Petition for Writ of Certiorari — Chenoweth v. Clinton
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No. ____O6EIGE Oi THG, LER
In The
Supreme Court of the United States
¢
The Honorable HELEN CHENOWETH, the
Honorable BOB SCHAFFER, the Honorable
DON YOUNG, and the Honorable RICHARD W. POMBO,
all in their official capacities,
Petitioners,
WILLIAM J. CLINTON, President of the United States,
GEORGE T. FRAMPTON, JR., Acting Chair of the
Council on Environmental Quality, individually
and in their official capacities, and the
UNITED STATES OF AMERICA,
Respondents.
¢
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
a
PETITION FOR WRIT OF CERTIORARI
¢
WILLIAM Perry PENDLEY*
“Counsel of Record
ROGER JACQUES KOTHARY
Mountain States Legal Foundation
707 Seventeenth Street, Suite 3030
Denver, Colorado 80202
(303) 292-2021
Attorneys for Petitioners
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
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QUESTIONS PRESENTED
Whether Members of Congress have standing to chal-
lenge an unconstitutional action by the President of the
United States that usurps constitutionally prescribed law-
making powers assigned to Congress by Article I of the
U.S. Constitution:
1. When the ability of those Members to exercise
their lawmaking powers was “nullified” in the
manner of Coleman v. Miller, 307 U.S. 433 (1939)?
2. When, unlike Members of Congress in Raines v.
Byrd, 117 S.Ct. 2312 (1997), those Members were
denied the ability to exercise their lawmaking
powers in the manner prescribed by the Constitu-
tion?
3. When the standing of those Members to chal-
lenge such an unconstitutional action, as repeat-
edly recognized by the U.S. Court of Appeals for
the District of Columbia Circuit, was not over-
turned by Raines v. Byrd?
**
LIST OF PARTIES
The Honorable Helen Chenoweth, the Honorable Bob
Schaffer, the Honorable Don Young, and the Honorable
Richard W. Pombo are all duly elected Members of the
United States House of Representatives, who, in their
official capacities as Members of Congress, were Plaintiffs
before the United States District Court for the District of
Columbia and Appellants before the United States Court
of Appeals for the District of Columbia Circuit.
William J. Clinton, President of the United States, and
Kathleen A. McGinty, Chair of the Council on Environ-
mental Quality, individually and in their official capaci-
ties, were Defendants before the United States District
Court for the District of Columbia and Appellees before
the United States Court of Appeals for the District of
Columbia Circuit. Ms. McGinty has been replaced as
Chair of the Council on Environmental Quality by George
T. Frampton, Jr. The United States of America was also a
party below as both Defendant and Appellee.
SoS ENROL SRA oe El OP lal SN Ba
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STATEMENT OF RELATED CASES
There is no other related case.
iv
TABLE OF CONTENTS
Page
CUIRSE UGA FOAMS cos ccicciucvsavivdansnasa i
LRG Se PET Sy Ski o5a weeds A ech dee weaerveneel ii
STATEMENT OF RELATED CASES ................ iii
SA CP ARR hb ea kad ecs cine HERS vi
CP NNCMT MUERTE vs cork stave abcd Kos seceeseaeus 1
Fs NE ei oie Sate ahW a acee ediubewens 1
CONSTITUTIONAL PROVISIONS INVOLVED...... 1
STATUTES AND REGULATIONS INVOLVED ...... 3
SEALE A QC BEM the ia ssc ck csscaredacsens +
STATEMENT OP TACT ie ES 6
REASONS FOR GRANTING THE WRIT ........... 13
I. THIS CASE INVOLVES A MATTER OF EXCEP-
TIONAL CONSTITUTIONAL IMPORTANCE
ON WHICH THIS COURT HAS NEVER
RULED, THAT IS, THE ABILITY OF MEMBERS
OF CONGRESS TO ENSURE THE SEPARATION
OF POWERS SET FORTH IN THE CONSTITU-
EUs sd nak do ohek b CAEN ARATE EE CORMAN OOS 13
A. Because Concentration Of Power In The
Hands Of A Single Branch Is A Threat To
Liberty, It Is A Matter Of Exceptional
Importance That Must Be Addressed By
SOE NES hc avs 5a eae ucn i eaed heweees 13
B. This Exceptionally Important Matter Has
Never Been Addressed By This Court, Con-
trary To The Holding Of The District Of
COMMER CURCUEE SEER. sic ovine cscwen's ea's 15
ee ee ee ee ee ee ee a
OT Ee ee eo, oe eT
Il.
Il.
Vv
TABLE OF CONTENTS - Continued
Page
C. With Regard To This Exceptionally Impor-
tant Matter, The Decision Of The District Of
Columbia Circuit Court Is In True, Direct,
Intolerable, And Irreconcilable Conflict
With The Holdings Of This Court.........
1. Contrary to the holding of the District of
Columbia Circuit, the facts of this case
differ markedly from Raines v. Byrd .....
2. An application of Raines v. Byrd to this
case would have resulted in standing
SOE Gia ROTO S ios 5.5 ea ie wk
A TRUE, DIRECT, INTOLERABLE, AND IRREC-
ONCILABLE CONFLICT EXISTS BETWEEN THE
DECISION OF THE DISTRICT OF COLUMBIA
CIRCUIT AND DECISIONS OF THIS COURT
REGARDING THE ABILITY OF ELECTED REPRE-
SENTATIVES, WHOSE VOTES HAVE BEEN NUL-
LIFIED, TO HAVE STANDING TO CHALLENGE
SUCH VOTE NULLIFICATION .................
A. The District Of Columbia Circuit Misstated
And Misunderstood The Factual Analysis
er ROR GN hii tadiewie asia a
B. The Political Resolution Analysis Applied
By The District Of Columbia Circuit Is In
Conflict With The Analysis Applied By This
RS dk nptn Rebs ts shah ab oki ceeie re.
A TRUE, DIRECT, INTOLERABLE, AND
IRRECONCILABLE CONFLICT EXISTS
BETWEEN THE DECISION OF THE DISTRICT
OF COLUMBIA CIRCUIT AND DECISIONS OF
OTHER CIRCUIT COURTS OF APPEALS
REGARDING THE ABILITY OF COURTS TO
OVERTURN BINDING CASE LAW BY IMPLI-
CE bit ets SLi nie ASeaed vere aeneen Te Unlene ca
RE hi ERICA, ive eat kes
17
17
18
22
24
vi
TABLE OF AUTHORITIES
Page
Cases
Andrus v. Sierra Club, 442 U.S. 347 (1979) ........... 10
Bowsher v. Synar, 478 U.S. 714 (1986)...............-. 15
Byrd v. Raines, 956 F.Supp. 25 (D.D.C. 1997)......... 16
Chambers v. Thompson, 150 F.3d 1324 (11th Cir.
| PO Re Oe iamp reper preter yer IRS A ny 26
Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999)
jhwd ye uve sékeeav dee bie eee 1, 6, 16, 19, 20, 24
Chenoweth v. Clinton, 997 F.Supp. 36 (D.D.C. 1998)
PT POR ere er ee ee eet Ee 1, & 6, 2
Clinton v. City of New York, 524 U.S. 417, 118 S.Ct.
2OF1 120GE 65s ceca eee ka nik hehe 13, 14
Coleman v. Miller, 307 U.S. 433 (1939) ........... passim
Engineering Contractors Ass'n of S. Fla. Inc. v. Met-
ropolitan Dade County, 122 F.3d 895 (11th Cir.
1GOF diac kad 5 1:0 kt Re a a eee te eas 26
Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 13
Guevera v. Maritime Overseas Corp., 34 F.3d 1279 |
(Stes: Civ. TR ROP COI iin gas ea oe sa cee ens és 26
Hague v. Committee for Indus. Org., 101 F.2d 774
(Sed Cs. FR i eS ee Ges 27
INS ov. Chadion, 462 US. 919 (1963) <.cis bic awetees 15
Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)
2 0 9-4:shmin'ncwysge @ oso baie a pheasant ea ie 19, 21, 23
Kestler v. Board of Trustees of N. Carolina Local Gov't
Employees’ Retirement System, 48 F.3d 800 (4th
Cie. TIPS). on os ccesaccns hecsae tess cee 26
vii
TABLE OF AUTHORITIES ~ Continued
Page
Kleppe v. Sierra Club, 427 U.S. 390 (1976)............ 10
Marbury v. Madison, 5 U.S. 137 (1803)............... 13
Metropolitan Wash. Airports Authority v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U.S. 252
be FEES GRIER OE are SP EL Sy Pe IC a Aaa 14
Moore v. United States House of Representatives, 733
F.2d 946 (D.C. Cir. 1984)........ 15, 16, 19, 20, 23, 24
Northern Pipeline Constr. Co. v. Marathon Pipe Line
Ch Pa ie REID Aad aks 8 binvie eke dueceues 6000s 15
Printz v.' US., S21 U.S. G96 (1997)... wc ccccicccces 13, 14
Raines v. Byrd, 521 US. 811, 117 S.Ct. 2312 (1997). . .passim
U.S. v. Midwest Oil Co., 236 U.S. 459 (1915) ......... 11
Warth v. Seldin, 422 U.S. 490 (1975) .................. 6
CONSTITUTION
<x Geoiom,: Ast, 6,62. i okie ee ecivas 1, 11
U.S. Constitution, Art. I, § 7 (Separation of Powers
SNUG 0s 50h Pik SV Cra wei Pod we bk os 1
U.S. Constitution, Art. I, § 8, cl. 3 (Commerce
es RIPE fin 59k Shy Bigot Sareea ss rey Pe by ae air 2, 11
U.S. Constitution, Art. I, § 9, cl. 7 (Spending
RNa tase insult nse sekoseus decks ckeecceeccs y ey
Pei SI, FASE, ME, Decca ck ccc cacscniaas | ay 5
U5. Cometitution, Ast. 11, €2 «2.2... .ccc.ccsaaecss et
U.S. Constitution, Art. IV, § 3, cl. 2 (Property
ce ER RS tect age get NS A 2, 11
U.S. Constitution, Tenth Amendment................ 11
Vili
TABLE OF AUTHORITIES - Continued
Page
STATUTES
a ae Be | rr ere Per er fem 10, 12
RO Rese Ms 65 6a Sn ka tnd caste os acdc werent 3, 10
es Se Eda big 400 044 CEFG 6 oad ch EMES 1, 3
Be oR ET Er rer err oP ert 3, 4, 11
GE es Weds WE ONG ees eee 12
OF aie 63 Fe RATA A 3, 9, 10
eh ee RF POPE CER PTer rer Tete 10, 12
ok Oy | RE erp renr eee 3, 4, 10
ek Toe Sr re ere eer rrr 3, 4, 10
90 Stat. 2744, 2792 (1976), Pub. L. No. 94-579,
DFID cin n hacew saw duarc tas be w cepa sr ikea tee here 11
OrHER AUTHORITIES
a Da RN ere Eee ODS ears ae ae 5
62 Fed. Reg. 27,253 (May 19, 1997).........cceeeees 7,8
62 Fed. Reg. 48,445 (September 15, 1997)............. 9
62 Fed. Reg. 48,860 (September 17, 1997)............. )
OPINIONS BELOW
Review is sought of the opinion of the United States
Court of Appeals for the District of Columbia Circuit,
Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999) reh’g en
banc denied (September 3, 1999), issued July 2, 1999,
upholding the decision of the United States District Court
for the District of Columbia, which Court of Appeals
opinion appears at pages App. 1 to App. 15 of the Appen-
dix. The opinion and order of the United States District
Court for the District of Columbia, Chenoweth v. Clinton,
997 F.Supp. 36 (D.D.C. 1998), issued March 2, 1998,
appears at pages App. 16 to App. 28 of the Appendix.
- ¢
JURISDICTION
Petitioners seek review of the opinion and judgment
issued by the United States Court of Appeals for the
District of Columbia Circuit on July 2, 1999. The Supreme
Court has jurisdiction to review this opinion pursuant to
28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The following provisions of the Constitution are
involved in this Petition for Writ of Certiorari: Article I,
Section 1, regarding the “legislative Powers” of Congress;
Article II, Section 1, regarding the “executive Power” of
the President; Article III, Section 2, regarding “cases” and
“controversies;” Article I, Section 7 (Separation of Powers
Doctrine); Article I, Section 8, Clause 3 (Commerce
Clause); Article I, Section 9, Clause 7 (Spending Clause);
Article IV, Section 3, Clause 2 (Property Clause); and the
Tenth Amendment.
Article I e¢ the United States Constitution, which
provides, in pertinent part:
All legislative Powers herein granted shall
be vested in a Congress of the United States,
which shall consist of a Senate and a House of
Representatives.
