3d 445 (10th Cir. 1996) ........................... 10

Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.,

789 F.3d 1075 (9th Cir. 2015) ......................15-16

Defenders of Wildlife v. Jewell,

815 F.3d 1 (D.C. Cir. 2016) ............................... 36

Desert Survivors v. U.S. Dep’t of Interior,

321 F. Supp. 3d 1011 (N.D. Cal. 2018) ............. 36

El Paso Nat. Gas Co. v. United States,

632 F.3d 1272 (D.C. Cir. 2011)................ 2, 20, 24

vii

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) ............................. 2, 20, 24

Gulf Restoration Network v. McCarthy,

783 F.3d 227 (5th Cir. 2015) ............................. 17

Gutierrez de Martinez v. Lamagno,

515 U.S. 417 (1995) ........................................... 24

Hyatt v. Office of Management and Budget,

908 F.3d 1165 (9th Cir. 2018) ........................... 25

In re A Community Voice,

878 F.3d 779 (9th Cir. 2017) ............................. 17

King v. Burwell,

576 U.S. 473 (2015) ........................................... 22

Kucana v. Holder,

558 U.S. 233 (2010) ................................23-25, 31

Liesegang v. Secretary of Veterans Affairs,

312 F.3d 1368 (Fed. Cir. 2002)................ 3, 20, 26

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................ 2, 10, 12, 14-15, 19

Lujan v. National Wildlife Fed’n,

497 U.S. 871 (1990) ..................................... 12, 18

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) ..................................... 11, 31

Make The Road New York v. Wolf,

962 F.3d 612 (D.C. Cir. 2020) ........................... 24

Massachusetts v. EPA,

549 U.S. 497 (2007) ........................................... 14

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) ........................................... 25

viii

Montanans for Multiple Use v. Barbouletos,

568 F.3d 225 (D.C. Cir. 2009) ........................... 26

Nat. Res. Defense Council v. Abraham,

355 F.3d 179 (2d Cir. 2004) ................3, 20, 26-27

Nat. Res. Defense Council, Inc. v. Securities

& Exchange Commission,

606 F.2d 1031 (D.C. Cir. 1979).................2, 16-17

Nat’l Min. Ass’n v. U.S. Dept. of Interior,

70 F.3d 1345 (D.C. Cir. 1995) ........................... 17

Nulankeyutmonen Nkihtaqmikon v. Impson,

503 F.3d 18 (1st Cir. 2007) ...........................15-16

Permian Basin Petroleum Ass’n v.

Dep’t of the Interior,

127 F. Supp. 3d 700 (W.D. Tex. 2015) .....7, 35-36

Rocky Mountain Wild v. Walsh,

216 F. Supp. 3d 1234 (D. Colo. 2016)................ 36

Salinas v. U.S. Railroad Retirement Bd.,

No. 19-199, 2021 WL 357253

(U.S. Feb. 3, 2021) ..................................19-20, 24

SAS Institute, Inc. v. Iancu,

138 S. Ct. 1348 (2018) ....................................... 24

Sierra Club v. Marita,

46 F.3d 606 (7th Cir. 1995) ............................... 15

Summers v. Earth Island Institute,

555 U.S. 488 (2009) ........................................... 14

Thole v. U.S. Bank N.A.,

140 S. Ct. 1615 (2020) ....................................... 12

Tugaw Ranches, LLC v. U.S. Dep’t of Interior,

362 F. Supp. 3d 879

(D. Idaho 2019) .......................................28-30, 36

United States v. Dohou,

948 F.3d 621 (3d Cir. 2020) ............................... 25

United States v. Reece,

956 F. Supp. 2d 736 (W.D. La. 2013) ...........28-29

United States v. S. Indiana Gas & Electric Co.,

No. IP99-1692-C-M/S, 2002 WL 31427523

(S.D. Ind. Oct. 24, 2002) .................................... 28

Utah v. Babbitt,

137 F.3d 1193 (10th Cir. 1998) ......................... 18

Western Watersheds Project v.

Fish & Wildlife Serv.,

535 F. Supp. 2d 1173 (D. Idaho 2007) .............. 36

Western Watersheds Project v. Foss,

No. 04-cv-168, 2005 WL 2002473

(D. Idaho Aug. 19, 2005).................................... 36

WildEarth Guardians v. EPA,

759 F.3d 1196 (10th Cir. 2014). ........................ 18

WildEarth Guardians v. Jewell,

738 F.3d 298 (D.C. Cir. 2013) ......................14-15

Statutes

5 U.S.C. § 553(e) ..................................................... 16

5 U.S.C. § 801(a)(1) ......................................... 4, 6, 19

5 U.S.C. § 801(a)(1)(A) ...................................4, 28-29

5 U.S.C. § 801(b) ....................................................... 4

5 U.S.C. § 801(b)(2) ............................................28-29

5 U.S.C. § 801(f) ........................................................ 4

5 U.S.C. § 802(a) ................................................. 4, 31

5 U.S.C. § 805 ............................................................ 4

5 U.S.C. § 806 .................................................... 28, 30

28 U.S.C. § 1254(1) ................................................... 1

Pub. L. No. 115-12, 131 Stat. 76

(Mar. 27, 2017)................................................... 33

Pub. L. No. 115-17, 131 Stat. 81

(Mar. 31, 2017)................................................... 33

Pub. L. No. 115-20, 131 Stat. 86

(Apr. 3, 2017) ..................................................... 33

Pub. L. No. 115-21, 131 Stat. 87

(Apr. 3, 2017) ..................................................... 33

Pub. L. No. 115-23, 131 Stat. 89

(Apr. 13, 2017) ................................................... 33

Pub. L. No. 115-172, 132 Stat. 1290

(May 21, 2018) ..............................................33-34

Rules

Sup. Ct. R. 10(a) ...................................................... 12

R. 10(c) ............................................................... 12

Other Authorities

12-Month Finding for the Monarch Butterfly,

85 Fed. Reg. 81,813 (Dec. 17, 2020) .................. 36

142 Cong. Rec. H3016 (daily ed. Mar. 28,

1996) (statement of Rep. Ewing)................... 5, 30

142 Cong. Rec. S3683

(daily ed. Apr. 18, 1996) ................. 3-5, 14, 26-27

Adler, Jonathan H., The Leaky Ark: The

Failure of Endangered Species Regulation

on Private Land, in REBUILDING THE ARK:

NEW PERSPECTIVES ON ENDANGERED

SPECIES ACT REFORM (2011) ............................... 6

Bureau of Land Management, Resource

Management Planning Rule,

81 Fed. Reg. 89,580 (Dec. 12, 2016) .............33-34

Cause of Action Institute, Hundreds of

Important Rules Vulnerable To Repeal

Under the Congressional Review Act

(Mar. 29, 2017),

https://causeofaction.org/hundredsimportant-rules-vulnerable-repealunder-congressional-review-act/ ..................32-33

