Amicus Curiae Brief — Kansas Natural Resource Coalition, Petitioner v. Department of the Interior, et al.

NO. 20-1195

In the

Supreme Court of the United States

________________

KANSAS NATURAL RESOURCE COALITION,

Petitioner,

v.

U.S. DEPARTMENT OF THE INTERIOR;

SCOTT DE LA VEGA, in his official capacity as Acting

Secretary of the Interior; 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,

Respondents.

________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

________________

BRIEF FOR THE CATO INSTITUTE

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

________________

Christine Carletta

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

ccarletta@kslaw.com

Ilya Shapiro

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave. NW

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

Counsel for Amicus Curiae

March 31, 2021

QUESTIONS PRESENTED

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 Congressional Review Act’s rulesubmission requirement are subject to judicial review.

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST ................................... 1

INTRODUCTION

AND

SUMMARY

OF

REASONS TO GRANT THE PETITION ............... 2

REASONS TO GRANT THE PETITION .................. 5

I.

The Tenth Circuit’s Decision Barring Judicial

Review of Agency Action Frustrates the Text

and Purpose of the Congressional Review

Act ........................................................................ 5

II. Without Judicial Review, Agencies Will

Continue to Disregard the Congressional

Review Act ......................................................... 10

III. The Courts Are Best Situated to Curb This

Type of Agency Abuse ....................................... 14

CONCLUSION ......................................................... 16

iii

TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967)...................................... 9, 14, 15

Bennett v. Spear,

520 U.S. 154 (1997)................................................ 14

Bowen v. Massachusetts,

487 U.S. 879 (1988)................................................ 14

Cuozzo Speed Techs., LLC v. Lee,

136 S. Ct. 2131 (2016).............................................. 6

Home Builders Ass’n of N. Cal.

v. U.S. Fish & Wildlife Serv.,

268 F. Supp. 2d 1197 (E.D. Cal. 2003) .................... 7

INS v. Chadha,

462 U.S. 919 (1983).............................................. 3, 7

King v. Burwell,

576 U.S. 473 (2015).................................................. 3

Kisor v. Wilkie,

139 S. Ct. 2400 (2019).............................................. 2

Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015)............................................ 6, 10

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991).................................................. 9

Sackett v. EPA,

566 U.S. 120 (2012).......................................... 14, 15

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018).............................................. 6

Smith v. United States,

508 U.S. 223 (1993).................................................. 7

iv

U.S. Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807 (2016).................................. 5, 14, 15

United States v. Reece,

956 F. Supp. 2d 736 (W.D. La. 2013) ...................... 7

United States v. S. Ind. Gas & Elec. Co.,

No. IP99-1692CMS,

2002 WL 31427523 (S.D. Ind. Oct. 24, 2002).......... 6

Statutes & Regulations

5 U.S.C. § 704 ..................................................... 14, 15

5 U.S.C. § 801 ..................................................... 3, 8, 9

5 U.S.C. § 802 ............................................................. 3

5 U.S.C. § 803 ............................................................. 3

5 U.S.C. § 804 ............................................................. 3

5 U.S.C. § 805 ......................................................... 3, 5

5 U.S.C. § 806 ......................................................... 3, 9

5 U.S.C. § 807 ............................................................. 3

5 U.S.C. § 808 ............................................................. 3

33 U.S.C. § 1251, et seq. ........................................... 15

68 Fed. Reg. 15,100 (Mar. 28, 2003) .......................... 3

81 Fed. Reg. 86,315 (Nov. 30, 2016)......................... 16

Other Authorities

142 Cong. Rec. 6907 (1996)

(statement of Rep. McIntosh) .................................. 7

142 Cong. Rec. 6922 (1996)

(joint explanatory statement of House and

Senate Sponsors).................................................. 3, 7

v

142 Cong. Rec. 8196 (1996)

(joint statement of Sens. Nickles,

Reid, and Stevens) ................................................... 7

142 Cong. Rec. S3683

(daily ed. Apr. 18, 1996)

(joint statement of Sens. Nickles,

Reid, and Stevens) ................................................... 3

Winston Churchill,

In the Balance:

Speeches 1949 and 1950 (1952)............................... 2

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 (2018) .................................. 10

Curtis Copeland,

Cong. Research Serv.,

Congressional Review Act:

Many Recent Final Rules Were Not

Submitted to GAO and Congress (2014) ........... 4, 11

Clyde Wayne Crews, Jr.,

Competitive Enter. Inst.,

Ten Thousand Commandments:

An Annual Snapshot of the

Federal Regulatory State (2019) ............................. 2

vi

Exec. Order 13892

Promoting the Rule of Law

Through Transparency and Fairness

in Civil Administrative Enforcement

and Adjudication,

84 Fed. Reg. 55,235 (Oct. 9, 2019)......................... 13

Exec. Order 13992,

Revocation of Certain Executive

Orders Concerning Federal Regulation,

86 Fed. Reg. 7049 (Jan. 25, 2021) ......................... 13

Exec. Order 14018,

Revocation of Certain Presidential Actions,

86 Fed. Reg. 11,855 (Feb. 24, 2021) ...................... 13

The Federalist Papers No. 62

(James Madison) ...................................................... 2

Tamara Keith,

Wielding a Pen and a Phone, Obama

Goes It Alone, NPR.com (Jan. 20, 2014),

https://www.npr.org/2014/01/20/263766043/

wielding-a-pen-and-a-phone-obama-goes-italone ....................................................................... 14

Paul J. Larkin, Jr.,

Essay: A New Law Enforcement

Agenda for a New Attorney General,

17 Geo. J.L. & Pub. Pol’y 231 (2019) ..................... 12

Paul J. Larkin, Jr.,

Reawakening the Congressional Review Act,

41 Harv. J.L. & Pub. Pol’y 187 (2018)........... passim

Majority Staff Report,

House Comm. on Oversight & Gov’t

Reform, Shining Light on Regulatory Dark

Matter (2018) ......................................................... 11

vii

Morton Rosenberg,

Cong. Research Serv., RL30116,

Congressional Review of Agency

Rulemaking: An Update and Assessment

of the Congressional Review Act After a

Decade (2008) ........................................................... 8

Answer,

Tugaw Ranches, LLC v. U.S. Dep’t of

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

(D. Idaho Mar. 25, 2019), ECF No. 43 .................. 13

U.S. Mot. to Dismiss,

Tugaw Ranches, LLC v. U.S. Dep’t of

Interior, No. 4:18-cv-00159-CWD

(D. Idaho June 22, 2018), ECF No. 22 .................. 12

U.S. Dept. of Justice,

Attorney General’s Manual on the

Administrative Procedure Act (1947) ..................... 2

Memorandum from Russell T. Vought,

Acting Dir., OMB, M-19-14,

to Heads of Executive Departments and

Agencies (Apr. 11, 2019) ........................................ 12

Phillip A. Wallach & Nicholas W. Zeppos,

Brookings Inst., How Powerful is the

Congressional Review Act? (Apr. 4, 2017) ............. 11

STATEMENT OF INTEREST 1

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the

foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences,

and produces the annual Cato Supreme Court Review.

This case interests Cato because it concerns the

separation of powers and respect for Congress’s desire

to reassert democratic accountability over the

administrative state.

1 No counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward its preparation or submission. Counsel of record for all

parties have received timely notice and have consented to this

filing in letters on file with the Clerk’s office.

2

INTRODUCTION AND

SUMMARY OF REASONS

TO GRANT THE PETITION

Federal agencies promulgate far more rules than

Congress passes statutes. See Kisor v. Wilkie, 139 S.

Ct. 2400, 2446–47 (2019) (Gorsuch, J., concurring in

the judgment) (noting that agency regulations “touch[]

almost every aspect of daily life” and “dwarf the

statutes enacted by Congress”). In 1949, Winston

Churchill remarked, “If you make 10,000 regulations

you destroy all respect for the law.” Winston

Churchill, In the Balance: Speeches 1949 and 1950 21

(1952); see The Federalist Papers No. 62 (James

Madison). The administrative state passed that

threshold long ago and shows no signs of stopping. See

Kisor, 139 S. Ct. at 2446–47) (Gorsuch, J., concurring

in the judgment) (noting that “agencies add thousands

more pages of regulations every year”); see also Clyde

Wayne Crews, Jr., Competitive Enter. Inst., Ten

Thousand Commandments: An Annual Snapshot of

the Federal Regulatory State (2019). Every day,

federal agencies issue myriad rules that touch

virtually every aspect of American economic, social,

and political life. That is important because agency

rules can have the same effect as statutes. U.S. Dept.

of Justice, Attorney General’s Manual on the

Administrative Procedure Act 30 n.3 (1947).