* * +
Every Bill which shall have passed the
House of Representatives and the Senate, shall,
before it becomes a Law, be presented to the
President of the United States; If he approve he
shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have
originated, who shall enter the Objections at
large on their Journal, and proceed to reconsider
it. If after such Reconsideration two thirds of
that House shall agree to pass the Bill, it shall be
sent, together with the Objections, to the other
House, by which it shall likewise be recon-
sidered, and if approved by two thirds of that
House, it shall become a Law. But in all such
Cases the Votes of both Houses shall be deter-
mined by Yeas and Nays, and the Names of the
Persons voting for and against the Bill shall be
entered on the Journal of each House respec-
tively. If any Bill shall not be returned by the
President within ten Days (Sundays excepted)
after it shall have been presented to him, the
Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjourn-
ment prevents its Return, in which Case it shall
not be a Law.
Every Order, Resolution, or Vote to which
the Concurrence of the Senate and House of
Representatives may be necessary (except on a
question of Adjournment) shall be presented to
the President of the United States; and before
the Same shall take Effect, shall be approved by
him, or being disapproved by him, shall be
repassed by two thirds of the Senate and House
of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill.
+
STATUTES AND REGULATIONS INVOLVED
The following federal statutes are involved in this
Petition for Writ of Certiorari: 16 U.S.C. § 1273 of the Wild
and Scenic Rivers Act (“WSRA”); 28 U.S.C. § 1254(1); 31
U.S.C. § 1301(a) of the Anti-Deficiency Act; 42 U.S.C.
§ 4331(b) of the National Environmental Policy Act of
1969 (“NEPA”); and 43 U.S.C. §§ 1701(a) and 1714(a) of
the Federal Land Policy and Management Act of 1976
(“FLPMA”).
16 U.S.C. § 1273 provides, in pertinent part:
The national wild and scenic rivers system shall
comprise rivers (i) that are authorized for inclu-
sion therein by Act of Congress, or (ii) that are
designated as wild, scenic or recreational rivers
by or pursuant to an act of the legislature of the
State or States through which they flow .. .
31 U.S.C. § 1301(a) provides, in pertinent part:
Appropriations shall be applied only to the
objects for which the appropriations were made
except as otherwise provided by law.
43 U.S.C. § 1701(a) provides, in pertinent part:
The Congress declares that it is the policy of the
United States that the Congress exercise its con-
stitutional authority to withdraw or otherwise
designate or dedicate Federal lands for specified
purposes and that Congress delineate the extent
to which the Executive may withdraw lands
without legislative action.
43 U.S.C. § 1714(a) provides, in pertinent part:
On and after the effective date of this Act the
Secretary is authorized to make, modify, extend,
or revoke withdrawals but only in accordance
with provisions and limitations of this section.
The Secretary may delegate this withdrawal
authority only to individuals in the Office of the
Secretary who have been appointed by the Pres-
ident, by and with the advice and consent of the
Senate.
STATEMENT OF THE CASE
On December 10, 1997, Members of Congress Chen-
oweth, Schaffer, Young, and Pombo (“the Members”)
filed their complaint in the U.S. District Court for the
District of Columbia, charging that President Clinton had
no authority to issue his September 17, 1997, Executive
Order (E.O. 13061) establishing an American Heritage
a wink.
Rivers Initiative (“AHRI”). App. 30 to App. 38. On
December 10, 1997, pursuant to Executive Order 13061,
President Clinton designated so-called “Heritage Rivers”
throughout the United States.
On January 13, 1998, the Members filed a motion for
a preliminary injunction to enjoin President Clinton and
others from continuing to implement the AHRI. On Janu-
ary 26, 1998, President Clinton filed a Federal Rules of
Civil Procedure 12(b) motion to dismiss the complaint,
asserting that the Members lacked standing.
On March 2, 1998, the U.S. District Court for the
District of Columbia granted President Clinton’s motion
to dismiss, holding that the Members lacked standing
because their injury was “unrelated to passing a specific
piece of legislation” and was otherwise lacking in “con-
creteness or specificity.” Chenoweth v. Clinton, 997 F.Supp.
at 41. In issuing its ruling, the District Court assumed
that President Clinton’s actions regarding the AHRI
“unconstitutionally violated the Separation of Powers
doctrine and the other constitutional provisions and stat-
utes cited by [the Members].” Chenoweth v. Clinton, 997
F.Supp. at 37.
On March 23, 1998, the Members timely filed their
appeal to the U.S. Court of Appeals for the District of
Columbia. After briefings, oral arguments were held on
January 29, 1999.
On July 2, 1999, the District of Columbia Circuit
affirmed the District Court's decision, holding “the por-
tions of our legislative standing cases upon which [the
Members] rely are untenable in the light of [the U.S.
Supreme Court's decision in] Raines [v. Byrd, 521 U.S. 811,
117 S.Ct. 2312 (1997)}.” Chenoweth v. Clinton, 181 F.3d at
115. Concluded the District of Columbia Circuit: “[The
Members’] claim to standing on the ground that the Presi-
dent’s implementation of the AHRI without congres-
sional consent injured them by diluting their authority as
Members of Congress is indistinguishable from the claim
to standing the Supreme Court rejected in Raines.” Id. at
116.!
On August 16, 1999, the Members filed a petition for
rehearing en banc, which was denied by the U.S. Court of
Appeals for the District of Columbia Circuit per curiam on
September 3, 1999. App. 29.
This Petition for Writ of Certiorari follows.
*
STATEMENT OF FACTS
During his State of the Union address before a joint
session of Congress on February 4, 1997, President Clin-
ton announced his intention to create an AHRI whereby
he would designate selected rivers as “Heritage Rivers”
! Like the District Court, the Circuit Court, in considering
President Clinton’s motion to dismiss, had to “assume the
validity of the [Members’] claim and construe the complaint in
favor of the complaining parties.” Chenoweth v. Clinton, 997
F.Supp. at 37 (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
Thus, the Circuit Court assumed that President Clinton’s AHRI
Executive Order was unconstitutional and illegal.
in order to “help communities alongside them revitalize
their waterfronts and clean up pollution.”
President Clinton subsequently convened an inter-
agency task force to develop the AHRI> and later formed
the Interagency Committee on American Heritage Rivers
{“Committee”), which was charged with making program
recommendations for the President’s approval within 90
days. The Committee’s first organizational meeting was
held on February 12, 1997.4 In that meeting, the Commit-
tee established a working group responsible for prepar-
ing materials and making recommendations for review by
the Committee.° The Committee held various regional
2 CEQ Memorandum To Distribution from Karen Hobbs
concerning regional meetings.
% American Heritage Rivers Initiative; Proposal With
Request for Comments, 62 Fed. Reg. 27,253 (1997). Participating
agencies include: the Departments of Agriculture, Commerce,
Defense, Energy, Interior, Justice, and Housing and Urban
Development; the Environmental Protection Agency; the
Advisory Council on Historic Preservation; the Army Corps of
Engineers; and the National Endowment for the Humanities.
This task force was charged with integrating the environmental,
historic, and economic programs among several federal
agencies.
4 CEQ Interagency Committee On American Heritage
Rivers Memorandum, dated February 18, 1997, from Wesley
Warren, Ray Clark, and Diane Regas to members of the
Committee.
5 Various lists of the working group have been issued, but
the most inclusive appears in the CEQ Memorandum For
Distribution, dated May 6, 1997, from Karen Hobbs to members
of the working group.
public meetings concerning the proposed initiative. The
regional meetings focused on obtaining feedback for the
overall design of the program and criteria to be used in
designating “Heritage Rivers.””
On May 19, 1997, the Council on Environmental
Quality (“CEQ”) published a notice concerning the pro-
posed initiative in the Federal Register, which notice pro-
vided a 21-day comment period.* In response to the
requests of various individuals, including the Members,
and groups, the comment period, originally scheduled to
end June 9, 1997, was extended until August 20, 1997.9
On September 11, 1997, President Clinton signed
Executive Order 13061 creating the AHRI “to protect and
® American Heritage Rivers Initiative; Proposal With
Request for Comments, 62 Fed. Reg. 27,253 (1997).
7 CEQ Memorandum To Distribution from Karen Hobbs
concerning regional meetings [with attachments]; NPS Fax
Transmission, dated April 25, 1997, from Alan Ragins to Karen
Hobbs; American Heritage Rivers Initiative Program, Asheville
Focus Group, dated May 1, 1997; American Heritage Rivers
Initiative Workshop, Atlanta, Georgia, dated April 28, 1997;
American Heritage Rivers, summary of comments given at
stakeholders meeting in Philadelphia, Pennsylvania, dated
April 25, 1997; and American Heritage Rivers Meeting, items
highlighted by Valerie Chambers at San Francisco, California,
dated April 1997.
® American Heritage Rivers Initiative; Proposal With
Request for Comments, 62 Fed. Reg. 27,253 (1997) (proposed
May 19, 1997).
° The Chairs of the House Committees on Resources and
Agriculture and the Chairs of several Subcommittees of the
House Committee on Resources sent a letter to Kathleen
McGinty on June 4, 1997.
ene
restore rivers and their adjacent communities.” 64 Fed.
Reg. 48,445 (1997). App. 30. Executive Order 13061 for-
mally established the Committee with two co-chairs: the
Chair of the CEQ serving as permanent co-chair, the other
co-chair rotating among the heads, or their designees, of
the participating agencies.!° Executive Order 13061 also
designated the CEQ as the “Executive Agent” for the
Committee.
On September 17, 1997, CEQ Chair Kathleen McGinty
published a notice describing the AHRI in 62 Fed. Reg.
48,860 (1997). According to that notice, under the AHRI,
“the President will designate rivers that meet certain
“and “executive
agencies . . . shall coordinate Federal plans, functions, -
programs, and resources to preserve, protect, and restore
rivers and their associated resources important to our
history, culture, and natural heritage.” Id.
criteria as ‘American Heritage Rivers,’
As authority for Executive Order 13061, President
Clinton cited to Section 101(b) of the National Environ-
mental Policy Act. 42 U.S.C. § 4331(b). Section 101 of
NEPA contains a broad statement of the environmental
policies to be achieved by the action-forcing procedures
required by NEPA.!! Section 101(b) provides only that the
10 The heads of the participating agencies include the
Secretaries of Agriculture, Commerce, Defense, Energy, Interior,
Housing and Urban Development and Transportation; the
Attorney General; the Administrator of the Environmental
Protection Agency; and the Chairs of the National Endowment
of the Arts and the National Endowment for the Humanities.
11 NEPA contains “a set of ‘action-forcing’ procedures” to
ensure that the broad policy goals of Section 101 are “infused
10
action-forcing procedural requirements of NEPA are
intended to ensure that federal agencies “use all practica-
ble means to improve and coordinate Federal plans, func-
tions, programs, and resources . . . “ 42 U.S.C. § 4331(b).
The Members are all duly elected Members of Con-
gress and all serve on the Resources Committee of the
U.S. House of Representatives, which committee has
jurisdiction over the subject matters implicated by the
AHRI. Specifically, the Resources Committee has jurisdic-
tion over the Wild and Scenic Rivers Act,}? 16 U.S.C.
§ 1271 et seq., the Federal Land Policy and Management
Act of 1976,13 43 U.S.C. § 1701 et seq., and other federal
into the ongoing programs and actions of the Federal
Government.” Andrus v. Sierra Club, 442 U.S. 347, 350 (1979);
Kleppe v. Sierra Club, 427 U.S. 390, 409, and n. 18 (1976)
(emphasis added). Neither NEPA nor Section 101 contains
substantive authority for the adoption of new programs by the
Federal Government.
12 Under the WSRA, Congress may designate rivers as
“wild,” “scenic,” “recreational,” or a combination thereof. There
is no authority in the Act for the President or any other officials
to make such a designation or to designate a river as a “heritage
river.” 16 U.S.C. § 1273.
13 In 1976, Congress passed the Federal Larid Policy and
Management Act (“FLPMA”). One of the purposes of FLPMA
was to establish a specific procedure for federal land
withdrawals by the Executive Branch. Congress used FLPMA to
reassert its constitutional control over federal lands by limiting
the delegated authority of the Executive Branch to withdraw
federal lands. “The Congress declares that it is the policy of the
United States that the Congress exercise its constitutional
authority to withdraw or otherwise designate or dedicate
Federal lands for specified purposes and that Congress delineate
the extent to which the Executive may withdraw lands without
legislative action.” 43 U.S.C. § 1701(a) (emphasis added); see also,
Fe SE RRO
11
statutes by which Congress has exercised its Commerce
Clause and Property Clause authority to regulate inter-
state commerce and property belonging to the United
States.