CFPB Bulletin 2013-02 (Mar. 21, 2013) ................ 33

Cole, Michael J., Interpreting the Congressional

Review Act: Why the Courts Should Assert

Judicial Review, Narrowly Construe

“Substantially the Same,” and Decline to

Defer to Agencies Under Chevron,

70 Admin L. Rev. 53 (2018) ............................... 30

Copeland, Curtis W., Cong. Research Serv.,

Congressional Review Act: Rules Not

Submitted to GAO and Congress

(Dec. 29, 2009), http://www.thecre.com/

forum2/wp-content/uploads/2014/08/

CRS-Report-GAO.pdf .................................. 20, 32

Corrected Br. for Petitioners,

Nat. Res. Defense Council v. Abraham,

2002 WL 32395993 (2d Cir. Oct. 2, 2002) ......... 27

xii

Def.s’ Ans., Tugaw Ranches, LLC v. U.S. Dep’t

of Interior, No. 4:18-cv-00159-DCN

(D. Idaho Mar. 25, 2019) ................................... 28

Dep’t of Health and Human Serv.,

Rule Relating to Compliance with

Title X Requirements,

81 Fed. Reg. 91,852 (Dec. 19, 2016) .................. 33

Dep’t of Interior, Non-Subsistence Take of

Wildlife, and Public Participation and

Closure Procedures, on National Wildlife

Refuges in Alaska Rule,

81 Fed. Reg. 52,247 (Aug. 5, 2016) ................... 33

Dep’t of Labor, Clarification of Employer’s

Continuing Obligation to Make and

Maintain an Accurate Record of Each

Recordable Injury and Illness Rule,

81 Fed. Reg. 91,792 (Dec. 19, 2016) .................. 33

Dep’t of Labor, Rule Establishing Appropriate

Occupations for Drug Testing of

Unemployment Compensation Applicants,

81 Fed. Reg. 50,298 (Aug. 1, 2016) ................... 33

Determination of Threatened Status

for the Lesser Prairie-Chicken,

79 Fed. Reg. 19,974 (Apr. 10, 2014) ................ 6-7

Dkt. No. 6, Defenders of Wildlife v. Bernhardt,

No. 1:19-cv-1709 (D.D.C. Sept. 12, 2019) ........... 8

E.O. 12,866,

58 Fed. Reg. 51,735 (Sept. 30, 1993)................. 33

xiii

GAO, OMB Should Work with Agencies

to Improve Congressional Review Act

Compliance During and at the End of

Presidents’ Terms (Mar. 2018),

http://www.gao.gov/assets/700/

690624.pdf.......................................................... 32

Larkin, Jr., Paul J., Reawakening

the Congressional Review Act,

41 Harv. J.L. & Pub. Pol’y 187 (2018) .........29-30

Larkin, Jr., Paul J.,

The Trump Administration and

the Congressional Review Act,

16 Geo. J.L. & Pub. Pol’y 505 (2018) ...........30-31

Memorandum from Russell T. Vought,

Acting Director, Office of Management

and Budget, to the Heads of Executive

Departments and Agencies

(Apr. 11, 2019),

https://www.whitehouse.gov/wpcontent/uploads/2019/04/M-19-14.pdf ............... 34

Okla. Dep’t of Wildlife Conservation, Lesser

Prairie-chicken Numbers Improve Again

in Annual Survey (July 19, 2018),

https://www.wildlifedepartment.com/out

door-news/lesser-prairie-chickennumbers-improve-again-annual-survey ......... 7-8

Policy for Evaluation of Conservation

Efforts When Making Listing Decisions,

68 Fed. Reg. 15,100 (Mar. 28, 2003). .........5-6, 35

Proposed Rule Listing the Lesser PrairieChicken as a Threatened Species,

77 Fed. Reg. 73,828 (Dec. 11, 2012) ................ 6-7

xiv

U.S. GAO, Bid Protests, Appropriations

Law, & Other Legal Work,

https://www.gao.gov/legal/other-legalwork/congressional-review-act#database

(last visited Feb. 5, 2021) .................................. 34

U.S. Senate, How to Find Executive

Communications,

https://www.senate.gov/reference/

common/faq/how_to_executiveco

mmunications.htm

(last visited Feb. 5, 2021) .................................. 34

Walker, Christopher J., Inside Agency

Statutory Interpretation,

67 Stan. L. Rev. 999 (2015) ................................. 3

Wallach, Phillip A. & Zeppos, Nicholas W.,

Brookings Inst. Report, How powerful

is the Congressional Review Act?

(Apr. 4, 2017),

https://www.brookings.edu/research/

how-powerful-is-the-congressionalreview-act/.....................................................32-34

Western Ass’n of Fish & Wildlife Agencies,

2019 Annual Report for the Range-wide

Oil and Gas Candidate Conservation

Agreement with Assurances for the

Lesser Prairie-Chicken (Apr. 20, 2020),

https://wafwa.org/wpcontent/uploads/2020/07/LPCRWP_Annu

alReport_2019.pdf ............................................... 8

Western Ass’n of Fish & Wildlife Agencies,

Range-wide Population Size of the

Lesser Prairie-Chicken: 2012 to 2020

(Oct. 12, 2020), https://wafwa.org/

download/range-wide-population-size-ofthe-lesser-prairie-chicken-2012-to2020/?ind=1603459108986&filename=20

20%20LEPC%20Range%20Wide%20Rep

ort%2012%20October%202020.pdf&wpd

mdl=13483&refresh=5f92dcd057c181603

460304 .................................................................. 8

Withdrawal of the Proposed Rule to List

Dunes Sagebrush Lizard,

77 Fed. Reg. 36,872 (June 19, 2012) ................. 36

PETITION FOR A WRIT OF CERTIORARI

Petitioner Kansas Natural Resource Coalition

respectfully petitions for a writ of certiorari to review

the judgment of the Court of Appeals for the Tenth

Circuit.

OPINIONS BELOW

The Tenth Circuit’s opinion is available at 971

F.3d 1222 (Aug. 24, 2020) and is reproduced in the

Appendix at A-1. The order denying rehearing en banc

is reproduced in the Appendix at C-1.

The district court’s opinion is reported at 382 F.

Supp. 3d 1179 (Apr. 8, 2019) and is reproduced in the

Appendix at B-1.

JURISDICTION

On April 8, 2019, the district court dismissed

KNRC’s complaint. App. B-1. On August 24, 2020, a

panel of the Tenth Circuit affirmed that dismissal,

over a dissent. App. A-1. KNRC filed a petition for

rehearing en banc, which was denied on October 19,

2020, with Judge Lucero voting to rehear the case.

App. C-1. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS AT ISSUE

5 U.S.C. §§ 801, 802, 805, and 806 can be found at

Appendix D.

INTRODUCTION

As Judge Lucero’s dissent in the court below

explains, “Congress enacted the CRA to restore

democratic accountability to agency rulemaking.”

App. A-30. “The majority’s holding”—that courts are

powerless to enforce the CRA’s requirements against

recalcitrant agencies—“does not give effect to

Congress’ intent; it undermines it.” Id. This petition

presents two important questions that the Tenth

Circuit decided contrary to decisions of this Court and

other circuits.

First, the Tenth Circuit held that a proceduralinjury plaintiff lacks standing unless it can show with

certainty that procedural compliance would change

the outcome of a subsequent agency action affecting

the party’s interests. This holding conflicts with this

Court’s suggestion and holdings of at least four

circuits that procedural-injury standing requires only

that procedural compliance could protect the party’s

interests. See, e.g., Lujan v. Defenders of Wildlife, 504

U.S. 555, 571-73 & nn.7-8 (1992); Nat. Res. Defense

Council, Inc. v. Securities & Exchange Commission,

606 F.2d 1031 (D.C. Cir. 1979).

Second, the petition presents a significant

question about the presumption favoring judicial

review of agency action and its application to the CRA.

The Tenth Circuit’s decision, contrary to this Court’s

decisions and those of several circuits, relegates the

presumption to an afterthought in cases where an

agency claims a statute precludes review. See, e.g.,

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069-70

(2020); El Paso Nat. Gas Co. v. United States, 632 F.3d

1272, 1276 (D.C. Cir. 2011). On the specific question

whether agency violations of the CRA are reviewable,

the Tenth Circuit’s holding conflicts with decisions

from two other circuits, the CRA’s text, structure,

purpose, and an unambiguous statement by the CRA’s

sponsors. See Nat. Res. Defense Council v. Abraham,

355 F.3d 179, 202 (2d Cir. 2004); Liesegang v.

Secretary of Veterans Affairs, 312 F.3d 1368, 1374

(Fed. Cir. 2002). The Tenth Circuit’s decision leaves

agencies “to police their own conduct” with no

consequence when they fail to do so. App. A-57. That

holding renders a federal statute intended to

constrain federal agencies “ineffectual.” App. A-54. It

will also likely worsen the already significant problem

of agencies ignoring the CRA, thereby thwarting

democratic accountability and the separation of

powers. A decision with such weighty consequences

merits review.

STATEMENT OF THE CASE

The Congressional Review Act

Congress enacted the CRA to restore the “delicate

balance between the appropriate roles of the Congress

in enacting laws, and the Executive Branch in

implementing those laws.” 142 Cong. Rec. S3683,

S3683 (daily ed. Apr. 18, 1996). The problem Congress

aimed to address is immensely important: federal

agencies issue countless rules of great economic,

social, and political significance without any direct

accountability to the American people. See

Christopher J. Walker, Inside Agency Statutory

Interpretation, 67 Stan. L. Rev. 999, 1000 (2015). The

CRA restores a modicum of oversight to the

administrative state by affording Congress and the

President a convenient process to review and

potentially disapprove rules. 142 Cong. Rec. at S3684.

The CRA requires agencies to submit to Congress

every rule before it may go into effect. 5 U.S.C.

§ 801(a)(1)(A). The CRA establishes temporary,

streamlined procedures through which Congress can

review the rule and, if it wishes, pass a joint resolution

disapproving the rule. See, e.g., 5 U.S.C. § 802(a)

(limiting time for debate and barring use of the

filibuster in the U.S. Senate). These procedures are

contingent on agencies submitting their rules as

required. See 5 U.S.C. §§ 801(a)(1), 802(a).

If a resolution is enacted and signed by the

President, the disapproved rule cannot take effect and

the agency is barred from issuing any rule that is

“substantially the same” as the disapproved rule

unless “specifically authorized” to do so. Id. § 801(b).