For too long, agencies have issued rules virtually

unchecked, and without any accountability to the

American people. For years, Congress used the

“legislative veto” to oversee the administrative state.

Once this Court held the legislative veto

unconstitutional in INS v. Chadha, 462 U.S. 919, 959

3

(1983), however, Congress found a new way to exercise

its oversight function and protect the public interest.

The vehicle it chose was the Congressional Review Act

(“CRA”). See 5 U.S.C. §§ 801–08. That statute restores

the “delicate balance between the appropriate roles of

the Congress in enacting laws, and the Executive

Branch in implementing those laws” by creating a

fast-track procedure for Congress to set aside a new

rule before it takes effect. 142 Cong. Rec. S3683 (daily

ed. Apr. 18, 1996) (joint statement of Sens. Nickles,

Reid, and Stevens); see also 142 Cong. Rec. 6926 (1996)

(statement submitted by House sponsors).

The Tenth Circuit’s decision below undermines

Congress’s efforts to provide essential oversight. See

App.21–24. The court found that the Kansas Natural

Resource Coalition (“KNRC”) cannot maintain an

action challenging the Department of Interior’s failure

to submit a final regulation—its Policy for Evaluation

of Conservation Efforts When Making Listing

Decisions (“PECE Rule”)—to Congress in accordance

with the CRA. Id.; see 68 Fed. Reg. 15,100 (Mar. 28,

2003). That expansive interpretation of the statute’s

judicial review bar effectively forecloses review of any

claim of illegal conduct, including final agency actions

that impact private rights.

The Tenth Circuit’s decision cannot be squared

with the CRA’s text, structure, or purpose. Properly

interpreted, the CRA forecloses judicial review of

Congress’s actions. It does not preclude review of the

rule-issuing agency’s actions to enforce compliance

with the CRA in the first instance. Any other reading

renders core provisions of the statute meaningless.

See King v. Burwell, 576 U.S. 473, 486 (2015) (“Our

4

duty, after all, is to construe statutes, not isolated

provisions.”). Moreover, by stripping the judiciary of

its power to enforce the CRA’s requirements against

recalcitrant agencies, the Tenth Circuit has granted

agencies a blank check to enforce their ultra vires

rules against the citizens of Colorado, Kansas, New

Mexico, Oklahoma, Utah, and Wyoming.

The government has a large check to cash. By

effectively eliminating judicial review, the Tenth

Circuit’s holding will allow agencies to continue

disregarding the CRA’s requirements. The GAO

concluded that agencies failed to submit more than

1,000 rules to Congress between 1999 and 2009, and

more recent estimates are even worse. See Curtis

Copeland, Cong. Research Serv., Congressional

Review Act: Many Recent Final Rules Were Not

Submitted to GAO and Congress 17–18 (2014)

(estimating that twelve percent of rules published in

the Federal Register from 1997 through 2011 were not

submitted to Congress).

Judicial review of an agency’s noncompliance with

the CRA is critical to protecting private parties

against

abusive

government

practices.

The

government regularly enforces its programs through

demand letters sent to regulated parties, threatening

litigation for the alleged violation of an agency rule.

The threat of litigation forces out-of-court settlements

and effectively insulates the rule from meaningful

review, even if the rule is not properly promulgated or

“in effect” in accordance with the CRA’s strictures.

Unless the decision below is reversed, agencies

will have even greater reason to adopt rules that are

not submitted to Congress, and those rules will remain

5

under the radar until they are wielded against an

unsuspecting private party.

The mission of the federal judiciary is to protect

private parties against unlawful government action.

For that to occur in this setting, the courts must

enforce the CRA’s requirements against agencies. The

Supreme Court has told parties that they “need not

await enforcement proceedings before challenging

final agency action where such proceedings carry the

risk of serious criminal and civil penalties.” U.S. Army

Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815

(2016) (cleaned up). KNRC, and the citizens under the

Tenth Circuit’s jurisdiction, are entitled to know

whether and to which rules they are subject. The CRA

does not strip the courts of its role in protecting

against illegal agency action. This Court should grant

the petition for certiorari to correct the Tenth Circuit’s

error.