The Members contend that the President may not
adopt a new federal program by means of an Executive
Order because Congress has not delegated the requisite
authority to do so to the President. The Members further
contend that, because Congress has not delegated that
authority to the President, his signing of Executive Order
13061 violates numerous provisions of the Constitution,
including: Article I, Section 1, Article II, Section 1, and
Article III, Section 2; as well as the Separation of Powers
Doctrine (Art. I, § 7), the Commerce Clause (Art. I, § 8, cl.
3), the Spending Clause (Art. I, § 9, cl. 7), the Property
Clause (Art. IV, § 3, cl. 2), and the Tenth Amendment. The
Members also contend that, by his signing of Executive
Order 13061, the President violated numerous federal
statutes, including: the Anti-Deficiency Act, 31 U.S.C.
§ 1301, et seq.; the Federal Land Policy And Management
43 U.S.C. § 1714(a). Congress also utilized FLPMA to eliminate
any implied Presidential withdrawal authority or any
Presidential withdrawal authority ostensibly as a result of any
alleged “acquiescence” by Congress. “Effective on and after the
date of approval of this Act, the implied authority of the
President to make withdrawals and reservations resulting from
acquiescence of the Congress (U.S. v. Midwest Oil Co., 236 U.S.
459 [1915]) and the following statutes and parts of statutes are
repealed.” FLPMA, Pub. L. No. 94-579, § 704(a), 90 Stat. 2744,
2792 (1976).
12
Act of 1976, 43 U.S.C. § 1701, et seq.; the National Envi-
ronmental Policy Act of 1969, 42 U.S.C. § 4321, et seq.; and
the Wild and Scenic Rivers Act, 16 U.S.C. § 1271, et seq.
The Members contend that, because only Congress
has authority to enact an AHRI and because the AHRI
was implemented by the President without congressional
action or approval, the Members were denied the ability
to exercise their lawmaking powers in the manner pre-
scribed in the Constitution. In addition, the Members
contend that their past votes, as to the specific manner in
which federal funds are to be expended and as to other
legislation, including, for example, the Wild and Scenic
Rivers Act, have been nullified. Furthermore, the Mem-
bers contend that their lawmaking powers were nullified
by the President’s implementation of the AHRI without
the adoption of legislation by Congress. Finally, the Mem-
bers contend that their inability to vote prior to the
President’s implementation of the AHRI deprived them
of their constitutionally prescribed lawmaking powers: to
exercise their duties to debate and vote on legislation; to
conduct oversight within the jurisdiction of their Com-
mittee and Subcommittees; and to regulate commerce,
manage and regulate federal lands, and authorize and
appropriate federal expenditures.
a
13
REASONS FOR GRANTING THE WRIT
I. THIS CASE INVOLVES A MATTER OF EXCEP-
TIONAL CONSTITUTIONAL IMPORTANCE ON
WHICH THIS COURT HAS NEVER RULED, THAT
IS, THE ABILITY OF MEMBERS OF CONGRESS
TO ENSURE THE SEPARATION OF POWERS SET
FORTH IN THE CONSTITUTION.
A. Because Concentration Of Power In The Hands
Of A Single Branch Is A Threat To Liberty, It Is
A Matter Of Exceptional Importance That Must
Be Addressed By This Court.
Ever since this Court ruled in Marbury v. Madison, 5
U.S. 137 (1803), federal courts have acted to ensure that
the Constitution remains “the supreme law of the land.”
Id. at 180. Courts have done so, not to protect the privi-
leges of the branches of government, but to “reduce the
risk of tyranny and abuse.” Printz v. U.S., 521 U.S. 898,
921 (1997) (quoting Gregory v. Ashcroft, 501 U.S. 452, 458
(1991)).
As a result, this Court has held “that a law repugnant
to the [C]onstitution is void and that courts, as well as
other departments, are bound by that instrument.” Mar-
bury v. Madison, 5 U.S. at 180. As Justice Kennedy made
clear in his concurrence in Clinton v. City of New York, 524
U.S. 417, 118 S.Ct. 2091 (1998), “[a]bdication of respon-
sibility is not part of the constitutional design.” Id. at
2110. Justice Kennedy further stated:
Separation of powers was designed to imple-
ment a fundamental insight; concentration of
power in the hands of a single branch is a threat
to liberty.
14
+ * a
[The Framers] used the principles of separation
of powers and federalism to secure liberty in the
fundamental political sense of the term. . . The
idea and the promise were that when the people
delegate some degree of control to a remote
central authority, one branch of government
ought not to possess the power to shape their
destiny without a sufficient check from the other
two.
Id. at 2109.
Because “[lJiberty is always at stake when one or
more of the branches [of government] seek to transgress
the separation of powers,” Clinton v. City of New York, 118
S.Ct. at 2109, the District of Columbia Circuit’s opinion
permitting the President to enact a law contrary to the
process set forth in the Constitution jeopardizes those
liberties. As a result, the District of Columbia Circuit's
holding is in true, direct, intolerable, and irreconcilable
conflict with the holdings of this Court in City of New York
and numerous other decisions.
The framework of the Constitution, including the
Separation of Powers Doctrine, exists to protect the liber-
ties guaranteed by the Constitution. Printz v. U.S., 521
U.S. at 921. As a result, this Court has held that the
Constitution’s structure requires a stability that tran-
scends the efficiency, expediency, convenience, and
usefulness of the moment. See Metropolitan Wash. Airports
Authority v. Citizens for Abatement of Aircraft Noise, Inc.,
501 U.S. 252, 276-277 (1991) (the Board of Review com-
posed of congressmen and having veto power over deci-
sions by local authorities impermissibly encroached upon
RPS tee Oe tn Ee Re PR ee tee Oe ee
ge ah Reet Sa ai mc cy
Pe erie ee
Eee pat 3 et) ee
15
executive powers in violation of the Separation of Powers
Doctrine); Bowsher v. Synar, 478 U.S. 714, 736 (1986) (the
powers vested in the Comptroller General under the Bal-
anced Budget and Emergency Deficit Control Act vio-
lated the Constitution’s command that Congress play no
direct role in the execution of the laws); INS v. Chadha,
462 U.S. 919, 944-45 (1983) (the section of Immigration
and Nationality Act authorizing one House of Congress,
by resolution, to invalidate an Executive Branch decision
was unconstitutional because action by that House was
essentially legislative and thus subject to the constitu-
tional requirements of passage by a majority of both
Houses and presentment to the President); Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,
73-74 (1982) (the Bankruptcy Reform Act's broad grant of
jurisdiction to bankruptcy judges regarding certain civil
proceedings violated Article III of the Constitution).
Because this case presents a matter of exceptional
constitutional importance involving, as it does, the man-
ner in which liberty is guaranteed to the citizens of this
country, and because the decision of the District of
Columbia Circuit is in intolerable conflict with the hold-
ings of this Court, this Court should grant the Petition.
B. This Exceptionally Important Matter Has Never
Been Addressed By This Court, Contrary To
The Holding Of The District Of Columbia Cir-
cuit Court.
The District of Columbia Circuit recognized that if it
were to apply the holding of the District of Columbia
Circuit in Moore v. United States House of Representatives,
16
733 F2d 936 (D.C. Cir. 1984), “this court presumably
would have found [the Members’] injury sufficient to
satisfy the standing requirements.” Chenoweth v. Clinton,
181 F.3d at 116. However, held the Circuit Court, “after
Raines, [| ] we cannot.” Id. Thus, the Circuit concluded that
in Raines this Court overturned the District of Columbia
Circuit’s holdings regarding congressional standing.
But this Court expressed no opinion as to the consti-
tutionality of that line of cases, noting only that the
District of Columbia Circuit “has repeatedly recognized
Members’ standing to challenge measures that affect their
constitutionally prescribed lawmaking powers.” Raines v.
Byrd, 117 S.Ct. at 2316 (quoting Byrd v. Raines, 956 F.Supp.
25, 30 (D.D.C. 1997)). Thereafter, this Court was silent as
to that line of cases, turning its attention to its earlier
decisions. “We have never had occasion to rule on the
question of legislative standing presented here.” Raines v.
Byrd, 117 S.Ct. at 2318. Thus, given the opportunity to
address the District of Columbia Circuit’s decisions
regarding congressional standing, this Court did not
address those decisions. Instead, this Court analyzed
“[t]he one case in which we have upheld standing for
legislators [Coleman v. Miller, 307 U.S. 433 (1939)].”
Clearly, in deciding Raines, this Court did not
address, let alone overturn, the host of decisions by the
District of Columbia Circuit regarding the standing of
Members to challenge measures that affect their constitu-
tionally prescribed lawmaking powers. In fact, it appears
that this Court specifically declined to address those
cases, let alone overturn them.
17
Because this case presents a matter of exceptional
constitutional importance and because this case presents
a matter never addressed by this Court, this Court should
grant the Petition.
C. With Regard To This Exceptionally Important
Matter, The Decision Of The District Of
Columbia Circuit Court Is In True, Direct,
Intolerable, And Irreconcilable Conflict With
The Holdings Of This Court.
1. Contrary to the holding of the District of
Columbia Circuit, the facts of this case dif-
fer markedly from Raines v. Byrd.
As the factual analysis engaged in by this Court in
Raines v. Byrd demonstrates conclusively, the injury in
this case is unlike the injury in Raines. In Raines, this
Court set forth why the Raines plaintiffs were unlike the
Coleman plaintiffs: “In the vote on the Line Item Veto Act,
[the Raines plaintiffs’] votes were given full effect. They
simply lost that vote.” 117 S.Ct. at 2320. As to the possi-
bility that the Line Item Veto Act would result in future
vote nullification, the Court rejected that contention after
finding:
a majority of Senators and Congressman [sic]
can pass or reject appropriations bills; the Act
has no effect on this process. In addition, a
majority of Senators and Congressman [sic] can
vote to repeal the Act, or to exempt a given
Pane
18
appropriations bill . . . from the Act; again, the
Act has no effect on this process.'*
Id.
The facts of this case are unlike those presented in
Raines and like those presented in Coleman. In the instant
case, the Members were not allowed to vote for or against
enactment of the AHRI prior to President Clinton’s uni-
lateral enactment of the AHRI by means of Executive
Order 13061. Furthermore, an attempt to “repeal” the
President's unconstitutional adoption of the AHRI would
not be by a vote of “a majority of Senators and Con-
gressm[e]n,” as the Raines Court noted is enough to “pass
or reject” bills, but by a two-thirds vote due to the antici-
pated presidential veto. Thus, these facts demonstrate
that this case is factually analogous to Coleman and totally
dissimilar from Raines
2. An application of Raines v. Byrd to this case
would have resulted in standing for the
Members.
The District of Columbia Circuit concluded that the
instant case involves the “internal affairs of the legislative
‘4 Mistakenly, the District of Columbia Circuit views the
injury asserted by the members in Raines as like the one asserted
by the Members here. Yet, as the Raines quote in text makes
clear, and as the District of Columbia Circuit admits, the Raines
members asserted that their injury was the impact of the Line
Item Veto Act on the effectiveness of future votes. Dissimilarly,
the injury to the Members here involves, not the effectiveness of
some future vote, but the loss of the effectiveness of their votes
to enact the AHRI and the loss of the effectiveness of their past
votes regarding the WSRA
ee 2
— SS A aT ie aia,
19
branch,” Chenoweth v. Clinton, 181 F.3d at 116 (quoting
Moore v. United States House of Representatives, 733 F.2d at
956), and thus, whether by use of the Circuit's erroneous
application of the standing analysis of Raines or by appli-
cation of the equitable discretion analysis of Moore, the
Members may not be heard.'5 Chenoweth v. Clinton, 181
F.3d at 115-117. As to the latter basis, the District of
Columbia Circuit is in error because, unlike Moore, this
case does not involve the “internal affairs of the legisla-
tive branch.”
Moore involved adoption of legislation that, under
the Origination Clause of the Constitution, should have
originated in the House of Representatives but did not.
Thus Moore involved the “internal affairs” of Congress
because Moore’s colleagues willingly enacted revenue-
raising legislation that did not originate in the House.
Moore v. United States House of Representatives, 733 F.2d at
948-49, 956.
However, this case involves, not the “internal affairs”
of Congress, but the constitutional relationship between
the Executive and Legislative Branches, that is, the very
nature of the Separation of Powers Doctrine. For here,
despite the requirement of the Constitution that only
'S The Circuit's assertion that the Members ask that half of
Moore be ignored iis erroneous. The “equitable discretion”
portion of Moore is inapplicable to the instant case because this
case does not involve “the internal affairs of the legislative
branch,” but instead, like Kennedy v. Sampson, 511 F.2d 430 (D.C.