If a rule is given effect prior to Congress’ review, the

enactment of a joint resolution requires that the rule

“be treated as though such rule had never taken

effect[.]” Id. § 801(f).

The CRA also states that “[n]o determination,

finding, action, or omission under this chapter shall

be subject to judicial review.” 5 U.S.C. § 805. This

provision was intended to ensure that Congress, by

inserting itself into the rulemaking process for the

first time, was not also subjecting its actions to

judicial review under the Administrative Procedure

Act. See 142 Cong. Rec. at S3686.

However, according to the CRA’s sponsors, § 805

does not insulate from review agency violations of the

rule-submission requirement: “The limitation on

judicial review in no way prohibits a court from

determining whether a rule is in effect[;]” instead,

Congress “expect[s] that a court might recognize that

a rule has no legal effect due to 801(a)(1)(A) . . . .” See

id. Indeed, in the same bill, Congress repealed the

Regulatory Flexibility Act’s judicial-review bar,

recognizing that agencies may ignore regulatory

reform statutes unless they are judicial enforceable.

App. A-55–A-56. See 142 Cong. Rec. H3016 (daily ed.

Mar. 28, 1996) (statement of Rep. Ewing) (“It is

because the agencies know their decision to ignore the

RFA cannot be challenged that they almost always do

ignore the act.”).

The Policy for Evaluating Conservation

Efforts When Making Listing Decisions

The U.S. Fish and Wildlife Service’s “Policy for

Evaluation of Conservation Efforts When Making

Listing Decisions” (PECE Rule) encourages states,

local governments, conservationists, and landowners

to work collaboratively on species recovery. 68 Fed.

Reg. 15,100, 15,100 (Mar. 28, 2003). It allows the

Service to forego listing species under the Endangered

Species Act (and thereby avoid the burdensome

regulations such listing would trigger) if other

conservation plans can adequately reduce threats to

species. Id. at 15,102.

Under the PECE Rule, the Service evaluates

conservation efforts according to: (1) the likelihood

that conservation measures will be implemented; and

(2) the likelihood that they will be effective. Id. The

rule further identifies factors that inform the analysis

under each criterion. Id. at 15,114-15. These

standards are intended to incentivize participation in

conservation plans “by increasing the likelihood that

parties’ voluntary efforts and commitments . . . will

play a role in a listing decision.” Id. at 15,104.

By encouraging proactive conservation and

avoiding the ESA’s strictures, the PECE Rule benefits

the recovery of at-risk species. “Addressing the needs

of species before the regulatory protections associated

with listing under the [Endangered Species] Act come

into play often allows greater management flexibility

in the actions necessary to stabilize or restore these

species and their habitats.” Id. at 15,103. See

Jonathan H. Adler, The Leaky Ark: The Failure of

Endangered Species Regulation on Private Land, in

REBUILDING THE ARK: NEW PERSPECTIVES ON

ENDANGERED SPECIES ACT REFORM (2011) (explaining

that, by making listed species a significant liability for

landowners, the Endangered Species Act can

discourage habitat conservation and restoration on

private land).

Despite the CRA’s clear command and the PECE

Rule’s importance, Interior has not submitted the rule

to Congress. App. E-11. Therefore, under the CRA’s

explicit text, the rule is not lawfully in effect. 5 U.S.C.

§ 801(a)(1).

The Lesser Prairie Chicken and KNRC’s

Conservation Plan

The lesser prairie chicken is a species of prairie

grouse whose range includes more than 17 million

acres of grasslands in Kansas, Colorado, New Mexico,

Oklahoma, and Texas. Determination of Threatened

Status for the Lesser Prairie-Chicken, 79 Fed. Reg.

19,974, 20,009-10 (Apr. 10, 2014). Wary of people and

man-made structures, the species has seen a

substantial reduction in suitable habitat in recent

decades. Id. at 20,016-30. This loss of habitat led

Interior to propose listing the species as threatened in

2012. Proposed Rule Listing the Lesser Prairie-

Chicken as a Threatened Species, 77 Fed. Reg. 73,828

(Dec. 11, 2012).1

The proposed listing spurred states, local

governments, industry, landowners, and conservation

groups to develop plans to recover the species. See 79

Fed. Reg. at 19,988-98. KNRC, a nonprofit group

formed by county governments to address

conservation and natural resource issues, developed

such a plan. App. E-4, E-14–E-16. KNRC’s plan calls

for counties to develop and implement policies to

control invasive species encroaching on lesser prairie

chicken habitat, to better mark fences to prevent

entanglement or injury, and to encourage habitat

restoration. App. E-15. A majority of prime lesser

prairie chicken habitat is in Western Kansas and

covered by KNRC’s plan. App. E-14. The plan also

encourages counties to take steps compatible with a

five-state plan developed by the Western Association

of Fish and Wildlife Agencies. App. E-12–E-13, E-15.

Under the five-state plan, companies and

landowners pay a fee to offset activities that disturb

habitat which funds habitat conservation and

restoration elsewhere. App. E-12–E-14. As of July

2018, that plan had raised $64 million for lesser

prairie chicken conservation and secured conservation

agreements covering 150,000 acres. See Okla. Dep’t of

Wildlife

Conservation,

Lesser

Prairie-chicken

1 Interior’s decided to list the species as threatened in 2014, a

decision that was set aside because Interior failed to follow the

PECE Rule. See Permian Basin Petroleum Ass’n v. Dep’t of the

Interior, 127 F. Supp. 3d 700, 707-08 (W.D. Tex. 2015). No party

raised Interior’s CRA violation or its effect on the PECE Rule in

Permian Basin.

Numbers Improve Again in Annual Survey (July 19,

2018).2

Due in part to conservation efforts undertaken by

states, local governments, landowners, and

conservationists, the estimated size of the lesser

prairie chicken population increased from 15,397 in

2013 to 34,408 in 2020. See Western Ass’n of Fish &

Wildlife Agencies, Range-wide Population Size of the

Lesser Prairie-Chicken: 2012 to 2020 ii (Oct. 12,

2020).3 However, additional petitions to list the

species have been filed and Interior will decide soon

whether to again propose the species for listing. Dkt.

No. 6 at 2, Defenders of Wildlife v. Bernhardt, No.

1:19-cv-1709 (D.D.C. Sept. 12, 2019). The PECE Rule

must be lawfully in effect to govern Interior’s

subsequent consideration of KNRC’s conservation

plan when deciding whether to list the species.

https://www.wildlifedepartment.com/outdoor-news/lesserprairie-chicken-numbers-improve-again-annual-survey. A 2019

audit of the five-state plan found alleged financial

mismanagement by the organization administering the plan.

See Western Ass’n of Fish & Wildlife Agencies, 2019

Annual Report for the Range-wide Oil and Gas Candidate

Conservation Agreement with Assurances for the Lesser PrairieChicken Apps. E & F (Apr. 20, 2020), https://wafwa.org/wpcontent/uploads/2020/07/LPCRWP_AnnualReport_2019.pdf. It

remains to be seen what effect this will have on the long-term

future of that plan.

https://wafwa.org/download/range-wide-population-size-ofthe-lesser-prairie-chicken-2012-to2020/?ind=1603459108986&filename=2020%20LEPC%20Range

%20Wide%20Report%2012%20October%202020.pdf&wpdmdl=1

3483&refresh=5f92dcd057c181603460304

Proceedings Below

The district court dismisses KNRC’s complaint

In April 2018, KNRC filed this lawsuit

challenging Interior’s failure to submit the PECE

Rule to Congress and seeking an order directing

submission. App. E-1. This, KNRC alleges, is

necessary to protect KNRC’s interest in the lesser

prairie chicken, its conservation plan, and

consideration of that plan in the listing decision. App.

E-14–E17.

Interior moved to dismiss KNRC’s complaint,

arguing that KNRC lacked standing, that its claim

was time-barred, and that the CRA precludes judicial

review of KNRC’s claim. App. B-2. The district court

dismissed the case, ruling that judicial review is

precluded by 5 U.S.C. § 805. App. B-1–B-2. The

district court did not address Interior’s standing or

statute-of-limitations arguments. App. B-7.

The Tenth Circuit affirms, over a dissent

On appeal, a panel of the Tenth Circuit affirmed,

holding that KNRC lacks standing to challenge

Interior’s CRA violation and that judicial review is

precluded. App. A-1. Judge Lucero dissented. App. A30.