REASONS TO GRANT THE PETITION

I.

The Tenth Circuit’s Decision Barring

Judicial Review of Agency Action Frustrates

the Text and Purpose of the Congressional

Review Act.

The Tenth Circuit’s decision—that Section 805 of

the CRA forecloses judicial review of an agency’s

failure to comply with its requirements—cannot be

squared with the purpose or the text of the statute.

App.21–24. Section 805 provides that “[n]o

determination, finding, action, or omission under this

chapter shall be subject to judicial review.” 5 U.S.C.

§ 805. Reading Section 805 as expansively as possible,

the Tenth Circuit held that because Interior’s failure

to submit the PECE Rule to Congress qualified as an

6

“omission” arising “under” the CRA’s requirements, it

is “covered by the plain language of § 805, and [the

court] lack[ed] subject matter jurisdiction to review

[Interior’s] omission.” App.22.

As a matter of pure textual interpretation, the

decision below is flawed. First, an agency does not

promulgate a rule “under” the CRA; it relies on the

substantive lawmaking authority that Congress

granted it in the relevant implementing statute.

United States v. S. Ind. Gas & Elec. Co., No. IP991692CMS, 2002 WL 31427523, at *5 (S.D. Ind. Oct. 24,

2002) (“Agencies do not make findings and

determinations under this chapter; Congress, on the

other hand, is required to make a number of findings

and determinations under the CRA.”).

Second, because agencies make findings and

promulgate rules under the Administrative Procedure

Act, there is a presumption that a private party can

also obtain judicial review of an agency’s actions.

Notably, the CRA contains no provision expressly

rebutting that presumption. See Cuozzo Speed Techs.,

LLC v. Lee, 136 S. Ct. 2131, 2155 (2016) (Alito, J.,

concurring) (noting that judicial review was necessary

to preclude agency “shenanigans” that would exceed

its statutory bounds, and “Congress cannot have

intended that.” (cleaned up)). And this Court has

“recognized a ‘strong presumption’ that Congress

means to allow judicial review of administrative

action.” Mach Mining, LLC v. EEOC, 575 U.S. 480,

480 (2015); see also SAS Inst., Inc. v. Iancu, 138 S. Ct.

1348, 1359 (2018) (“[W]e begin with the strong

presumption in favor of judicial review.” (cleaned up)).

7

Even beyond those obvious interpretive errors,

the Tenth Circuit’s reading of the CRA’s text torpedoes

its evident purpose by nullifying its usefulness in the

circumstances where it is needed the most: when an

agency refuses to submit a rule to Congress, but

continues to use the rule to muscle private parties into

compliance. See, e.g., United States v. Reece, 956 F.

Supp. 2d 736, 743–44 (W.D. La. 2013) (ruling that

Section 805 does not bar review of a CRA

noncompliance claim); Home Builders Ass’n of N. Cal.

v. U.S. Fish & Wildlife Serv., 268 F. Supp. 2d 1197,

1234–35 (E.D. Cal. 2003) (rejecting a CRA

noncompliance claim on the merits). Such a result is

counter to the circumstances that prompted Congress

to act and to the language of the statute itself.

See Smith v. United States, 508 U.S. 223, 241 (1993)

(Scalia, J., dissenting) (noting that while the definition

of a word might permit a broader reading of statute

provision at issue, the word should instead be read in

context, rather than for any possible meaning).

Before the CRA, Congress routinely relied on the

legislative veto to check rogue agency action. But after

INS v. Chadha, 462 U.S. at 944–59, Congress passed

the CRA to create a process “that would approximate

a legislative veto as closely as Chadha would allow” in

a manner that satisfied Article I bicameralism and

presentment requirements. See Paul J. Larkin, Jr.,

Reawakening the Congressional Review Act, 41 Harv.

J.L. & Pub. Pol’y 187, 197 & n.21 (2018) (citing 142

Cong. Rec. 8196 (1996) (joint statement of

Sens. Nickles, Reid, and Stevens); id. at 6922, 6929

(joint explanatory statement of House and Senate

Sponsors); id. at 6907 (statement of Rep. McIntosh);

Morton Rosenberg, Cong. Research Serv., RL30116,

8

Congressional Review of Agency Rulemaking: An

Update and Assessment of the Congressional Review

Act After a Decade 37 (2008)).