Cir. 1974), involves a political dispute between the Executive
and Legislative Bramches over the “process by which a bill
becomes law.” Moore v. United States House of Representatives, 733
F.2d at 951
20
Congress may enact laws, President Clinton enacted the
AHRI unilaterally by Executive Order 13061. By virtue of
this fact alone, this case is not about the “internal affairs”
of Congress.
The District of Columbia Circuit attempts to remedy
this factual dissimilarity with Moore by noting that “Con-
gress could terminate the AHRI were a sufficient number
in each House so inclined.” Chenoweth v. Clinton, 181 F.3d
at 116. Thus, in the Circuit’s view, “[b]ecause the parties’
dispute is therefore fully susceptible to political resolu-
tion,” this case involves the “internal affairs” of Con-
gress. Id. The Circuit’s analysis of the Separation of
Powers Doctrine fails for two reasons.
First, the Constitution sets forth the process by which
a bill becomes law, a process that does not involve presi-
dential adoption of legislation subject to rejection or
repeal by Congress. Thus, the Circuit labels the “political
resolution” it offers the Members as part of the “internal
affairs” of Congress only by ignoring the process set forth
in the Constitution and the Circuit’s duty to protect that
constitutional process.'®
Second, in the face of the expected veto by President
Clinton of a “repeal” by Congress of his enactment of the
16 From a practical standpoint, because President Clinton
ostensibly draws his authority, not from any specific grant of
authority, but from the broad, generic, precatory language of
NEPA, the “political solution” recommended by the Circuit
would involve “repeal” of something that does not exist. As a
result, the repeal proposed by the Circuit might read something
like: “To the extent that Section 101(b) contains any authority for
the adoption of an AHRI, that authority is hereby repealed.”
21
AHRL, the “political resolution” envisioned by the Circuit
would require adoption of that repeal by a two-thirds,
that is, a veto override, margin, as opposed to a simple
majority. Thus, the Circuit’s “political resolution” not
only does grave damage to the Members’ “constitu-
tionally prescribed lawmaking powers,” Raines v. Byrd,
117 S.Ct. at 2316, but also is inconsistent with the Cir-
cuit’s view as to what constitutes “internal affairs of the
legislative branch.” Moreover, the Circuit's analysis con-
flicts with the holding of this Court in Raines, wherein
this Court held that the Raines plaintiffs had suffered no
injury because “a majority of Senators and Congressm[e]n
can [still] pass or reject |] bills... ” Raines v. Byrd, 117
S.Ct. at 2320 (emphasis added). Clearly, “a majority” is
not enough in this case.
The weakness of the Circuit’s “internal affairs” anal-
ysis is demonstrated further by its view that the Circuit's
holding in Kennedy is consistent with Raines. In the Cir-
cuit’s view, Kennedy is consistent with Coleman because a
pocket veto of legislation adopted by Congress nullified
the votes of those favoring the bill. However, this is a
distinction without a difference. Whether a president
unconstitutionally enacts a law without a vote by Con-
gress, as in the instant case, or unconstitutionally vetoes
legislation adopted by Congress, as in Kennedy, that presi-
dent has nullified the votes of Congress contrary to the
Constitution. !7
'7 The “political resolution” that the Circuit concluded is
available here was also available in Kennedy. Congress would
need only to pass the legislation that was the subject of the
pocket veto in sufficient time to prevent another pocket veto
and by sufficient votes to override a veto.
22
Because this case presents a matter of exceptional
importance and because the holding of the Circuit is in
true, direct, intolerable, and irreconcilable conflict with
the holdings of this Court in Coleman and Raines, this
Court should grant the Petition.
ll. A TRUE, DIRECT, INTOLERABLE, AND IRREC-
ONCILABLE CONFLICT EXISTS BETWEEN THE
DECISION OF THE DISTRICT OF COLUMBIA
CIRCUIT AND DECISIONS OF THIS COURT
REGARDING THE ABILITY OF ELECTED REPRE-
SENTATIVES, WHOSE VOTES HAVE BEEN NUL-
LIFIED, TO HAVE STANDING TO CHALLENGE
SUCH VOTE NULLIFICATION.
A. The District Of Columbia Circuit Misstated
And Misunderstood The Factual Analysis By
This Court.
The District of Columbia Circuit overlooked the fac-
tual analysis engaged in by this Court in Coleman. As a
result, the Circuit overlooked the fact that the injury in
this case is much like the injury in Coleman. In Raines, this
Court emphasized that the votes of the legislative plain-
tiffs in Coleman had been “overridden and virtually held for
naught.” 117 S.Ct. at 2319 (emphasis in original). Sim-
ilarly, in this case, because the President enacted the
AHRI contrary to the manner provided for in the Consti-
tution, thus affecting the Members’ “constitutionally pre-
scribed lawmaking powers,” the votes that the Members
would have cast were “overridden and virtually held for
naught.” The fact that Congress was not permitted to
vote on the AHRI before President Clinton signed it into
law by means of an Executive Order does not alter the
ee a
23
analysis required by Coleman. In fact, the District Court
held that this case involves a “greater nullification of [the
Members’] voting power than that suffered by the plain-
tiffs in Coleman, since the [Members] never even had the
opportunity to debate and vote on the AHRI.”!8 Che-
noweth v. Clinton, 997 F.Supp. at 39.
Granted, the Coleman Court noted that the votes of
the legislative plaintiffs “would have been sufficient [to
prevail],” 307 U.S. at 438, and the Raines Court placed
emphasis on that aspect of the Coleman decision. How-
ever, the significance of that fact in the instance case is
uncertain given the conspicuous refusal of the Raines
Court to address the District of Columbia Circuit's
repeated recognition of Members’ standing to challenge
measures that affect their constitutionally prescribed law-
making powers.
Because the Circuit held that this Court had over-
turned the twenty-five years of case law associated with
the Circuit’s holdings in Kennedy through Moore and
because the Circuit’s holding is in conflict with the hold-
ings of this Court in Coleman and Raines, this Court
should grant the Petition.
'® The absence of a vote in this case does not change the
Coleman-type analysis. Why would the Members here have
standing, under Coleman, if President Clinton signed the AHRI
Executive Order after Congress rejected legislation creating the
AHRI, but not if he signed the unconstitutional AHRI Executive
Order before a vote by Congress? In both cases, the Members’
votes would have been nullified.
24
B. The Political Resolution Analysis Applied By
The District Of Columbia Circuit Is In Conflict
With The Analysis Applied By This Court.
The Circuit concluded that the Members here are
unlike the Coleman plaintiffs because the elected officials
in Coleman were deprived of their “plain, direct and
adequate interest in maintaining the effectiveness of their
votes.” Coleman, 307 U.S. at 438. But by its holding that
the Members “cannot claim their votes were effectively
nullified by the machinations of the Executive,” Chen-
oweth v. Clinton, 181 F.3d at 117, the Circuit ignored the
fact that the Members would be required to marshal
sufficient votes to override a veto by President Clinton.!?
Thus, strictly from the standpoint of the difference
between a mere majority and a two-thirds majority, the
effectiveness of the four votes represented by the Mem-
bers here has been nullified.2° Of course, the greatest
19 The Circuit demands that the Members here “allege that
the necessary majorities in the Congress voted to block the
AHRI.” Chenoweth v. Clinton, 181 F.3d at 117. Yet, because
President Clinton enacted a law that Congress must now
“repeal” by a veto override margin, the Members need, not a
simple majority, but a two-thirds majority. Not only does such a
required margin for enacting laws violate the process set forth
in the Constitution, but it also reduces the “effectiveness” of the
votes of the Members.
20 Had the AHRI been proposed as legislation in accordance
with the “process by which a bill becomes law,” Moore v. United
States House of Representatives, 733 F.2d at 951, the Members
would have needed a mere majority (i.e., 218 votes) to defeat that
legislation. Because President Clinton enacted the AHRI by
Executive Order and would likely veto any attempt to “repeal”
the AHRI, the Members will need a two-thirds majority (i.e., 290
votes). Thus, the “effectiveness” of the Members’ votes has been
reduced by the difference between 4/218 and 4/290.
Aenean a ante MR eta A etait ae eaten oe a ih islet Suntan Seat, fe
25
injury to the effectiveness of the Members’ votes was the
enactment of federal law contrary to the manner set forth
in the Constitution.
Because the holding of the Circuit is in conflict with
the holding of this Court in Coleman and Raines, this
Court should grant the Petition.
Ill. A TRUE, DIRECT, INTOLERABLE, AND IRREC-
ONCILABLE CONFLICT EXISTS BETWEEN THE
DECISION OF THE DISTRICT OF COLUMBIA
CIRCUIT AND DECISIONS OF OTHER CIRCUIT
COURTS OF APPEALS REGARDING THE ABIL-
ITY OF COURTS TO OVERTURN BINDING
CASE LAW BY IMPLICATION.
As set forth above, the District of Columbia Circuit
overturned binding case law of that Circuit in response to
the holding of this Court in Raines, notwithstanding the
fact that this Court did not overturn that case law. Not
only did this Court not overturn the District of Columbia
Circuit’s binding case law, this Court pointedly chose not
to address that case law. Thus, the District of Columbia
Circuit’s decision was founded on its view that this
Court, in ruling in Raines, overturned the Circuit’s bind-
ing case law by implication. As a result, the District of
Columbia Circuit’s decision places that Circuit in true,
direct, intolerable, and irreconcilable conflict with the
holdings of other Circuit Courts of Appeals.
In a decision directly applicable here, the Fifth Cir-
cuit ruled that, although “[a] panel of [the Fifth Circuit]
may overrule the existing law in the circuit if an interven-
ing Supreme Court decision so requires,” the implications
mem emmmmmmmmmmmmmmmccmccc
~~
26
of the Supreme Court holding must be “so direct as to
allow this panel to depart from the [Circuit] Court's
previous decisions.” Guevera v. Maritime Overseas Corp., 34
F.3d 1279, 1284 (5th Cir. 1994) (per curiam). Here, the
District of Columbia Circuit Court should have held that
Raines was too indirect to permit the Circuit to depart
from the Circuit’s previous decisions, especially given
that this Court had the opportunity to express an opinion
as to the constitutionality of the Circuit's repeated recog-
nition of congressional standing, but declined to do so.
Likewise, the Fourth Circuit held that “[a] subse-
quent decision cannot, by mere implication, be held to
overrule a prior case unless the principle is directly
involved and the inference clear and compelling.” Kestler v.
Board of Trustees of N. Carolina Local Gov't Employees’
Retirement System, 48 F.3d 800, 804 (4th Cir. 1995)
(emphasis added). Because Raines does not explicitly
overrule, let alone criticize, the District of Columbia Cir-
cuit’s line of cases, the Fourth Circuit's holding has even
more force in the instant case.
The Eleventh Circuit held that it is “bound to follow
a prior panel or en banc holding, except where that hold-
ing has been overruled or undermined to the point of abroga-
tion by a subsequent en banc or Supreme Court decision.”
Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).
Further, “[e]lven if [a specific case] portends a major
change in the Supreme Court's approach to [an issue], we
are not at liberty to disregard binding case law that is so
closely on point and has been only weakened, rather than
directly overruled by the Supreme Court.” Engineering
Contractors Ass'n of S. Fla Inc. v. Metropolitan Dade County,
122 F.3d 895, 908 (11th Cir. 1997). As to the instant case,
27
Raines neither overruled nor undermined, to the point of
abrogation, the District of Columbia Circuit’s line of cases
regarding congressional standing. Thus, the District of
Columbia Circuit Court was not at liberty to disregard
the binding case law of that Circuit.
Finally, Circuit Judge Davis in Hague v. Committee for
Indus. Org., 101 F.2d 774, 801 (3rd Cir. 1939) (dissenting),
set forth the Third Circuit’s rule that overruling a deci-
sion by implication is an unpopular doctrine and usually
not allowed.
Because the District of Columbia Circuit’s holding
that this Court overturned the Circuit’s binding case law
by implication is in conflict with other Circuit Courts of
Appeals and because that holding does grievous damage
to the doctrine of stare decisis in the wake of Supreme
Court opinions, this Court should grant the petition to
resolve this conflict.
CONCLUSION
For all the above reasons, this Court must grant the
Petition.
Respectfully submitted,
WILLIAM Perry PENDLEY*
*Counsel of Record
RoGeER JACQuES KOTHARY
Mountain States Legal Foundation
707 Seventeenth Street, Suite 3030
Denver, Colorado 80202
(303) 292-2021
Attorneys for Petitioner
Dated: December 2, 1999
APPENDIX INDEX
District of Columbia Circuit decision, July 2, 1999;
RG ee Re I 6B he ha Reba ieee a, App. 1
District Court decision, March 2, 1998; 997 F.Supp.