On standing, the majority first faulted KNRC for

not specifically alleging that any county or landowner

has refused to implement KNRC’s conservation plan

due to Interior’s CRA violation. App. A-15. “But such

specific allegations are unnecessary for standing

purposes at this stage of litigation,” Judge Lucero

responded. App. A-37–A-38. On a motion to dismiss,

“‘[g]eneral factual allegations of injury resulting from

the defendant’s conduct may suffice’” because courts

“presum[e that] general allegations embrace those

specific facts [that are] necessary to support the

claim.” Id. (quoting Lujan, 504 U.S. at 561, and

Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445,

448 (10th Cir. 1996)).

Second, the majority determined that KNRC

could not assert any procedural injury because the

only interest protected by the CRA’s procedures is

Congress’ interest in oversight of the Executive

Branch. App. A-17. Judge Lucero responded that the

CRA’s procedures are intended to protect private

interests and, besides, the zone-of-interests test does

not apply because KNRC does not rely on third-party

standing and the government forfeited the argument.

App. A-36 n.4.

Next, the majority held that, even assuming the

CRA’s procedures protect private interests, KNRC’s

procedural injury is too speculative because the

outcome of Interior’s listing decision is unknown. App.

A-19–A21. However, Judge Lucero would have ruled

that KNRC established standing based on its interest

in the “proper consideration” of its conservation plan

under the PECE Rule’s “specific criteria for evaluating

whether a conservation plan like KNRC’s obviates the

need for a federal listing.” App. A-41–A-42. The PECE

Rule’s submission would ensure that these specific

criteria govern Interior’s review of KNRC’s plan,

which could better protect4 KNRC’s interest in

4 The panel majority acknowledged the body of judicial authority

supporting this standard but dismissed its relevance here. See

App. A-17 n.5. But the majority “fail[ed] to explain this ipse

dixit.” App. A-35 n.2 (Lucero, J., dissenting).

conserving the lesser prairie chicken and avoiding the

consequences of a listing. App. A-40–A-42.

Recognizing that the district court’s decision

rendered futile a remand to cure any standing defects,

see App. A-20–A-21, the majority proceeded to

consider whether the CRA precludes judicial review.

It held that it does. App. A-21–A-24. In reaching that

conclusion, the majority interpreted § 805 in isolation,

dismissing the relevance of other statutory text,

legislative history, or the statute’s purpose. App. A25–A-28.

But as Judge Lucero noted in his dissent,

“Throughout its analysis, the majority fails to apply”

the presumption favoring judicial review of agency

action. App. A-50. “Not once does [the majority]

acknowledge the government’s ‘heavy burden’ to show

that Congress intended to ‘prevent courts from

enforcing its directive[]’ that agencies submit

proposed rules for approval.” App. A-50 (quoting Mach

Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015)).

Applying that presumption, Judge Lucero would

have held that 5 U.S.C. § 805 does not preclude

judicial review of KNRC’s claim. App. A-44–A-63.

According to the dissent, the majority’s reading of

§ 805 is inconsistent with the text of the statute,

statutory

structure,

unambiguous

and

uncontroverted statement from the CRA’s sponsors,

and the statute’s purpose. Id.5

On October 8, 2020, KNRC petitioned for

rehearing en banc. App. C-1. The panel denied that

5 Although the majority did not reach the issue, Judge Lucero

also concluded that KNRC’s challenge is timely. App. A-67–A-69.

petition on October 22, 2020, with Judge Lucero

voting for rehearing. Id.

REASONS FOR GRANTING THE PETITION

This petition should be granted because the Tenth

Circuit decided important questions of federal law

that this Court has not settled but should. Sup. Ct. R.

10(c). The Tenth Circuit’s decision also conflicts with

this Court’s precedents and those of other circuits on

the same important matters. Sup. Ct. R. 10(a)

The Tenth Circuit Resolved an

Important Standing Question Contrary to

Decisions of This Court and Other Circuits

As this Court recently observed, “[c]ourts

sometimes make standing law more complicated than

it needs to be.” Thole v. U.S. Bank N.A., 140 S. Ct.

1615, 1622 (2020). That is a fit description of the

majority’s standing analysis below. This case is at the

pleading stage, KNRC is an object of the rule at issue,

and it seeks to vindicate a procedural injury, each of

which lighten its standing burden.6

Here, KNRC asserts a procedural injury based on

its interest in the lesser prairie chicken, its

conservation plan, and proper consideration of that

plan in the decision whether to list the species under

See Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883-89

(1990) (At the pleading stage, “general factual allegations” are

presumed to embrace “those specific facts that are necessary to

support the claim.”); Lujan, 504 U.S. at 561 (If “the plaintiff is

himself an object of the action . . . there is ordinarily little

question” of his standing.); id. at 572-73 (When a party is seeking

to enforce a procedural requirement, it is enough that the

violation “could” impair its interests.).

the Endangered Species Act. App. E-2–E4, E-14–E-17.

KNRC alleges that Interior has not submitted the

PECE Rule for congressional review and, therefore,

the rule is not lawfully in effect and its conservation

incentives are thwarted. App. E-11–E-12, E-17. If the

rule is submitted, however, KNRC’s interests could be

vindicated by certainty in the rule’s incentives, proper

consideration of KNRC’s plan in the decision whether

to list the lesser prairie chicken, and a favorable

outcome in that decision. App. A-40–A-42. Therefore,

KNRC has standing to pursue its CRA claim. Id.

The Tenth Circuit’s contrary holding is not only in

error, but independently merits review and reversal

because it conflicts with this Court’s cases, decisions

of at least four other circuits, and is unworkable.

The Tenth Circuit’s Decision Is

Contrary to This Court’s Cases

The Tenth Circuit’s standing analysis is contrary

to this Court’s precedents in at least two respects and,

for that reason, merits review and reversal.

First, the majority’s denial of KNRC’s standing

because the CRA “seems designed” to protect only

Congress’ interest in “oversight of the executive

branch” fundamentally misunderstands the interests

protected by the separation of powers. App. A-17.

“Separation-of-powers principles are intended, in

part, to protect each branch of government from

incursion by the others.” Bond v. United States, 564

U.S. 211, 222 (2011). But “the structural principles

secured by the separation of powers protect the

individual as well” and individuals have standing to

vindicate that interest. Id. To be sure, the CRA is a

statute, rather than a constitutional provision. But it

is no less aimed at enforcing separation of powers

principles. See 142 Cong. Rec. at S3684. And Congress

intended it to protect individual interests, not just

Congress’ power for its own sake. App. A-36 n.4.7

Second, the majority’s analysis is contrary to this

Court’s recognition that, in a procedural-injury case,

it is enough that “plaintiffs are seeking to enforce a

procedural requirement the disregard of which could

impair a separate concrete interest[.]” Lujan, 504 U.S.

at 572-73 (emphasis added). See Massachusetts v.

EPA, 549 U.S. 497, 517-18 (2007) (In a proceduralinjury case, a litigant has standing “if there is some

possibility” that the requested relief could avoid the

injury.).

KNRC does not assert a procedural violation in

vacuo, which would be insufficient. See Summers v.

Earth Island Institute, 555 U.S. 488, 496-97 (2009).

Instead, the procedural violation directly relates to

KNRC’s interests, including the prevalence of lesser

prairie chicken habitat within member counties,

KNRC’s development and implementation of a

conservation plan, and proper consideration of that

plan in a listing decision that could have significant

adverse consequences on member counties. App. E-2–

E-4, E-14–E-17. See WildEarth Guardians v. Jewell,

738 F.3d 298, 305 (D.C. Cir. 2013) (A procedural

7 This issue is also before the Court in Biden v. Sierra Club, 20-

138 (cert. granted Oct. 19, 2020) (whether the zone-of-interests

test precludes private parties enforcing separation-of-powers

statutes). However, probable mootness may preclude the Court

deciding the issue in that case. See id., 592 U.S. ___, 2021 WL

357258 (Feb. 3, 2021) (removing the case from the Court’s oral

argument calendar).

injury claim “must be tethered to” some concrete

interest.).

The Tenth Circuit did not discredit these

interests. Instead, “the majority never identifies

KNRC’s legally protected interest. As such, its

analysis of the concreteness of KNRC’s alleged injury

is unmoored from the interest allegedly harmed.” App.

A-35–A-36 (emphasis in original).

The majority nonetheless denied KNRC’s

standing because submission of the PECE Rule might

not result in a different outcome in the listing

decision. See, e.g., App. A-19–A-20 (The PECE Rule

“does not foreordain any particular outcome” in the

listing decision and, therefore, KNRC “cannot show a

certainly impending injury when the outcome of that

analysis is unknown.”). Under Lujan, this uncertainty

is no obstacle to KNRC’s vindication of its procedural

injury. See 504 U.S. at 572 n.7 (In procedural injury

cases, standing is satisfied “even though” a party

“cannot establish with any certainty” the outcome of

following the required procedure.)