The CRA was enacted to constrain agency

authority, increase democratic accountability, and

secure the separation of powers by providing Congress

with a way to review and potentially nullify

administrative rules before they go into effect.

“[B]efore a rule can take effect,” the CRA requires

(much like a legislative veto) that an agency submit

the rule for congressional review. 5 U.S.C.

§ 801(a)(1)(A). Submission of a rule to Congress is “a

critical event for CRA purposes.” Larkin, 41 Harv. J.L.

& Pub. Pol’y at 201. After an agency submits a rule to

Congress, Congress generally has 60 days to decide

whether to nullify the rule, and that clock does not

begin to run until both houses have received the

agency’s report. 5 U.S.C. § 801(d); see Rosenberg,

RL30116,

Congressional

Review

of

Agency

Rulemaking, supra, at 3 n.5.

The CRA is careful to not let an agency skirt these

submission requirements. It provides detailed

procedures and timelines to allow Congress time to

review a rule when fewer than 60 legislative days

remain and does not provide a statute of limitations

on its opportunity to review a rule. See Larkin, 41

Harv. J.L. & Pub. Pol’y at 241–43, 247. If both

chambers of Congress pass a joint resolution to

invalidate the rule, and the president signs that

resolution (or Congress overrides his veto), the rule is

not only invalidated, but the reporting agency is also

barred from promulgating a new rule that is

9

“substantially the same” as the previous rule. See 5

U.S.C. § 801(b)(2).

It would make no sense for Congress to create this

detailed oversight regime without a way to enforce its

strictures. Judicial review of agency action is that

enforcement mechanism; Congress gave no indication

that it had any intent to eliminate the historic role

courts have played in halting illegal agency actions.

Larkin, 41 Harv. J.L. & Pub. Pol’y at 222; see also

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,

498 (1991) (holding that a statutory preclusion

provision did not deprive courts of constitutional

challenges to agency conduct); Abbott Labs. v.

Gardner, 387 U.S. 136, 152–53 (1967) (permitting preenforcement review of agency action). Perhaps the

clearest indication that Congress intended to permit

judicial review over certain actions arising in

connection with the CRA is the CRA’s savings clause.

See 5 U.S.C. § 806. A complete bar to judicial review

would relegate a savings provision to mere

surplusage; no situation could arise where a court

would find a section of the text or application of the

CRA “invalid.” Id.; Larkin, 41 Harv. J.L. & Pub. Pol’y

at 229.

As a practical matter, a requirement without an

enforcement mechanism is not a requirement at all.

Allowing the Tenth Circuit’s decision to stand will

allow agencies to—as Interior has here—circumvent

both the statute and Congressional oversight by

simply ignoring the CRA, withholding a rule, sitting

on it for 60 days, and waiting for the congressional

review period to expire. Accordingly, the only way the

CRA provisions have force is if courts enforce them

10

against wayward agencies. See 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).

Critically, Congress itself cannot enforce these

provisions; it cannot compel an agency to submit a rule

to it, and it cannot stop an agency from operating as

though the rule in in effect. Larkin, 41 Harv. J.L. &

Pub. Pol’y at 230. Nor can Congress protect the rights

of private parties. As commentators have noted,

judicial review is necessary because although the

political branches can “engage in political wheeling

and dealing[,]” private parties “do not sit at the table

in that game. They need the courts to protect them[.]”

Id.

The Tenth Circuit’s view of the CRA—that an

agency can refuse to submit its rules to Congress and

still enforce them against private parties—cannot

stand. Such a result is fundamentally at odds with the

law’s purpose, renders multiple CRA provisions

meaningless, and allows agencies to continue to amass

a virtually unchecked concentration of power over

policymaking. See Mach Mining, 575 U.S. at 488–89

(courts should presume judicial review is available to

avoid that result).

II. Without Judicial Review, Agencies Will

Continue to Disregard the Congressional

Review Act.

The decision below has enormous consequences

for the citizens of the states under its purview.

Agencies routinely ignore the CRA’s requirements.