SE re ee te ee App. 16
Order denying Petition for Rehearing En Banc,
Sled September:3, 1999... icc chau csccncees App. 29
Executive Order 13061, 62 Fed. Reg. 48,445
CREE ya wae tech kak ee i eas SS App. 30
App. 1
The Honorable Helen CHENOWETH, the
Honorable Bob Schaffer, the Honorable Don
Young, and the Honorable Richard W. Pombo,
all in their official capacities, Appellants,
Vv.
William J. CLINTON, President of the
United States, Kathleen A. McGinty, Chair
of the Council on Environmental Quality,
individually and in their official capacities,
and the United State of America, Appellees.
No. 98-5095.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 29, 1999.
Decided July 2, 1999.
Appeal from the United States District Court for the
District of Columbia (No. 97¢cv02954).
William Perry Pendley argued the cause and filed the
briefs for appellants. Todd S. Welch entered an appear-
ance.
Ethan G. Shenkman, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the
brief were Lois J. Schiffer, Assistant Attorney General,
and Martin W. Matzen, Attorney. Jared A. Goldstein,
Attorney, entered an appearance.
Before: EDWARDS, Chief Judge, GINSBURG and
TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINS-
BURG.
App. 2
Opinion concurring in the judgment filed by Circuit
Judge TATEL.
GINSBURG, Circuit Judge:
Appellants Helen Chenoweth, Bob Schaffer, Don
Young, and Richard W. Pombo, all of whom are Members
of the United States House of Representatives, sued to
enjoin implementation of President Clinton’s American
Heritage Rivers Initiative (AHRI). They claimed the Presi-
dent’s creation of the program by executive order
exceeded his statutory and constitutional authority. Char-
acterizing the Representatives’ claim as a “generalized
grievance| | about the conduct of government,” the dis-
trict court held the plaintiffs lacked standing to sue and
dismissed their complaint. The Representatives now
appeal, arguing that the district court failed properly to
apply our decisions in Kennedy v. Sampson, 511 F.2d 430
(1974), and Moore v. U.S. House of Representatives, 733 F.2d
946 (1984). In part based upon the intervening decision in
Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d
849 (1997), we affirm the judgment of the district court.
I. Background
The President announced his intention to create the
AHRI in his 1997 State of the Union address. Soon after-
ward, the Council on Environmental Quality published a
notice describing the program. Under the AHRI, it
explained, federal agencies would be called upon to pro-
vide support for local efforts to preserve certain histori-
cally significant rivers and riverside communities. See 62
Fed.Reg. 27,253 (May 19, 1997). In June, 1997 Representa-
tives Chenoweth, Schaffer, and Pombo introduced a bill
App. 3
“[tlo terminate further development and implementa-
tion” of the AHRI. H.R. 1842, 105th Congress. The bill
never came to a vote. The President formally established
the AHRI by executive order in September, 1997. See
Exec. Order 13,061, 62 Fed.Reg. 48,445.
Their legislative efforts having failed, the appellants
brought this lawsuit, claiming the AHRI violates the
Anti-Deficiency Act, 31 U.S.C. § 1301 et seq., the Federal
Land Management and Policy Act, 43 U.S.C. § 1701 et
seq., the National Environmental Policy Act, 42 U.S.C.
§ 4321 et seq., and the Commerce, Property, and Spending
Clauses of, and the Tenth Amendment to, the Constitu-
tion of the United States. According to the complaint, the
President's issuance of the AHRI by executive order,
without statutory authority therefor, “deprived [the
plaintiffs] of their constitutionally guaranteed respon-
sibility of open debate and vote on issues and legislation”
involving interstate commerce, federal lands, the expen-
diture of federal monies, and implementation of the
NEPA. The Representatives sought a declaration that the
issuance of the AHRI was unlawful and an injunction
against its implementation.
The district court granted the President’s motion to
dismiss, concluding that the injury the Representatives
claim to have suffered - the deprivation of their right as
Members of the Congress to vote on (or, more precisely,
against) the AHRI - is “too abstract and not sufficiently
specific to support a finding of standing.” The Represen-
tatives then took this appeal.
| App. 4
Il. Analysis
The Representatives’ claim of standing is predicated
upon the theory that by issuing Executive Order 13,061,
the President denied them their proper role in the legisla-
tive process and, consequently, diminished their power as
Members of the Congress. They rely primarily upon
Moore, in which we held that the infringement of a legis-
lator’s “right[ ] to participate and vote on legislation in a
manner defined by the Constitution” is an injury suffi-
ciently direct and concrete to support the legislator’s
standing to sue. 733 F.2d at 951. To understand why their
facially plausible argument is unpersuasive, some back-
ground is necessary.
The general principle that governs our standing anal-
ysis is firmly established: A federal court cannot, consis-
tent with Article III, exercise jurisdiction over a lawsuit
unless the plaintiff has suffered a “personal injury fairly
traceable to the defendant's allegedly unlawful conduct
and likely to be redressed by the requested relief.” Allen
v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556
(1984). Application of the general rule to a Member of the
Congress who objects to the actions of other participants
in the legislative process, however, is a subject upon
which this court has not spoken with great clarity.
Historically, political disputes between Members of
the Legislative and the Executive Branches were resolved
without resort to the courts. See Raines, 521 U.S. at 826-28,
117 S.Ct. 2312 (describing conflicts between Congress and
various Presidents decided in the political arena). When
Members of the Congress first began to seek judicial relief
from allegedly illegal executive actions that impaired the
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exercise of their power as legislators, however, we were
initially receptive to the idea that we had jurisdiction to
hear their complaints. In Kennedy, for instance, we found
that a United States Senator had standing to challenge the
President's pocket veto of legislation that both Houses of
the Congress had approved. The allegedly unlawful veto,
we reasoned, injured the Senator in a direct and personal
way because it effected a “diminution of congressional
influence in the legislative process.” 511 F.2d at 435. On
the same theory, we held that a group of Senators had
standing to sue the President for depriving them of a
constitutionally-mandated opportunity to vote on the
abrogation of a treaty. See Goldwater v. Carter, 617 F.2d
697, 702 (en banc), vacated on other grounds, 444 U.S. 996,
100 S.Ct. 533, 62 L.Ed.2d 428 (1979).
After we decided Kennedy, however, the Supreme
Court began to place greater emphasis upon the separa-
tion of powers concerns underlying the Article III stand-
ing requirement. Compare Flast v. Cohen, 392 U.S. 83, 100,
88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (“The question
whether a particular person is a proper party to maintain
[an] action does not, by its own force, raise separation of
powers problems”), with Warth v. Seldin, 422 U.S. 490,
498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (standing
requirement “founded in concern about the proper - and
properly limited - role of the courts in a democratic
society”), and Allen v. Wright, 468 U.S. at 752, 104 S.Ct.
3315 (“[T]he law of Art. III standing is built on a single
basic idea — the idea of separation of powers”). In deci-
sions following Kennedy we noted that those concerns are
present — indeed, are particularly acute - when a legisla-
tor attempts to bring an essentially political dispute into a
App. 6
judicial forum. Accordingly, in Riegle v. Federal Open Mar-
ket Committee, 656 F.2d 873 (1981), we dismissed the com-
plaint of a Senator who challenged the constitutionality
of procedures by which certain members of the FOMC
were appointed; this result, we held, was necessary in
order to avoid an “obvious intrusion by the judiciary into
the legislative arena.” Id. at 881. We did not, however,
disavow the standing analysis of Kennedy and Goldwater.
Instead, creating a doctrine of “circumscribed equitable
discretion,” we held that the court would decline to hear
the complaint of a Congressman who “could obtain sub-
stantial relief from his fellow legislators” regardless
whether he had standing to sue. Id. Keeping distinct our
analysis of standing and our consideration of the separa-
tion of powers issues raised when a legislator brings a
lawsuit concerning a legislative or executive act, we con-
cluded, made consonant two otherwise irreconcilable
principles: first, that congressional and private plaintiffs
should be treated alike for the purpose of determining
their standing, and second, that courts should refrain
from interfering in disputes arising out of the legislative
process when a political remedy is available from within
that process. See id. at 877-82.
But the circle did not long stay squared. Observing
that jurisdictional issues such as standing are not of a sort
usually committed to the discretion of courts, see Moore,
733 F.2d at 962 (Scalia, J., concurring), we questioned
Riegle as frequently as we applied it. See, ¢.g., Humphrey v.
Baker, 848 F.2d 211, 214 (1988) (concerns about the doc-
trine of equitable discretion “continue to trouble us”);
Melcher v. Federal Open Market Comm., 836 F.2d 561, 565 n.
4 (1987) (expressing doubt as to continuing viability of
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App. 7
doctrine). The practical significance of Riegle was also
open to question: With one exception, namely, Bliley v.
Kelly, 23 F.3d 507, 510 (1994), every decision in which we
applied the doctrine of equitable discretion was either
reversed upon another jurisdictional ground by the
Supreme Court, see Barnes v. Kline, 759 F.2d 21
(C.A.D.C.1985), vacated sub nom. Burke v. Barnes, 479 U.S.
361, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987), or reached the
same result that would have obtained had we treated
separation of powers concerns as part of our inquiry into
the plaintiff's standing. See, e.g., Moore, 733 F.2d at 956;
Vander Jagt v. O'Neill, 699 F.2d 1166, 1175 (1982). In Moore,
for instance, we held that although congressmen had
standing to object to the purportedly unconstitutional
origination of a revenue-raising bill in the Senate, the
district court properly dismissed their complaint under
Riegle because their “rights [could] be vindicated by con-
gressional repeal of the [offending] statute.” 733 F.2d at
956. Our conclusion that the plaintiffs had standing to
sue, in other words, got them into court just long enough
to have their case dismissed because of the separation of
powers problems it created. Recognizing the limited
impact of the Riegle doctrine, we noted in United Presby-
terian Church v. Reagan, 738 F.2d 1375 (D.C.Cir.1984), that
“i]t seems .. . inconvenient .. . to distinguish between
those legislator claims that lack standing, and those that
should be denied a favorable exercise of remedial discre-
tion for reasons generally indistinguishable from those
that underlie the doctrine of standing.” Id. at 1382.
So matters stood when the Supreme Court recently
decided Raines v. Byrd. The plaintiffs in that case were
congressmen who objected to the Line Item Veto Act,
App. 8
which gave the President the authority to “cancel” spend-
ing provisions in an appropriations bill without vetoing
the bill in its entirety. According to the plaintiffs, the Act
injured them by “alter[ing] the legal and practical effect
of all votes they . . . cast on bills containing . . - separately
vetoable items,” thus “divest[ing them] of their constitu-
tional role” in the legislative process. 521 U.S. at 816, 117
S.Ct. 2312. The district court found that the plaintiffs had
standing, citing Moore for the proposition that an act
interfering with the “constitutionally mandated process
of enacting law” imposes upon legislators an injury cog-
nizable under Article III. Byrd v. Raines, 956 F.Supp. 25, 31
(D.D.C.1997).
On direct appeal, the Supreme Court reversed. The
Court characterized the plaintiffs’ injury as “wholly
abstract and widely dispersed” and hence insufficient to
warrant judicial remediation. 521 U.S. at 829, 117 S.Ct.
2312. The Court was apparently unmoved by the concern
we expressed in Moore that the consideration of separa-
tion of powers issues would “distort[ ]” our standing
analysis, 733 F.2d at 954; to the contrary, it emphasized
that standing requirements are “especially rigorous”
when reaching the merits of a case would raise questions
about the proper scope of judicial authority. 521 U.S. at
819-20, 117 S.Ct. 2312. Having found that the plaintiffs
lacked standing to sue, the Court did not find it necessary
to consider the applicability (or the validity) of the doc-
trine of equitable discretion.
Against the backdrop of Raines and our own deci-
sions after Goldwater, the futility of the present Represen-
tatives’ claim is apparent. As the plaintiffs point out, the
injury they allegedly suffered when the President issued
App. 9
Executive Order 13,061 — a dilution of their authority as
legislators — is precisely the harm we held in Moore and
Kennedy to be cognizable under Article III. It is also,
however, identical to the injury the Court in Raines depre-
cated as “widely dispersed” and “abstract.” If, as the
Court held in Raines, a statute that allegedly “divests
[congressmen] of their constitutional role” in the legisla-
tive process does not give them standing to sue, 521 U.S.
at 816, 117 S.Ct. 2312, then neither does an Executive
Order that allegedly deprives congressmen of their
“right[ ] to participate and vote on legislation in a manner
defined by the Constitution.” 733 F.2d at 951. Conse-
quently, the portions of our legislative standing cases
upon which the current plaintiffs rely are untenable in
the light of Raines.