The Tenth Circuit’s Decision

Conflicts With Decisions of at

Least Four Other Circuits

The Tenth Circuit’s holding also conflicts with the

holdings of at least four other circuits, all of which

hold that in procedural-injury cases standing is

unaffected by the uncertainty of future agency action.

See, e.g., Nulankeyutmonen Nkihtaqmikon v. Impson,

503 F.3d 18, 28 (1st Cir. 2007); Sierra Club v. Marita,

46 F.3d 606, 611-12 (7th Cir. 1995); Cottonwood Envtl.

Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1082-83

(9th Cir. 2015); Nat. Res. Defense Council, 606 F.2d at

1036.

In Nulankeyutmonen Nkihtaqmikon, for instance,

tribal members brought a procedural injury claim

against Interior for approving development of a liquid

natural gas terminal on tribal land. 503 F.3d at 23-24.

Interior challenged the tribal members’ standing

because the terminal would only be built—and,

therefore, would only affect the tribal lands—if the

Federal Energy Regulatory Commission also issued a

permit, agency action “which is unpredictable.” Id. at

28. The First Circuit rejected the argument. Id. Given

the risk of harm to the tribal members’ interests, they

could pursue their procedural claims because “there is

at least a chance” that procedural compliance could

protect those interests. Id.

Perhaps most closely analogous to this case are

the D.C. Circuit’s rulemaking-petition cases. Cf. 5

U.S.C. § 553(e) (recognizing a procedural right to

petition agencies for rulemaking). In Natural

Resources Defense Council, for instance, an

environmental organization petitioned a federal

agency to issue a rule requiring corporations to

disclose environmental information about their

activities. 606 F.2d at 1036. If the agency issued the

rule and if corporate disclosures revealed

environmental misdeeds, the organizations alleged

that they and their members could use this

information when voting their shares in companies for

which they owned stock. Id. at 1042-43. Although any

effect on the organizations’ interests depended on

future agency- and corporate-actions, the D.C. Circuit

found standing because, in not issuing the rule, the

agency “arguably impaired” the organizations’

interest in voting their shares consistent with their

environmental values. See id. See also Amer. Road &

Transp. Builders Ass’n v. E.P.A., 588 F.3d 1109, 111112 (D.C. Cir. 2009); College Sports Council v. Dep’t of

Education, 465 F.3d 20, 23 (D.C. Cir. 2006); Nat’l Min.

Ass’n v. U.S. Dept. of Interior, 70 F.3d 1345, 1349 (D.C.

Cir. 1995). Cf. In re A Community Voice, 878 F.3d 779,

784-85 (9th Cir. 2017); Gulf Restoration Network v.

McCarthy, 783 F.3d 227 (5th Cir. 2015).

The Tenth Circuit dismissed KNRC’s analogy to

these rulemaking-petition cases because KNRC is not

“independently entitle[d] . . . to relief” under the APA’s

petition provision. App. A-16. But the majority

“misses the point.” App. A-40 n.5. “[T]he analogy to

§ 555 [shows] that the uncertainty of an agency’s

ultimate determination” in a forthcoming agency

action “does not dispositively mean an asserted

procedural injury is speculative.” Id.

This split of authority goes to the very core of

judicial review of agency action. Courts “rarely know

when [they] entertain a case . . . whether the agency’s

ultimate action will be favorable to the petitioner or

appellant.” Akins v. F.E.C., 101 F.3d 731, 738 (D.C.

Cir. 1996), aff’d on other grounds 524 U.S. 11 (1998).

Therefore, denying parties standing for this reason

constitutes “a breathtaking attack on the legitimacy

of virtually all judicial review of agency action.” Id.

The Tenth Circuit’s Approach

Is Unworkable

Finally, the Tenth Circuit’s decision provides no

standard by which to determine whether a party has

procedural-injury standing. Therefore, its holding will

lead to unpredictable results.

Consider, for instance, the majority’s unexplained

assertion that KNRC lacks standing because its injury

is less concrete than the “environmental harms”

asserted in WildEarth Guardians v. EPA, 759 F.3d

1196, 1205 (10th Cir. 2014). App. A-17–A-18 n.5. In

that case, an organization challenged a procedural

violation in the issuance of an air-pollution rule. 759

F.3d at 1205-06. The organization’s standing was

based on a single member’s stated interest in visiting

a river and viewing fish that could be harmed by air

pollution. Id.8 How is the mere desire to look at a

species a more concrete interest than KNRC’s

investment of time and resources to develop and

implement a plan to recover a species? The Tenth

Circuit does not say. App. A-35 n.2 (The majority “fails

to explain this ipse dixit.”).9

The Tenth Circuit also based its holding in part

on speculation that Interior may apply the PECE rule

in the upcoming listing decision. See App. A-20 n.7

WildEarth Guardians was decided on summary judgment,

which imposes a higher standing burden than applies here. See

National Wildlife Fed’n, 497 U.S. at 883-89.

9 As here, the process at issue in WildEarth Guardians did not

foreordain any particular outcome. See 759 F.3d at 1205

(WildEarth “need not establish with certainty that adherence to

the procedures would necessarily change the agency’s ultimate

decision.” (quoting Utah v. Babbitt, 137 F.3d 1193, 1216 n.37

(10th Cir. 1998))).

(“DOI might ultimately consider KNRC’s plan in

precisely the fashion KNRC desires.”). This assertion

is befuddling because, if the Complaint’s allegations

are taken as true (as they must), the PECE Rule is not

lawfully in effect. 5 U.S.C. § 801(a)(1). See App. E-17.

Therefore, were Interior to apply it in the listing

decision, it would be acting unlawfully. The majority

cites no precedent for the proposition that standing

can be defeated by speculation that an agency may act

unlawfully in the future to the plaintiff’s benefit.

Instead, the general rule is that agencies behave

lawfully except to the extent a complaint alleges

otherwise. See Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 415 (1971) (Federal agencies

enjoy a “presumption of regularity[.]”).10

None of these problems arise under Lujan or the

other circuit cases cited above. Instead, KNRC has

standing because submission of the PECE Rule would

ensure that the rule is lawfully in effect and will

govern the decision whether to list the species, a result

which indisputably “could” benefit KNRC’s interests.

See Lujan, 504 U.S. at 572-73.

II.

The Tenth Circuit’s Holding That the CRA

Precludes Judicial Enforcement Merits Review

The Tenth Circuit’s holding that the CRA

precludes judicial review contravenes this Court’s

strong presumption favoring judicial review of agency

action, which requires limits on review of agency

action to be construed narrowly. See, e.g., Salinas v.

10 If the majority’s speculation proves unfounded, it is unclear

that KNRC could challenge an adverse listing decision for failing

to apply a rule that was not lawfully in effect at the time.

U.S. Railroad Retirement Bd., No. 19-199, 2021 WL

357253 (U.S. Feb. 3, 2021); Guerrero-Lasprilla, 140 S.

Ct. at 1069-70; El Paso Nat. Gas Co., 632 F.3d at 1276.

The Tenth Circuit relegates the presumption to an

afterthought in cases where an agency claims a

statute precludes review. See App. A-28. See also

App. A-49 n.9.

On the narrower question whether the CRA

precludes review, the Tenth Circuit’s decision also

conflicts with Second Circuit and Federal Circuit

precedent, the CRA’s text, its structure, a clear

statement from its sponsors, and the statute’s

purposes. See App. A-44–A-63. See also Abraham, 355

F.3d at 202; Liesegang, 312 F.3d at 1374. Moreover,

by ensuring that agencies violating the CRA face no

consequence, the Tenth Circuit’s decision will worsen

the already significant problem of agencies ignoring

the CRA. See Curtis W. Copeland, Cong. Research

Serv., Congressional Review Act: Rules Not Submitted

to GAO and Congress (Dec. 29, 2009).11 Therefore, the

decision will undermine the democratic accountability

and the separation of powers values that motivated

Congress to enact the CRA. App. A-61–A-63.

Due to these significant doctrinal and practical

consequences, this Court should grant review to settle

the important question whether courts can enforce the

CRA’s

rule-submission

requirement

against

recalcitrant agencies.

http://www.thecre.com/forum2/wpcontent/uploads/2014/08/CRS-Report-GAO.pdf.

The Tenth Circuit’s Relegation

of the Presumption Conflicts

With This Court’s Decisions

and Those of Other Circuits

As Judge Lucero observed in dissent, “the

majority fails to apply” the presumption favoring

judicial review of agency action. App. at A-50. “Not

once does [the majority] acknowledge the

government’s ‘heavy burden’ to show that Congress

intended to ‘prevent courts from enforcing its

directive[]’ that agencies submit proposed rules for

approval.” Id. Instead, the majority below dismissed

the presumption in passing, concluding that it need

“only” consider the presumption to resolve any

lingering doubt after interpreting § 805 without

reference to the presumption. App. A-28. For that

reason, the Tenth Circuit’s decision conflicts with

decisions of this Court and other circuits.