11

While it is unclear precisely how many rules have

bypassed the CRA, the GAO concluded that agencies

failed to submit more than 1,000 rules to Congress

between 1999 and 2009. See Copeland, Congressional

Review Act, supra, at 17–18 (estimating that twelve

percent of agency rules published in the Federal

Register from 1997 through 2011 were not submitted

to Congress). Other parties have offered a variety of

numbers, which are even more grim. See Majority

Staff Report, House Comm. on Oversight & Gov’t

Reform, Shining Light on Regulatory Dark Matter 10

(2018) (“The information obtained by the Committee

shows, of the more than 13,000 guidance documents

identified, agencies sent only 189 to Congress and

GAO in accordance with the CRA.”); Phillip A.

Wallach & Nicholas W. Zeppos, Brookings Inst., How

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

2017) (finding that, as of 2017, agencies had failed to

submit 348 significant rules).

Judicial review of an agency’s noncompliance with

the CRA is critical to protecting private parties

against these scores of unaccounted for rules and

abusive government practices. The government

routinely threatens litigation for an alleged violation

of an agency rule unless the regulated party pays a

(usually hefty) fine and changes its practices to comply

with the agency’s demands. Rather than defend and

litigate against agency overreach, a company will

often instead choose a comply-and-pay approach to

mitigate costs. The agency, of course, does not pay

private counsel for litigation—agency and Justice

Department lawyers handle those cases—so the

agency does not take a hit to its budget by going to

court.

12

The result is that only private parties bear the

cost of litigation, which enables the federal

government to twist a private party’s arm without a

lawsuit ever being filed. Agencies thus use their inputs

(e.g., appropriations, personnel) to generate outputs

(e.g., an increase in new enforcement actions), rather

than pursuing beneficial outcomes (e.g., overall

improvement in public health) because it is too

difficult to measure the success of such outcomes. See,

e.g., Paul J. Larkin, Jr., Essay: A New Law

Enforcement Agenda for a New Attorney General, 17

Geo. J.L. & Pub. Pol’y 231, 242–45 (2019).

It is clear that the government does not intend to

comply with the CRA’s requirements. True enough,

the Office of Management and Budget acknowledged

the problem and issued a memorandum to all agencies

reminding them of the CRA’s scope and their

obligations to submit rules. See Memorandum from

Russell T. Vought, Acting Dir., OMB, M-19-14, to

Heads of Executive Departments and Agencies 2–3

(Apr. 11, 2019).

But Interior’s defense throughout this action is far

more telling. Interior has not, in this or any other case,

argued that it has remedied, or that it intends to

remedy, its error. See, e.g., U.S. Mot. to Dismiss at 4–

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

No. 4:18-cv-00159-CWD (D. Idaho June 22, 2018),

ECF No. 22. Far from it: by arguing that the courts are

barred from reviewing agency action, Interior instead

has made it known that the government has no

intention of complying with the CRA. Indeed, it was

only after the district court in Tugaw Ranches found

that section 805 did not prohibit judicial review of

13

Interior’s alleged CRA violations, that Interior finally

cured them. See Answer ¶ 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.

Nor does the new administration show signs of

changing course. President Biden has already issued

multiple executive orders rolling back President

Trump’s deregulatory agenda. See Exec. Order 13992,

Revocation of Certain Executive Orders Concerning

Federal Regulation, 86 Fed. Reg. 7049, 7049 (Jan. 25,

2021); Exec. Order 14018, Revocation of Certain

Presidential Actions, 86 Fed. Reg. 11,855 (Feb. 24,

2021). That includes the withdrawal of an executive

order issued by his predecessor that would have

required agencies to make publicly available on their

websites the rules they might use to justify regulating

private parties. Exec. Order 13992, 86 Fed. Reg. at

7049 (revoking Exec. Order 13892, Promoting the Rule

of Law Through Transparency and Fairness in Civil

Administrative Enforcement and Adjudication, 84

Fed. Reg. 55,235 (Oct. 9, 2019)).

Likewise, President Biden has issued numerous

orders directing agencies to take significant action,

none of which have instructed the agency to comply

with the CRA. President Biden has stated that he

intends to “empower[] agencies to use appropriate

regulatory tools to achieve [the administration’s]

goals,” an approach that harkens back to President

Obama’s “pen and phone” method of policymaking.