The Representatives protest that the injury alleged in
Raines was less severe than that suffered by the plaintiffs
in Moore. The votes of those Members of the Congress
who opposed the Line Item Veto Act, they observe, were
given full effect; they were simply too few to carry the
day. The plaintiffs in Moore, on the other hand, claimed to
have been entirely deprived of their constitutional right
to originate a bill intended to raise revenue. Here, sim-
ilarly (per the plaintiffs), the President denied Members
of the Congress any opportunity to vote for or against the
AHRI. Not only does Moore therefore survive Raines, urge
the Representatives, but the present case more closely
resembles the former than the latter.
This reasoning misperceives the theory of standing at
issue in Raines. The plaintiffs in that case did not contend,
as the Representatives imply, that their injury was the
result of a procedural defect in the passage of the Line
App. 10
Item Veto Act. Rather, their view was that once the Act
became law, it “alter[ed] the constitutional balance of
powers between the Legislative and Executive Branches,”
to their detriment. 521 U.S. at 816, 117 S.Ct. 2312. This is
only a minor variation on the injury asserted in Moore,
where the beneficiary of the alleged change in the consti-
tutional order was the Senate rather than the President.
More to the point, it is exactly the position taken by the
Representatives here: Their injury, they say, is the result
of the President’s successful effort “to usurp Congres-
sional authority by implementing a program, for which
[he] has no constitutional authority, in a manner contrary
to the Constitution.” Applying Moore, this court presuma-
bly would have found that injury sufficient to satisfy the
standing requirement; after Raines, however, we cannot.
Raines notwithstanding, Moore and Kennedy may
remain good law, in part, but not in any way that is
helpful to the plaintiff Representatives. Whatever Moore
gives the Representatives under the rubric of standing, it
takes away as a matter of equitable discretion. It is
uncontested that the Congress could terminate the AHRI
were a sufficient number in each House so inclined.
Because the parties’ dispute is therefore fully susceptible
to political resolution, we would, applying Moore, dismiss
the complaint to avoid “meddl[ing] in the internal affairs
of the legislative branch.” 733 F.2d at 956. Applying
Raines, we would reach the same conclusion. Raines,
therefore, may not overrule Moore so much as require us
to merge our separation of powers and standing analyses.
In citing Moore, of course, the Representatives are not
asking us to do that; instead, they would have us simply
ignore half of that opinion.
App. 11
As for Kennedy, it may survive as a peculiar applica-
tion of the narrow rule announced in Coleman v. Miller,
307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). The
plaintiffs in Coleman were certain Kansas legislators who
alleged that the Lieutenant Governor of Kansas had acted
unlawfully by casting the tie-breaking vote in the state
senate in favor of a constitutional amendment. According
to the Court, the 20 legislators who had voted against the
amendment had standing to sue because the Lieutenant
Governor's act deprived them of their “plain, direct and
adequate interest in maintaining the effectiveness of their
votes.” Id. at 438, 59 S.Ct. 972.
Although Coleman could be interpreted more broadly,
the Raines Court read the case to stand only for the
proposition that “legislators whose votes would have
been sufficient to defeat (or enact) a specific legislative
Act have standing to sue if that legislative action goes
into effect (or does not go into effect) on the ground that
their votes have been completely nullified.” 521 U.S. at
823, 117 S.Ct. 2312. Even under this narrow interpreta-
tion, one could argue that the plaintiff in Kennedy had
standing. The pocket ‘veto challenged in that case had
made ineffective a bill that both houses of the Congress
had approved. Because it was the President’s veto — not a
lack of legislative support — that prevented the bill from
becoming law (either directly or by the Congress voting
to override the President’s veto), those in the majority
could plausibly describe the President’s action as a com-
plete nullification of their votes.
In this case, however, the Representatives do not
allege that the necessary majorities in the Congress voted
to block the AHRI. Unlike the plaintiffs in Kennedy and
App. 12
Coleman, therefore, they cannot claim their votes were
effectively nullified by the machinations of the Executive.
Consequently, even if Kennedy is still viable after Raines, it
cannot bear the weight the Representatives would place
upon it."
Ill. Conclusion
The district court correctly held the plaintiff Repre-
sentatives lack standing to pursue this lawsuit. Their
claim to standing on the ground that the President's
implementation of the AHRI without congressional con-
sent injured them by diluting their authority as Members
of the Congress is indistinguishable from the claim to
* For two reasons our concurring colleague would have us
decide this case as though the Supreme Court had never
decided Raines. First he says the effect of Raines upon our prior
decisions was not briefed by the parties. However, the parties
plainly joined the issue whether Raines overrules our cases on
the subject of legislative standing. See Appellees’ Br. at 16
(“After the Supreme Court's decision in Raines .. . it is
questionable whether a member of Congress alleging an
institutional injury can ever have Article III standing”);
Appellant’s Rep. Br. at 7 (asserting “[t}here is absolutely no
authority” supporting the President’s assertion “that Raines
overturned Moore”).
Second, he says the Representatives would lack standing
even under the pre-Raines law of this circuit. This point rests
upon the implicit premise that the standing analysis in Moore
and Kennedy might have force after Raines, albeit (as he
acknowledges) in circumstances not presented here. We think it
clear, however, that our analysis in this case must account for
the impact of Raines on the prior precedent of this circuit, and
further, that Raines leaves no room for the broad theory of
legislative standing that we adopted in Moore and Kennedy.
App. 13
standing the Supreme Court rejected in Raines. Nor can
the Representatives claim that their vote was nullified by
the President’s action. The decision of the district court is
therefore
Affirmed.
TATEL, Circuit Judge, concurring in the judgment:
[ agree that appellants lack standing. I think the court
should have reached that result, however, without explor-
ing the extent to which Raines v. Byrd, 521 U.S. 811, 117
S.Ct. 2312, 138 L.Ed.2d 849 (1997), limits our decisions in
Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974), and
Moore v. United States House of Representatives, 733 F.2d 946
(D.C.Cir.1984). See Maj. Op. at 115-17.
In the course of deciding that Raines essentially over-
rules the theory of legislative standing recognized in
Kennedy and Moore, my colleagues read those decisions
too broadly, stating that the legislator injury we found
cognizable in those cases “is precisely the harm” that
appellants allege here. Maj. Op. at 116. But unlike appel-
lants, the legislators in Kennedy and Moore challenged
alleged constitutional defects in the way specific pieces of
legislation were passed or defeated. See Moore, 733 F.2d at
951-53 (revenue-raising bill allegedly originated in the
Senate, not the House); Kennedy, 511 F.2d at 434-36
(allegedly unconstitutional presidential pocket veto of
legislation passed by Congress). Contrary to appellants’
claim that they have been “denied the ‘right[ ] to partici-
pate and vote on legislation in a manner defined by the
Constitution,’ ” Appellant's Br. at 16 (quoting Moore, 733
F.2d at 951), they can point to no defect in any “discrete
aspect of the process by which a bill becomes law (the
App. 14
actual vote on the legislation) [or] those post-enactment
events denying the bill’s status as law,” Harrington v.
Bush, 553 F.2d 190, 211 (D.C.Cir.1977). This case is there-
fore indistinguishable from and controlled by United Pres-
byterian Church in the U.S.A. v. Reagan, 738 F.2d 1375
(D.C.Cir.1984). There, as here, a Member of Congress
challenged the legality of an executive order, claiming
that it was promulgated without congressional or consti-
tutional authorization. See id. at 1381-82. We held that the
Member lacked standing because he raised only “ ‘a gen-
eralized grievance about the conduct of government, not
a claim founded on injury to the legislator by distortion
of the process by which a bill becomes law.’ ” Id. at 1382
(quoting Moore, 733 F.2d at 952); see also Daughtrey v.
Carter, 584 F.2d 1050, 1057 (D.C.Cir.1978) (rejecting the
argument that legislators have standing to challenge
executive nonenforcement of an act as a usurpation of the
legislative right to enact repealing legislation); Har-
rington, 553 F.2d at 211 (rejecting the argument that a
legislator has standing to challenge allegedly illegal CIA
activities as an impairment of his prospective votes on
related legislation). For precisely the same reason, appel-
lants lack standing to challenge the American Heritage
Rivers Initiative.
Although Raines limits Kennedy and Moore to some
extent, it changes nothing in United Presbyterian or the
other cases where we have rejected legislator standing to
raise similar “generalized grievances.” Because United
Presbyterian still squarely controls, it is unnecessary to
reach the difficult issue of the precise extent to which
Raines limits Kennedy and Moore, an issue not briefed in
this case beyond the conclusory assertions cited by the
App. 15
court. See Texas Rural Legal Aid, Inc. v. Legal Servs. Corp.,
940 F.2d 685, 697-98 (D.C.Cir.1991) (in the “absence of any
substantive briefing on the issue,” where the parties
“content [themselves] with conclusory assertions,” this
court normally will not address the argument). I think the
court should have deferred addressing the implications of
Raines until presented with a case in which legislators
assert injury involving a discrete aspect of the process by
which a specific bill has become (or failed to become) law.
App. 16
The Honorable Helen CHENOWETH, et al.,
Plaintiffs,
v.
William J. CLINTON, et al., Defendants.
No. 97-2954(HHK).
United States District Court,
District of Columbia.
March 2, 1998.
William Perry Pendley, Mountain States Legal Foun-
dation, Denver, CO, for Plaintiffs.
Geoffrey Garver, U.S. Dept. of Justice, Environ. &
Natural Resources Div., Washington, DC, for Defendants.
MEMORANDUM
KENNEDY, District Judge.
Before this court is the plaintiffs’ Motion for Prelimi-
nary Injunction and the defendants’ Motion to Dismiss.
Upon consideration of these motions, the responses
thereto, and the entire record of the case, the court con-
cludes that the plaintiffs’ motion should be denied and
that the defendants’ motion should be granted on the
ground that the plaintiffs lack standing to bring this
action.
I. BACKGROUND
Plaintiffs are four members of the U.S. House of
Representatives who have sued William Clinton, Presi-
dent of the United States, for allegedly violating the
re
App. 17
United States Constitution by issuing Executive Order
13061. On September 11, 1997, President Clinton signed
Executive Order 13061, which created the American Heri-
tage Rivers Initiative (AHRI), an initiative designed “to
protect and restore rivers and their adjacent commu-
nities.” Exec. Order No. 13061, 62 Fed.Reg. 48445 (1997).
Under the AHRI, “the President will designate rivers that
meet certain criteria as ‘American Heritage Rivers,’ ” and
“executive agencies ..., to the extent permitted by
law ..., shall coordinate Federal plans, functions, pro-
grams, and resources to preserve, protect, and restore
rivers and their associated resources important to our
history, culture, and natural heritage.” Id. at Section 1(e),
(b).
The plaintiffs contend that the President may not
create legislation in the form of an Executive Order
unless Congress has expressly delegated such authority
to the President. The plaintiffs argue that Congress has
not delegated to the president the authority to create the
AHRI and that the president’s action of signing Executive
Order 13061 therefore violates the doctrine of Separation
of Powers, as well as the Commerce Clause (Art. L, Sec. 8,
Cl. 3), Property Clause (Art. IV, Sec. 3, Cl. 2), Spending
Clause (Art. I, Sec. 9, Cl. 7) and Tenth Amendment of the
U.S. Constitution, and the Anti-Deficiency Act, 31 U.S.C.
§ 1301 et seg., the Federal Land Policy and Management
Act, 43 U.S.C. § 1701 et seq., and the National Environ-
mental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. Speci-
fically, the President’s action has deprived plaintiffs “of
their ability to exercise their duties to review, debate, and
vote on pending legislation and to conduct oversight
as .. . included within the jurisdiction of their Committee
OE EE ee
App. 18
and Subcommittees,” and “of their constitutionally guar-
anteed responsibilities as Members of Congress to regu-
late interstate commerce, manage and regulate federal
lands, and authorize and appropriate federal expendi-
tures.” (Pls.’ Mot. for Prelim. Inj. at 7.) These are the
injuries upon which the plaintiffs base their standing to
bring this suit.
The defendants claim that Executive Order 13061
relies entirely on existing federal programs and results in
no new regulatory authority, and therefore is constitu-
tional. The defendants argue, further, that it is not neces-
sary to reach the merits of the plaintiffs’ complaint
because the complaint should be dismissed for lack of
standing. The court agrees that the complaint should be
dismissed for lack of standing.