1. The Tenth Circuit’s approach is contrary

to this Court’s precedents

In Block v. Community Nutrition Institute, this

Court held that “[w]hether and to what extent a

particular statute precludes judicial review is

determined not only from its express language, but

also from the structure of the statutory scheme, its

objectives, its legislative history, and the nature of the

administrative action.” 467 U.S. 340, 345 (1984).

Ignoring this guidance, the Tenth Circuit considered

§ 805 in isolation and gave no weight to the rest of the

statute’s text, its structure, its objectives,

unambiguous and uncontroverted statements from

the CRA’s sponsors, and the nature of the

administrative action. App. A-25–A-28.

Each of these factors support the availability of

judicial review in this case. Even construing § 805 in

isolation, as the majority below did, the text is

ambiguous. App. A-51–A-58. The text does not

expressly address agency action and the list of actions

excluded from judicial review suggests a narrower

interpretation. Id.

However, § 805 must not be interpreted in

isolation. See also King v. Burwell, 576 U.S. 473, 486

(2015) (“Our duty, after all, is to construe statutes, not

isolated provisions.”). Instead, it must be read

considering the statute as a whole. Other text in the

CRA strongly supports the availability of judicial

review because the Tenth Circuit’s interpretation

“renders the CRA ineffectual” and several of its

provisions inoperable. App. A-54–A-55. See supra Part

II.C.

Moreover, the CRA’s sponsors in both houses of

Congress issued an unequivocal, and uncontroverted

statement that § 805 does not preclude judicial review

when

agencies

violate

the

rule-submission

requirement. App. A-58–A-61. See 142 Cong. Rec. at

S3686. And this is the sort of agency action courts

review routinely under the APA. App. A-63.

Ultimately, withholding judicial review defeats the

CRA’s evident purpose, by leaving agencies to police

their own compliance with a statute intended to

constrain agency authority, increase democratic

accountability, and secure the separation of powers.

App. A-61–A-63.

There is, therefore, substantial doubt that

Congress intended to leave agencies to police their

own conduct under the CRA. See App. A-64. See also

Block, 467 U.S. at 351 (“[W]here substantial doubt

about congressional intent exists, the general

presumption

favoring

judicial

review

administrative action is controlling.”). Interior does

not dispute that most of these factors cut against its

position, contesting instead only how damning each

factor is in isolation. See App. A-65 (Interior “largely

fails to make an affirmative case that Congress

intended to strip courts of jurisdiction to review an

agency’s failure to submit a rule for approval[.]”).

Contrary to Block, the majority below interpreted

§ 805 in a vacuum, without regard to the presumption

of judicial review. App. A-28. See App. A-55 n.12. To

justify its departure from this Court’s precedents, the

majority read Kucana v. Holder to reduce the

presumption’s significance where an agency asserts

that a statute precludes review. App. A-28. See

Kucana, 558 U.S. 233 (2010). According to the

majority, Kucana requires the presumption to be

applied in such cases “only to resolve any ‘lingering

doubt’ after determining that the statute in question

was susceptible to divergent interpretations.” App. A28 (quoting Kucana, 558 U.S. at 251). But “[t]he word

‘only’ is the majority’s invention—it does not appear

in Kucana.” App. A-49 n.9.

Neither Kucana nor any other case has ever

endorsed the proposition that the presumption is of

lesser significance where an agency claims a statute

precludes judicial review. Instead, both before and

after Kucana, this Court has consistently applied the

presumption in such cases the same as in any other.

See Salinas, 2021 WL 357253; Guerrero-Lasprilla,

140 S. Ct. at 1069-70 (“Consider first a familiar

principle of statutory construction: the presumption

favoring judicial review of administrative action.”

(cleaned up) (quoting Kucana, 558 U.S. at 251)); SAS

Institute, Inc. v. Iancu, 138 S. Ct. 1348, 1359 (2018)

(“[W]e begin with the strong presumption of judicial

review.” (cleaned up)); Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 430 (1995) (“We return now,

in more detail, to the statutory language to determine

whether it overcomes the presumption . . . .”). The

Tenth Circuit’s decision breaks from this

uninterrupted line of precedent and, therefore, merits

review.

2. The Tenth Circuit’s holding that

the presumption applies “only” to

resolve lingering doubts conflicts

with other circuits

The Tenth Circuit’s downplaying of the

presumption also conflicts with decisions of at least

three other circuits, all of which hold that the

presumption requires statutes limiting judicial review

of agency action to be interpreted narrowly.

In Make The Road New York v. Wolf, for instance,

the D.C. Circuit recently observed that the “‘wellsettled’ and ‘strong presumption’ in favor of judicial

review is so embedded in the law that it applies even

when determining the scope of statutory provisions

specifically designed to limit judicial review.” 962 F.3d

612, 624 (D.C. Cir. 2020). “[T]he presumption dictates

that such provisions must be read narrowly.” El Paso

Nat. Gas Co., 632 F.3d at 1276.

The Third Circuit likewise recognizes that the

presumption “favors construing jurisdiction-stripping

provisions narrowly.” United States v. Dohou, 948

F.3d 621, 626 (3d Cir. 2020). This rule of construction

properly respects congressional intent. “To displace

our presumption in favor of judicial review, Congress

must speak clearly.” Id. See Kucana, 558 U.S. at 252

(“[T]he Court assumes that ‘Congress legislates with

knowledge of” the presumption.’” (quoting McNary v.

Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991)).

When the relevant factors provide clear and

convincing evidence that Congress intended to

dislodge the presumption, Courts will enforce that

result. Dohou, 948 U.S. at 627. But where the text and

other evidence of congressional intent is mixed—some

factors support review while others point in the

opposite direction—the presumption controls. Id.

Ninth Circuit precedent is in accord. In Hyatt v.

Office of Management and Budget, for instance, the

Ninth Circuit interpreted Block to require a holistic

consideration of “the structure of a statutory scheme,”

the statute’s “objectives,” its “legislative history,” and

“the nature of the administrative action involved.” 908

F.3d 1165, 1171 (9th Cir. 2018) (quoting Block, 467

U.S. at 345). A provision limiting review could not be

interpreted “[i]n a vacuum,” according to the Ninth

Circuit, even though it acknowledged judicial review

might be withheld under such an interpretation. Id.

at 1172. Instead, “the statutory scheme . . . demands

a narrower interpretation” than might result from

construing the provision in isolation. Id.

The decision below is irreconcilable with the law

in these other circuits. The majority construed § 805

in a vacuum, dismissing the relevance of the CRA’s

other text, statutory structure, the sponsors’

statement, and the statute’s purpose. See App. A-55

n.12. For that reason, it adopted a broad reading of

§ 805 that “is neither the only plausible reading of

§ 805 nor the best one.” App. A-58. The D.C., Third,

and Ninth Circuits hold that provisions like § 805

must be interpreted narrowly in such circumstances.

The Split of Authority Over Judicial

Review of Agency Violations of the CRA

Contrary to the Tenth Circuit’s holding, several

circuits have exercised judicial review under the CRA.

See Abraham, 355 F.3d at 202; Liesegang, 312 F.3d at

1374. The majority below cited decisions from the

Ninth and D.C. Circuits as purportedly aligning with

its holding. See Center for Biological Diversity v.

Bernhardt, 946 F.3d 553 (9th Cir. 2019);12 Montanans

for Multiple Use v. Barbouletos, 568 F.3d 225, 229

(D.C. Cir. 2009).13 This Court should grant review to

resolve this split among the courts of appeal.

Center for Biological Diversity was a challenge to Congress’

enactment of a joint resolution rather than an agency’s failure to

submit a rule to Congress as required by the CRA. 946 F.3d at

559. It is, therefore, precisely the sort of case for which the CRA’s

text, legislative history, and purpose indicate judicial review is

precluded. See 142 Cong. Rec. at S3686. So understood, KNRC

embraces Center for Biological Diversity’s holding. To the extent

anything in that decision could be read to effect judicial review

of agency action, it is overbroad dicta.

13 Montanans for Multiple Use’s analysis of this question

consisted of only two sentences and “failed to apply the strong

presumption of judicial review of agency action; cite any case law

for its analysis; or consider any of the evidence identified in

Block, Mach Mining, Cuozzo, and similar on-point cases.” See

App-65–App-66.