See Exec. Order 13992, 86 Fed. Reg. at 7049; Tamara

Keith, Wielding a Pen and a Phone, Obama Goes It

Alone, NPR.com (Jan. 20, 2014), https://www.npr.org/

14

2014/01/20/263766043/wielding-a-pen-and-a-phoneobama-goes-it-alone.

No

matter

the

administration,

agency

noncompliance is a significant problem that

undermines Congress’s efforts to manage agency

action. By shielding agencies from judicial review, the

Tenth Circuit’s decision will embolden agencies to

continue to disregard the CRA.

III. The Courts Are Best Situated to Curb This

Type of Agency Abuse.

The judiciary is best suited to ensure that

agencies comply with the CRA’s scheme. The Tenth

Circuit found that it could not consider KNRC’s claim

because it was “not injured by an analysis that has yet

to take place.” App.20. To the contrary, parties need

not wait for enforcement proceedings before

challenging final agency action where such

proceedings carry the risk of “serious criminal and

civil penalties.” Hawkes, 136 S. Ct. at 1815 (quoting

Abbott Labs., 387 U.S. at 153); Sackett v. EPA, 566

U.S. 120, 127 (2012); Larkin, 41 Harv. J.L. & Pub.

Pol’y at 231. The Administrative Procedure Act has

long provided an injured party with a cause of action

to sue an agency if that agency acts in an unlawful or

arbitrary and capricious manner. See Bowen v.

Massachusetts, 487 U.S. 879, 891–92 (1988) (“[I]t is

undisputed” that the APA “was intended to broaden

the avenues for judicial review of agency action by

eliminating the defense of sovereign immunity . . . .”).

Judicial review is available to an injured party, for

“final agency action for which there is no other

adequate remedy in a court.” 5 U.S.C. § 704; see

Bennett v. Spear, 520 U.S. 154, 178 (1997) (detailing

15

requirements for an agency’s action to be considered

final).

This Court’s decisions in Sackett and Hawkes

provide guidance concerning the scope of judicial

review in these situations. See Larkin, 41 Harv. J.L. &

Pub. Pol’y at 231. The Sacketts sought judicial review

of an EPA compliance order that subjected them to the

permitting requirements of the Clean Water Act.

Sackett, 566 U.S. at 124; 33 U.S.C. §§ 1251–1387. The

Court noted that while the Sacketts could defend

against an enforcement action, the opportunity to

raise that claim as a defense did not afford them with

an “adequate remedy in a court.” 566 U.S. at 127–28

(quoting 5 U.S.C. § 704). The Court reasoned that “the

Sacketts cannot initiate that process, and each day

they wait for the agency to drop the hammer, they

accrue, by the Government’s telling, an additional

$75,000 in potential liability.” Id. at 127.

Hawkes involved a similar challenge to the Clean

Water Act’s wetlands designation and permitting

requirements. 136 S. Ct. at 1812–13. The Court again

rejected the government’s argument that the ability to

raise a procedural violation as a defense in an

enforcement action is an adequate remedy. The Court

instead found that “parties need not await

enforcement proceedings before challenging final

agency action where such proceedings carry the risk of

‘serious criminal and civil penalties.”’ Id. at 1815

(quoting Abbott Labs., 387 U.S. at 153).

The KNRC was well within its rights to raise the

claim that Interior has not complied with the CRA.

The KNRC’ s conservation plan is subject to the PECE

Rule and the Lesser Prairie-Chicken is again under

16

consideration for listing. See 81 Fed. Reg. 86,315,

86,317 (Nov. 30, 2016). Should KNRC’s efforts fail, the

Lesser Prairie-Chicken may join the Endangered

Species Act’s list, and KNRC’s members will be subject

to its burdensome regulations.

CONCLUSION

For these reasons, and those stated by petitioner,

the Court should grant the petition for certiorari.

Respectfully submitted,

Christine Carletta

Ilya Shapiro

KING & SPALDING LLP

Counsel of Record

1700 Pennsylvania Ave. NW CATO INSTITUTE

Washington, DC 20006

1000 Mass. Ave. NW

(202) 737-0500

Washington, DC 20001

ccarletta@kslaw.com

(202) 842-0200

ishapiro@cato.org

Counsel for Amicus Curiae

March 31, 2021