Il. STANDING
For the purposes of determining the plaintiffs’ stand-
ing, “we must assume the validity of the [plaintiffs’]
claim and construe the complaint in favor of the com-
plaining parties.” Moore v. U.S. House of Representatives,
733 F.2d 946, 950 (1984) (citing Warth v. Seldin, 422 U.S.
490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Thus, we
assume for this analysis that the President’s signing of
Executive Order 13061 unconstitutionally violated the
Separation of Powers doctrine and the other constitu-
tional provisions and statutes cited by plaintiffs.
The recent Supreme Court case, Raines v. Byrd, __
U.S. __, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), discusses
the doctrine of standing. The court states,
App. 19
Under Article III, § 2 of the Constitution, the
federal courts have jurisdiction over this dispute
. only if it is a “case” or “controversy.”
- . . One element of the case-or-controversy
requirement is that [plaintiffs], based on their
complaint, must establish that they have stand-
ing to sue. .. . To meet the standing require-
ments of Article III, “[a] plaintiff must allege
personal injury fairly traceable to the defen-
dant’s allegedly unlawful conduct and likely to
be redressed by the requested relief.” .. . [T]o
have standing, the plaintiff must have suffered a
“particularized” injury, which means that “the
injury must affect the plaintiff in a personal and
individual way.”
Raines, __ U.S. at __, 117 S.Ct. at 2317, 138 L.Ed.2d 849
(internal citations omitted).
The Supreme Court further explains, “We have
always insisted on strict compliance with this jurisdic-
tional standing requirement. . . . And our standing
inquiry has been especially rigorous when reaching the
merits of the dispute would force us to decide whether an
action taken by one of the other two branches of the
Federal Government was unconstitutional.” Id. 117 S.Ct.
at 2317-2318 (internal citations omitted). Therefore, the
court concluded, “we must carefully inquire as to
whether appellees have met their burden of establishing
that their claimed injury is personal, particularized, con-
crete, and otherwise judicially cognizable.” Id. at 2318.
Raines is directly relevant to the instant case because
it is the most recent Supreme Court case and one of only
a few addressing the issue of standing for legisiators. In
App. 20
Raines, members of Congress challenged the constitu-
tionality of the Line Item Veto Act, 2 U.S.C.A. § 691 et seq.
(Supp.1997), which gives the President authority to “can-
cel” certain spending and tax benefit measures after he
has signed them into law, thus allegedly diluting the
Congress members’ Article I voting power. While Raines
does not directly address the circumstances of the instant
case, it provides important guide posts for our analysis.
First, Raines distinguishes between a personal injury
(the loss of a private right) and an institutional injury (the
loss of political power) as the basis of a legislator’s stand-
ing. While Raines does not categorically require that
standing be based on a personal/private injury, it does
suggest that a personal injury more strongly supports a
finding of standing than does an institutional injury:
“[A]ppellees’ claim of standing is based on a loss of
political power, not loss of any private right, which
would make the injury more concrete.” Id. 117 S.Ct. at
2318.
That said, however, Raines clearly upholds Coleman v.
Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939),
which found that state legislators claiming an institu-
tional injury had standing. Id. 117 S.Ct. at 2318 (“The one
case in which we have upheld standing for legislators
(albeit state legislators) claiming an institutional injury is
Coleman v. Miller”). In Coleman, 20 Kansas state senators’
“votes against ratification have been overridden and vir-
tually held for naught although if they are right in their
contentions their votes would have been sufficient to
defeat ratification.” Id. at 2319 (quoting Coleman, 307 U.S.
at 438). Therefore, because the legislators “have a plain,
App. 21
direct and adequate interest in maintaining the effective-
ness of their votes,” and their votes were improperly
overridden and effectively nullified, the Supreme Court
upheld the legislators’ standing. Id.
In the instant case, while the plaintiffs argue that
they have suffered personal injuries as members of speci-
fic House Committees and Subcommittees, their injuries
are clearly institutional, rather than personal. The Raines
court identified an institutional injury as follows:
If one of the Members were to retire tomorrow,
he would no longer have a claim; the claim
would be possessed by his successor instead.
The claimed injury thus runs (in a sense) with
the Member’s seat, a seat which the Member
holds (it may quite arguably be said) as trustee
for his constituents, not as a prerogative of per-
sonal power.
Id. 117 S.Ct. at 2318. In contrast, an indication of a
personal injury is when the plaintiffs have been singled
out for specially unfavorable treatment relative to other
Members of their respective bodies. Id. The plaintiffs in
the instant case have not been singled out for unfavorable
treatment relative to their fellow legislators, nor would
their claim continue to exist if they were to retire. Their
alleged injuries, therefore, are institutional rather than
personal.
While Raines upheld the viability of an institutional
injury as a basis for standing, the Court substantially
limited the reach of its determination by stating “that our
holding in Coleman stands (at most, see n. 8, infra) for the
Proposition that legislators whose votes would have been
sufficient to defeat (or enact) a specific legislative act
App. 22
have standing to sue if that legislative action goes into
effect (or does not go into effect), on the ground that their
votes have been completely nullified.” Id. The court con-
cluded, therefore, that the plaintiffs in Raines did not
have standing, under Coleman, because they neither (1)
matched the specific circumstances of Coleman, nor (2)
had their votes nullified to the extent of the legislators in
Coleman, since “[i]n the future, a majority of Senators and
Congressmen can pass or reject appropriations bills
'. can vote to repeal the Act, or to exempt a given
appropriations bill . . . from the Act... .” Id. 117 S.Ct. at
2320. Regarding this second prong, the court explained,
“There is a vast difference between the level of vote
nullification at issue in Coleman and the abstract dilution
of institutional legislative power that is alleged here. To
uphold standing here would require a drastic extension
of Coleman. We are unwilling to take that step.” Id. 117
S.Ct. at 2320-2321. The court concluded, “In sum, appel-
lees have alleged no injury to themselves as individuals
(contra Powell), the institutional injury they alleged is
wholly abstract and widely dispersed (contra Coleman),
and their attempt to mitigate this dispute at this time and
in this form is contrary to historical experience.” Id. 117
S.Ct. at 2322.
As applied to the instant case, Raines directs that,
given the vigorous standing inquiry that applies to suits
alleging unconstitutional action by the legislative or exec-
utive branch, and the relative weakness of institutional
injuries compared to personal injuries, an institutional
injury may support legislative standing only if the injury
occurs under the same circumstances as those in Coleman,
or in some other way matches the level and quality of
App. 23
vote nullification that took place in Coleman. The Raines
plaintiffs failed to establish standing because their injury
was too abstract and dispersed, and did not reach the
required level of vote nullification because legislative
remedies were still available to them. The question we
must answer, therefore, is whether the alleged injury
suffered by Congresswoman Chenoweth and her fellow
plaintiffs matches the vote nullification that took place in
Coleman.
The plaintiffs in the instant case have suffered an
injury (assuming, for the sake of this standing analysis,
that their allegations are true) that is a greater nullifica-
tion of their voting power than that suffered by the
plaintiffs in Coleman, since the instant plaintiffs never
even had the opportunity to debate and vote on the
AHRI. The quality of plaintiffs’ injury, however, is too.
abstract and not sufficiently specific to support a finding
of standing. As defendants assert, the plaintiffs’ claims
that the AHRI violates the U.S. Constitution and other
Federal statutes “are precisely the kind of ‘generalized
grievance[s] about the conduct of government’ that the
D.C. Circuit Court of Appeals, even before [Raines],
has held ‘lacks the specificity to support a claim of stand-
ing.’ ” (Defs.’ Mem. in Opp. to Pls.’ Mot. for Prelim. Inj. at
13) (quoting American Federation of Government Employees,
AFL-CIO v. Pierce, 697 F.2d 303, 305 (1982), Valley Forge
Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982)). “[I]n the absence of any relation to a
specific piece of legislation,” the defendants argue, “the
plaintiffs’ assertion of standing is governed - and de-
feated - by the line of cases holding that a plaintiff's
App. 24
status as a member of Congress does not give [him or
her] standing to sue for a declaration that executive activ-
ities are illegal.” Id. at 14 (internal quotes omitted).
Defendants’ analysis of the D.C. Circuit case law is
correct. While the plaintiffs are correct that D.C. Circuit
cases have upheld the principle that a legislator has
standing when the legislator has suffered an injury to his
“interest in the process by which a bill becomes a law,”
Pierce, 697 F.2d at 305; Moore, 733 F.2d 946, other D.C.
Circuit cases have held that an injury like the one claimed
by the instant plaintiffs, perpetrated by the Executive
branch and unrelated to a specific piece of legislation, is
not sufficiently specific to support standing. United Pres-
byterian Church in the USA v. Reagan, 738 F.2d 1375 (1984),
Harrington v. Bush, 553 F.2d 190 (1977), Daughtrey v. Car-
ter, 584 F.2d 1050 (1978). This latter line of cases gains
support from the rationale offered by Justice Souter in his
concurrence in Raines that, “[b]ecause it is fairly debat;
ble whether appellees’ injury is sufficiently personal and
concrete to give them standing, it behooves us to resolve
the question under more general separation-of-powers
principles underlying our standing requirements.” Raines,
___ U.S. at ___, 117 S.Ct. at 2324, 138 L.Ed.2d 849 (Souter,
J., concurring).
-In Pierce, the Secretary of Housing and Urban Devel-
opment (HUD) planned to carry out a reduction-in-force
of the agency, which was prohibited by statute without
the prior approval of the Committees on Appropriations.
Because the plaintiff congressman was a member of the
House Appropriations Committee, the Secretary’s pro-
posed action, which had not been approved by the
Appropriations Committees, injured the plaintiff. The
App. 25
plaintiff congressman had standing to challenge the Sec-
retary’s action because it deprived “him of [a] specific
statutory right to participate in the legislative process.”
Id. This injury was sufficiently specific and concrete
because of the specific statutory authority given only to
members of the Committees on Appropriations to pre-
approve any reorganizations of the HUD department.
Moore v. U.S. House of Representatives, upon which
plaintiffs primarily rely, found that the plaintiff Members
of the House of Representatives had standing to chal-
lenge the Tax Equity and Fiscal Responsibility Act of 1982
(TEFRA), allegedly a revenue-raising bill, on the basis
that it contravened the constitutional mandate that reve-
nue-raising bills originate in the House, rather than in the
Senate. “The injury alleged by [plaintiffs] here is to an
interest positively identified by the Constitution, which
mandates the specific procedure by which a revenue-
raising bill shall become law.” Moore, 733 F.2d at 951. The
court found that the plaintiffs’ alleged injury, the depriva-
tion of an opportunity to debate and vote on the origina-
tion of TEFRA in the House, was “specific and concrete.”
Id. at 952. The plaintiffs in Moore, unlike the instant
plaintiffs, were challenging the action of the Senate in
relation to a specific piece of legislation.
In contrast, United Presbyterian, Harrington, and
Daughtrey denied standing to plaintiffs challenging exec-
utive actions unrelated to passing a specific piece of
legislation, as in the instant case, on the basis that their
injuries were not sufficiently specific. United Presbyterian,
in particular, involved facts very similar to the instant
case. The United Presbyterian plaintiffs, which included
one member of Congress, claimed that an Executive
App. 26
Order unconstitutionally violated the principal of separa-
tion of powers because it was promulgated without con-
gressional authorization. United Presbyterian Church, 738
F.2d at 1377. The D.C. Circuit characterized the congress-
man plaintiff’s argument for standing as follows: “[The
congressman] asserts that the Executive Order confers
authority on the intelligence agencies beyond that autho-
rized by Congress, and indeed that the order violates
express limitations imposed by Congress. Therefore,
appellant [congressman] claims that his powers as a legis-
lator has been diminished, constituting sufficient injury
to give him standing.” Id. at 1381. The court found that
the congressman did not have standing because “his com-
plaint is a generalized grievance about the conduct of
government, not a claim founded on injury to the legisla-
tor by distortion of the process by which a bill becomes
law.” Id. at 1382 (quoting Moore, 733 F.2d at 952). The
court further explained, “standing does not exist
. where the legislator’s grievance consists of gener-
alized, amorphous injuries due to... the conduct of the
Executive . . . [or] a generalized complaint that [his]
effectiveness is diminished by allegedly illegal activities
taking place outside the legislative forum.” Id. (quoting
Moore, 733 F.2d at 951). The circumstances of United Pres-
byterian are sufficiently similar to the instant case that its
holding directs us to find that the instant plaintiffs do not
have standing.