Attempting to dismiss this split of authority, the

Tenth Circuit notes that no party raised the effect of

§ 805 in Liesegang. See App. A-28–A-29. However, the

Tenth Circuit makes no such claim for Abraham; nor

could it. In Abraham, several parties challenged the

Department of Energy’s indefinite suspension of an

energy-efficiency rule while the agency considered

replacing it with a less demanding version. 355 F.3d

at 187-90. Citing the Energy Policy and Conservation

Act’s anti-backsliding provision, the challengers

argued that the Department could not, for the

purposes of relaxing the standard, change the

effective date of the rule after it had been formally

issued. See id. at 195-96. To defend its actions, the

Department argued that the rule’s original effective

date violated the CRA and, therefore, had to be

changed. See id. at 201-02. Citing § 805, the

challengers argued that the Department could not

invoke (and the Court could not consider) the CRA to

excuse the agency’s actions. See Corrected Br. for

Petitioners, Abraham, 2002 WL 32395993, at *81 n.29

(2d Cir. Oct. 2, 2002). Rejecting the argument, the

Second Circuit considered the Department’s CRA

defense and ruled against the agency on the merits.

355 F.3d at 201-02.14

Because agencies selectively appeal CRA cases,

the circuit split obscures the depth of division over the

question presented. Several district courts have also

considered this question and those devoting

14 Although an agency rather than a private party invoked the

CRA in Abraham, there is no basis in the CRA to allow judicial

review when sought by an agency but not otherwise. Such a

distinction would fundamentally conflict with the law’s purpose

of increasing agency accountability. See 142 Cong. Rec. at S3684.

substantial analysis to the question have held that

§ 805 does not bar review of agency compliance with

the CRA’s rule-submission requirement. See Tugaw

Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d

879, 889 (D. Idaho 2019); United States v. Reece, 956

F. Supp. 2d 736, 743-44 (W.D. La. 2013); United States

v. S. Indiana Gas & Electric Co., No. IP99-1692-CM/S, 2002 WL 31427523, at **4-6 (S.D. Ind. Oct. 24,

2002). Rather than appealing these adverse decisions,

agencies have accepted defeat.

In so doing, agencies have demonstrated how

little harm judicial review under the CRA poses to

them. In response to its loss on a motion to dismiss in

Tugaw Ranches, for instance, Interior was able to cure

its CRA violation before its answer was due. See Def.s’

Ans. ¶ 5, Tugaw Ranches, LLC v. U.S. Dep’t of

Interior, No. 4:18-cv-00159-DCN (D. Idaho Mar. 25,

2019), ECF No. 43. However, as discussed in the

following sections, the consequences of withholding

judicial review for the CRA’s operation, regulated

parties,

and

democratic

accountability

are

considerably greater. This significant imbalance in

the equities provides additional reason to doubt that

Congress intended to leave agencies—and agencies

alone—to police their own compliance with the CRA.

The Tenth Circuit’s Decision

Renders a Federal Statute

Inoperable and Ineffective

The Tenth Circuit’s decision renders the CRA’s

primary enforcement mechanisms inoperable and

ineffective. 5 U.S.C. §§ 801(a)(1)(A), 801(b)(2). It also

renders at least one other provision redundant or

surplusage. 5 U.S.C. § 806.

The CRA provides that a rule cannot take effect

until it has been submitted for congressional review.

5 U.S.C. § 801(a)(1)(A). However, under the Tenth

Circuit’s holding, this text has no effect. If an agency

treats a rule as if it were lawfully in effect, a court

must follow the agency’s unlawful decision and ignore

the unambiguous consequence of the CRA violation

even if the violation is brought to the court’s attention.

See App. A-54–A.55. Indeed, the government has

argued that § 805 forbids courts from considering an

agency’s CRA violation even where it seeks to

criminally punish someone for violating a rule that is

not lawfully in effect. See Reece, 956 F. Supp. 2d at

743-44.15

The Tenth Circuit’s interpretation also renders

the CRA’s other primary enforcement mechanism

inoperable. Congress’ enactment of a joint resolution

of disapproval is intended to have significant

consequences. A disapproval resolution not only bars

the disapproved rule from going into effect but also

prospectively bars the agency from adopting any rule

“substantially the same” as that disapproved. 5 U.S.C.

§ 801(b)(2). However, “this provision can only operate

if courts can enforce it against recalcitrant agencies.”

Tugaw Ranches, 362 F. Supp. 3d at 883. “[I]n the

absence of judicial review, an agency could avoid the

statute simply by refusing to submit rules for

approval, or it could re-issue a rule expressly

The doctrine of constitutional avoidance lends still further

reason to interpret § 805 narrowly. Allowing an agency to

enforce, including through criminal penalties, rules not lawfully

in effect raises serious Due Process concerns. See Paul J. Larkin,

Jr., Reawakening the Congressional Review Act, 41 Harv. J.L. &

Pub. Pol’y 187, 227 (2018).

disapproved by Congress and enforce it against

private parties.” App. A-54–A-55 (citing Michael J.

Cole, Interpreting the Congressional Review Act: Why

the Courts Should Assert Judicial Review, Narrowly

Construe “Substantially the Same,” and Decline to

Defer to Agencies Under Chevron, 70 Admin L. Rev.

53, 68 (2018), and Larkin, Reawakening the

Congressional Review Act, 41 Harv. J.L. & Pub. Pol’y

at 227, 230).

The Tenth Circuit’s interpretation of § 805

likewise renders the very next clause in the statute,

CRA’s savings clause, meaningless. 5 U.S.C. § 806.

That clause provides that if “the application of” any

provision “is held invalid,” other applications and

other parts of the CRA shall not be affected. Id. This

presumes that courts will review at least some issues

arising under the statute. Moreover, this provision

could only be implicated or have any force in a case

concerning “the application of” the CRA to an agency

rule, i.e. an action or omission relating to such a rule.

“Reading judicial review out of the CRA” also

“foils its primary purpose.” Tugaw Ranches, 362 F.

Supp. 3d at 889. “[I]t is doubtful that Congress

hamstrung its own efforts to restore democratic

accountability[.]” App. A-63. See Paul J. Larkin, Jr.,

The Trump Administration and the Congressional

Review Act, 16 Geo. J.L. & Pub. Pol’y 505, 518

(2018).When Congress enacted the CRA, it understood

agencies may ignore regulatory reform statutes if they

are not judicially enforceable. See 142 Cong. Rec.

H3016. Yet there is no indication that Congress

intended the CRA to be merely “advisory” for federal

agencies. See App. A-57.

The Tenth Circuit’s interpretation also “raises

separation-of-powers concerns because it ‘place[s] in

executive hands authority to remove cases from the

Judiciary’s domain.” App. A-55 (quoting Kucana, 558

U.S. at 237). See Larkin, The Trump Administration

and the Congressional Review Act, supra, at 518. By

removing any consequence from an agency’s violation

of the CRA, the Tenth Circuit’s interpretation also

empowers agencies to determine which of their rules

Congress can review. See App. A-54–A-55. See also 5

U.S.C. § 802(a) (A rule’s submission is the trigger

allowing Congress to use the CRA’s expedited

procedures.).

The Tenth Circuit’s Decision Will

Worsen the Already Serious Problem

of Agencies Skirting the CRA

In Mach Mining, this Court explained that the

presumption favoring judicial review of agency action

plays an essential role in enforcing the rule of law and

separation of powers. Exceptions are few because

Congress “rarely intends to prevent courts from

enforcing its directives to federal agencies” as this

would leave the “agency to police its own conduct[.]”

575 U.S. at 486. After all, this Court “know[s]—and

know[s] that Congress knows—that legal lapses and

violations occur, and especially so when they have no

consequence.” Id. at 488-89.

Mach Mining’s observation “appears to have been

borne out with respect to the CRA—agencies have

failed to submit hundreds of rules for approval,

despite the statute’s clear mandate.” App. at A-62.

According to the Congressional Research Service, the

Government Accountability Office sent at least five

letters to the Office of Information and Regulatory

Affairs between 1999 and 2009 documenting agencies’

failure to submit more than 1,000 rules to Congress

and urging the Executive Branch to take its CRA

responsibilities more seriously. See Copeland, supra.

These urgings fell on deaf ears. Only two of the 101

unsubmitted rules identified in GAO’s May 2009

letter had been submitted five months later. Id. After

some additional hectoring by GAO and OIRA,

agencies submitted a dozen or so additional rules but,

as of November 2009, many of the identified rules had

still not been submitted. Id.