In Harrington v. Bush, a Member of the U.S. House of
Representatives sued for a declaration that certain foreign
and domestic activities of the CIA were illegal and for an
injunction prohibiting the CIA from using provisions of
the Central Intelligence Agency Act of 1949 in connection
App. 27
with the allegedly illegal activities. The plaintiff con-
tended that the CIA's activities exceeded its delegated
Statutory authority, and that the use of the CIA Act
provisions in conjunction with these activities was illegal.
To establish standing, the plaintiff alleged that the CIA’s
activities injured his participation in the legislative pro-
cess. The court found, however, that the plaintiff had
“failed to show injury to his effectiveness as a Congress-
man,” and thus had “no right to invoke the power of the
federal judiciary.” Harrington, 553 F.2d at 213.
In Daughtrey v. Carter, the plaintiffs, including two
members of the U.S. House of Representatives, sued for
declaratory relief and an injunction to restrain the opera-
tion of a Presidential Proclamation entitled Granting Par-
don for Violations of the Selective Service Act, and an
Executive Order implementing that Proclamation. The
plaintiffs contended that the president had exceeded the
limits of his constitutional pardon power and usurped the
power of Congress because executing the Order would
purportedly violate a provision of the Immigration and
Nationality Act. The court, characterizing the complaint
as a “challenge to the failure of the Attorney General to
enforce provisions of the Immigration and Nationality
Act,” found that the Congressmen lacked standing
because the executive branch’s failure to enforce legisla-
tion “does not affect the legal status of such legislation,
nor does it invade, usurp, or infringe upon a Congress-
man’s power to make law.” Daughtrey, 584 F.2d at 1057.
App. 28
Ill. CONCLUSION
The defendants are correct that the D.C. Circuit case
law consistently denies standing for legislators challeng-
ing executive actions unrelated to passing a specific piece
of legislation, without some further indication of con-
creteness or specificity. We must conclude in the instant
case, therefore, that the instant plaintiffs, as Members of
the U.S. House of Representatives challenging the consti-
tutionality of an Executive Order for its lack of Congres-
sionally delegated authority, are alleging injuries not
sufficiently specific to support a finding of standing.
An appropriate order accompanies this memoran-
dum.
ORDER
Pursuant to Fed.R.Civ.P. 58 and for the reasons stated
by the court in its memorandum docketed this same day,
it is this 2nd day of March 1998, hereby
ORDERED, that plaintiffs’ motion for a preliminary
injunction (document # 3) is denied; and it is further
ORDERED and ADJUDGED that defendants’ motion
to dismiss (document # 4) is granted and judgment is
entered in favor of defendants.
App. 29
United States Court of Appeals
For Tue District or Cotumsia Circuit
No. 98-5095 September Term, 1999
97¢v02954
Helen Chenoweth, Honorable, et al.,
Appellants
v.
William J. Clinton, President
of the United States, et al.,
Appellees
BEFORE: Edwards, Chief Judge; Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson,
Randolph, Rogers, Tatel and Garland, Cir-
cuit Judges
ORDER
(Filed Sept. 3, 1999)
Upon consideration of appellants’ petition for rehear-
ing en banc, and the absence of a request by any member
of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/ Robert A. Bonner
Robert A. Bonner
Deputy Clerk
Circuit Judge Wald did not participate in this matter.
App. 30
Federal Register
Vol. 62, No. 178
Monday, September 15, 1997
—_—_—_ ——{CnQ@EQrle000n00n0nppq]wE"o0==e=E_e_=q@_—”q=g*q@qamamry—_"=—m00==0—=—=—{—{T"El™__Q0_@_=_—=——T_™>™"__=I==
Presidential Documents
Executive Order 13061 of September 11, 1997
Federal Support of Community Efforts Along American
Heritage Rivers
By the authority vested in me as President by the Consti-
tution and the laws of the United States of America,
including the National Environmental Policy Act of 1969
(Public Law 91-190), and in order to protect and restore
rivers and their adjacent communities, it is hereby
ordered as follows:
Section 1. Policies.
(a) The American Heritage Rivers initiative has
three objectives: natural resource and environmental pro-
tection, economic revitalization, and historic and cultural
preservation.
(b) Executive agencies (“agencies”), to the extent
permitted by law and consistent with their missions and
resources, shall coordinate Federal plans, functions, pro-
grams, and resources to preserve, protect, and restore
rivers and their associated resources important to our
history, culture, and natural heritage.
(c) Agencies shall develop plans to bring increased
efficiencies to existing and authorized programs with
App. 31
goals that are supportive of protection and restoration of
communities along rivers.
(d) In accordance with Executive Order 12630,
agencies shall act with due regard for the protection of
private property provided for by the Fifth Amendment to
the United States Constitution. No new regulatory
authority is created as a result of the American Heritage
Rivers initiative. This initiative will not interfere with
matters of State, local, and tribal government jurisdiction.
(e) In furtherance of these policies, the President
will designate rivers that meet certain criteria as “Ameri-
can Heritage Rivers.”
(f) It is the policy of the Federal Government that
communities shall nominate rivers as American Heritage
Rivers and the Federal role will be solely to support
community-based efforts to preserve, protect, and restore
these rivers and their communities.
(g) Agencies should, to the extent practicable, help
identify resources in the private and nonprofit sectors to
aid revitalization efforts.
(h) Agencies are encouraged, to the extent permit-
ted by law, to develop partnerships with State, local, and
tribal governments and community and nongovernmen-
tal organizations. Agencies will be responsible to the
diverse needs of different kinds of communities from the
core of our cities to remote rural areas and shall seek to
ensure that the role played by the Federal Government is
complementary to the plans and work being carried out
by State, local, and tribal governments. To the extent
possible, Federal resources will be Strategically directed
App. 32
to complement resources being spent by these govern-
ments.
(i) Agencies shall establish a method for field
offices to assess the success of the American Heritage
River initiative and provide a means to recommend
changes that will improve the delivery and accessibility
of Federal services and programs. Agencies are directed,
where appropriate, to reduce and make more flexible
procedural requirements and paperwork related to pro-
viding assistance to communities along designated rivers.
(j) Agencies shall commit to a policy under which
they will seek to ensure that their actions have a positive
effect on the natural, historic, economic, and cultural
resources of American Heritage River communities. The
policy will require agencies to consult with American
Heritage River communities early in the planning states
of Federal actions, take in to account the communities’
goals and objectives and ensure that actions are compati-
ble with the overall character of these communities.
Agencies shall seek to ensure that their help for one-
community does not adversely affect neighboring com-
munities. Additionally, agencies are encouraged to
| develop formal and informal partnerships to assist com-
| munities. Local Federal facilities, to the extent permitted
by law and consistent with the agencies’ missions and
resources, should provide public access, physical space,
technical assistance, and other support for American Her-
itage River communities.
(k) In addition to providing support to designated
rivers, agencies will work together to provide informa-
tion and services to all communities seeking support.
App. 33
Sec. 2. Process for Nominating an American Heritage River.
(a) Nomination. Communities, in coordination with
their State, local, or tribal governments, can nominate
their river, river stretch, or river confluence for designa-
tion as an American Heritage River. When several com-
munities are involved in the nomination of the same
river, nominations will detail the coordination among the
interested communities and the role each will play in the
process. Individuals living outside the community may
not nominate a river.
(b) Selection Criteria. Nominations will be judged
based on the following:
(1) the characteristics of the natural, economic, agri-
cultural, scenic, historic, cultural, or recreational
resources of the river that render it distinctive or unique;
(2) the effectiveness with which the community has
defined its plan of action and the extent to which the plan
addresses, either through planned actions or past accom-
plishments, all three American Heritage Rivers objectives,
which are set forth in section 1(a) of this order;
(3) the strength and diversity of community support
for the nomination as evidence by letters from elected
officials, landowners; private citizens; businesses; and
especially State, local, and tribal governments. Broad
community support is essential to receiving the American
Heritage River designation; and
(4) willingness and capability of the community to
forge partnerships and agreements to implement their
plan to meet their goals and objectives.
(c) Recommendation Process.
App. 34
The Chair of the Council on Environmental Quality
(“CEQ”) shall develop a fair and objective procedure to
obtain the views of a diverse group of experts for the
purpose of making recommendations to the President as
to which rivers shall be designated. These experts shall
reflect a variety of viewpoints, such as those representing
natural, cultural, and historic resources; scenic, environ-
mental, and recreation interests; tourism, transportation,
and economic development interests; and industries such
as agriculture, hydropower, manufacturing, mining, and
forest management. The Chair of the CEQ will ensure
that the rivers recommended represent a variety of
stream sizes, diverse geographical locations, and a wide
range of settings from urban to rural and ensure that
relatively pristine, successful revitalization efforts are
considered as well as degraded rivers in need of restora-
tion.
(d) Designation.
(1) The President will designate certain rivers as
American Heritage Rivers. Based on the receipt of a suffi-
cient number of qualified nominations, ten rivers will be
designated in the first phase of the initiative.
(2) The Interagency Committee provided for in sec-
tion 3 of this order shall develop a process by which any
community that nominates and has its river designated
may have this designation terminated at its request.
(3) Upon a determination by the Chair of the CEQ
that a community has failed to implement its plan, the
Chair may recommend to the President that a designation
be revoked. The chair shall notify the community at least
30 days prior to making such a recommendation to the
App. 35
President. Based on that recommendation, the President
may revoke the designation.
Sec. 3. Establishment of an Interagency Committee. There
is hereby established the American Heritage rivers Inter-
agency Committee (“Committee”). The Committee shall
have two co-chairs. The Chair of the CEQ shall be a
permanent co-chair. The other co-chair will rotate among
the heads of the agencies listed below.
(a) The Committee shall be composed of the follow-
ing members or their designees at the Assistant Secretary
level or equivalent:
(1) The Secretary of Defense;
(2) The Attorney General;
(3) The Secretary of the Interior;
(4) The Secretary of Agriculture;
(5) The Secretary of Commerce;
(6) The Secretary of Housing and Urban Develop-
ment;
(7) The Secretary of Transportation;
(8) The Secretary of Energy;
(9) The Administrator of the Environmental Protec-
tion Agency;
(10) The Chair of the Advisory Council on Historic
Preservation;
(11) The Chair person of the National Endowment
for the Arts; and
App. 36
(12) The Chairperson of the National Endowment
for the Humanities.
The Chair of the CEQ may invite to participate in
meetings of the Committee, representatives of other agen-
cies, as appropriate.
(b) The Committee shall:
(1) establish formal guidelines for designation as an
American Heritage River;
(2) periodically review the actions of agencies in
support of the American Heritage Rivers;
(3) report to the President on the progress, accom-
plishments, and effectiveness of the American Heritage
Rivers initiative; and
(4) perform other duties as directed by the Chair of
the CEQ.
Sec. 4. Responsibilities of the Federal Agencies. Consistent
with Title I of the National Environmental Policy Act of
1969, agencies shall:
(a) identify their existing programs and plans that
give them the authority to offer assistance to commu-
nities involved in river conservation and community
health and revitalization;
(b) to the extent practicable and permitted by law
and regulation, refocus programs, grants, and technical
assistance to provide support for communities adjacent to
American Heritage Rivers;
(c) identify all technical tools, including those
developed for purposes other than river conservation,
App. 37
that can be applied to river protection, restoration, and
community revitalization;
(d) provide access to existing scientific data and
information to the extent permitted by law and consistent
with the agencies mission and resources;
(e) cooperate with State, local, and tribal govern-
ments and communities with respect to their activities
that take place in, or affect the area around, an American
Heritage River;
(f) commit to a policy, as set forth in section 1(j) of
this order, in making decisions affecting the quality of an
American Heritage River;
(g) select from among all the agencies a single indi-
vidual called the “River Navigator,” for each river that is
designated an American Heritage River, with whom the
communities can communicate goals and needs and who
will facilitate community-agency interchange;
(h) allow public access to the river, for agencies
with facilities along American Heritage Rivers, to the
extent practicable and consistent with their mission; and
(i) cooperate, as appropriate, with communities on
projects that protect or preserve stretches of the river that
are on Federal property or adjacent to a Federal facility.
Sec. 5. Responsibilities of the Committee and the Council on
Environmental Quality. The CEQ shall serve as Executive
Agent for the Committee, and the CEQ and the Commit-
tee shall ensure the implementation of the policies and
purposes of this initiative.
App. 38
Sec. 6. Definition. For the purposes of this order, Execu-
tive agency means any agency on the Committee and
such other agency as may be designated by the President.
Sec. 7. Judicial Review. This order does not create any
right or benefit, substantive or procedural, enforceable by
any party against the United States, its agencies or instru-
mentalities, its officers or employees, or any other person.
/s/ William J. Clinton
THE WHITE HOUSE,
September 11, 1997.
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.