A more recent study by the Brookings Institution

found that, as of 2017, agencies had failed to submit

348 significant rules. See Phillip A. Wallach &

Nicholas W. Zeppos, Brookings Inst. Report, How

powerful is the Congressional Review Act? (Apr. 4,

2017).16 The study also found that the rate at which

agencies had failed to submit significant rules was

climbing. Id. (reporting that agencies failed to submit

significant rules to Congress during the Obama

administration at a rate 36% greater than during the

Bush administration). See also GAO, OMB Should

Work with Agencies to Improve Congressional Review

Act Compliance During and at the End of Presidents’

Terms (Mar. 2018) (finding a similar trend).17 Other

studies have found an even higher number of

unsubmitted significant rules. See, e.g., Cause of

Action Institute, Hundreds of Important Rules

Vulnerable To Repeal Under the Congressional Review

https://www.brookings.edu/research/how-powerful-is-thecongressional-review-act/.

http://www.gao.gov/assets/700/690624.pdf.

Act (Mar. 29, 2017)18 (finding 654 significant rules had

not been submitted).

Because these recent studies consider only

“significant” rules—those exceeding $100 million per

year in costs or benefits or having similarly large

noneconomic impacts, see E.O. 12,866, 58 Fed. Reg.

51,735

(Sept.

30,

1993)—they

necessarily

underestimate the extent of agencies’ disregard for

the CRA. See Wallach & Zeppos, supra. See also E.O.

12,866, § 3(f), 58 Fed. Reg. 51,735. But rules can have

significant effects, in the ordinary sense, without

meeting this high threshold. At least six of the 17

rules that Congress has disapproved under the CRA

were deemed less than significant by the agency

issuing them.19

https://causeofaction.org/hundreds-important-rulesvulnerable-repeal-under-congressional-review-act/.

19 See, e.g., Pub. L. No. 115-172, 132 Stat. 1290 (May 21, 2018)

(disapproving CFPB Bulletin 2013-02 (Mar. 21, 2013)); Pub. L.

No. 115-23, 131 Stat. 89 (Apr. 13, 2017) (disapproving Dep’t of

Health and Human Serv., Rule Relating to Compliance with Title

X Requirements, 81 Fed. Reg. 91,852 (Dec. 19, 2016)); Pub. L. No.

115-21, 131 Stat. 87 (Apr. 3, 2017) (disapproving Dep’t of Labor,

Clarification of Employer’s Continuing Obligation to Make and

Maintain an Accurate Record of Each Recordable Injury and

Illness Rule, 81 Fed. Reg. 91,792 (Dec. 19, 2016)); Pub. L. No.

115-20, 131 Stat. 86 (Apr. 3, 2017) (disapproving Dep’t of

Interior, Non-Subsistence Take of Wildlife, and Public

Participation and Closure Procedures, on National Wildlife

Refuges in Alaska Rule, 81 Fed. Reg. 52,247 (Aug. 5, 2016)); Pub.

L. No. 115-17, 131 Stat. 81 (Mar. 31, 2017) (disapproving Dep’t

of Labor, Rule Establishing Appropriate Occupations for Drug

Testing of Unemployment Compensation Applicants, 81 Fed.

Reg. 50,298 (Aug. 1, 2016)); Pub. L. No. 115-12, 131 Stat. 76

(Mar. 27, 2017) (disapproving Bureau of Land Management,

Moreover, agencies have entirely withheld certain

categories of rules, such as interpretive rules and

guidance documents. In 2019, the Acting Director of

the Office of Management and Budget issued a

memorandum reminding agencies that the CRA

applies to these rules and they too must be submitted

to Congress for review. See Memorandum from

Russell T. Vought, Acting Director, Office of

Management and Budget, to the Heads of Executive

Departments and Agencies (Apr. 11, 2019).20 See also

Pub. L. No. 115-172 (disapproving a guidance

document under the CRA).

It is difficult to determine the full extent of agency

violations of the CRA. Agencies do not publish lists of

unsubmitted rules (obviously). So the violation must

be deduced from the absence of a rule in a GAO

database21 and the House and Senate’s Executive

Communications databases.22 See Wallach & Zeppos,

supra (describing the methodology used for the

Brookings Institution study). But by any measure,

agency noncompliance is a significant problem that

undermines the CRA’s operation and frustrates its

goal of restoring democratic accountability over the

administrative state. By assuring agencies they will

pay no price for violating the CRA, the Tenth Circuit’s

Resource Management Planning Rule, 81 Fed. Reg. 89,580

(Dec. 12, 2016)).

https://www.whitehouse.gov/wp-content/uploads/2019/04/M19-14.pdf.

https://www.gao.gov/legal/other-legal-work/congressionalreview-act#database (last visited Feb. 5, 2021).

22https://www.senate.gov/reference/common/faq/how_to_executiv

ecommunications.htm (last visited Feb. 5, 2021).

decision is likely to worsen this already significant

problem.

Withholding Judicial Review Causes

Significant Harm to Regulated

Parties and Undermines the Policies

Underlying Unsubmitted Rules

Finally, the decision below has significant

practical consequences for unsubmitted rules and

those affected by them. None of these rules are

lawfully in effect yet an agency may sometimes treat

them as if they are. This puts those who are regulated

by such rules or otherwise depend on them in an

unfair catch-22: they must follow these rules but

cannot be certain that they bind the agency.

The PECE Rule, for instance, is intended to

encourage groups like KNRC to develop voluntary

conservation plans for at-risk species. 68 Fed. Reg. at

15,114-15. However, the success of these plans

depends on the ability of landowners, industry, and

conservationists to rely on the rule’s incentives. Id. at

15,104. That the rule is not lawfully in effect

undermines these incentives by providing no

assurances to participating landowners and by

creating uncertainty whether the rule binds the

agency. Indeed, Interior has previously failed to follow

the PECE Rule in a decision involving the lesser

prairie chicken, the very species KNRC is trying to

conserve. Permian Basin Petroleum Ass’n, 127 F.

Supp. 3d at 707-08.

Although these concerns are weighty enough in

the context of the lesser prairie chicken and the more

than 17 million acres of land it occupies, the PECE

Rule has been critical to conservation efforts for many

more species and is likely to continue having broad

importance.23 However, because application of the

PECE Rule results in a species not being listed under

the Endangered Species Act, applications of the PECE

Rule have frequently been litigated.24 In light of this

history of consistent litigation, there is no good reason

for Interior, having learned that the PECE Rule has

not been submitted and is not lawfully in effect, to

continue withholding the rule from Congress and

leave those developing conservation plans in limbo.

The Tenth Circuit’s interpretation would permit

any rule to “go into effect without oversight or

approval and there [would be] no legal remedy

available for an affected third party.” Tugaw Ranches,

362 F. Supp. 3d at 883. That unfair result has

significant consequences for the policies underlying

countless unsubmitted rules and the individuals,

industries, and organizations subject to or depending

on those rules.

23 See, e.g., 12-Month Finding for the Monarch Butterfly, 85 Fed.

Reg. 81,813, 81,815 (Dec. 17, 2020) (describing ongoing

conservation efforts for the monarch butterfly and concluding

that a listing is precluded based in part on these efforts);

Withdrawal of the Proposed Rule to List Dunes Sagebrush

Lizard, 77 Fed. Reg. 36,872 (June 19, 2012) (declining to list a

species based on conservation efforts spurred by the PECE Rule).

24 See, e.g., Defenders of Wildlife v. Jewell, 815 F.3d 1 (D.C. Cir.

2016); Desert Survivors v. U.S. Dep’t of Interior, 321 F. Supp. 3d

1011 (N.D. Cal. 2018); Rocky Mountain Wild v. Walsh, 216 F.

Supp. 3d 1234 (D. Colo. 2016); Permian Basin Petroleum Ass’n,

127 F. Supp. 3d 700; Western Watersheds Project v. Fish &

Wildlife Serv., 535 F. Supp. 2d 1173 (D. Idaho 2007); Western

Watersheds Project v. Foss, No. 04-cv-168, 2005 WL 2002473 (D.

Idaho Aug. 19, 2005).

CONCLUSION

For the foregoing reasons, the petition for

certiorari should be granted and the Tenth Circuit’s

decision reversed.

DATED: February 2021.

JONATHAN WOOD

JEFFREY W. MCCOY

CALEB R. TROTTER

Counsel of Record

TODD GAZIANO

Pacific Legal Foundation

930 G Street

3100 Clarendon Blvd.,

Sacramento, California 95814

Suite 610

Telephone: (916) 419-7111

Arlington, VA 22201-5330 JMccoy@pacificlegal.org

Telephone: (202) 888-6881 CTrotter@pacificlegal.org

JWood@pacificlegal.org

TGaziano@pacificlegal.org

KENNETH W. ESTES

Calihan Law Firm

P.O. Box 1016

Garden City, KS 67846

Telephone: (620) 276-2381

kestes@calihanlawfirm.com

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.