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Brady Campaign to Prevent Gun Violence v. Salazar

March 19, 2009

BRADY CAMPAIGN TO PREVENT GUN VIOLENCE, PLAINTIFF,
v.
KENNETH L. SALAZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL. DEFENDANTS.
NATIONAL PARKS CONSERVATION ASSOCIATION, ET AL., PLAINTIFFS,
v.
KENNETH L. SALAZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Approximately 25 years ago, the Department of the Interior implemented regulations that generally prohibited possession of firearms in national parks unless they were "packed, cased or stored in a manner that [would] prevent their ready use." 48 Fed. Reg. 30,252 (June 30, 1983), codified at 36 C.F.R. § 2.4(a)(2). A similar regulation applied to firearms in national wildlife refuges. See 49 Fed. Reg. 18,444 (April 30, 1984), codified at 50 C.F.R. § 27.42(e). These firearm restrictions are no longer in place. On December 10, 2008, the Department of the Interior promulgated a final rule that allows persons to possess concealed, loaded, and operable firearms in national parks and wildlife refuges in accordance with the laws of the state in which the national park or wildlife refuge is located: a person may possess, carry, and transport concealed, loaded, and operable firearms within a [national park or national wildlife refuge] in accordance with the laws of the state in which the [national park or national wildlife refuge], or that portion thereof, is located, except as otherwise prohibited by applicable Federal law.

73 Fed. Reg. 74,966, 74,972 (Dec. 10, 2008), amending 36 C.F.R. § 2.4, 50 C.F.R. § 27.42 (hereinafter, the "Final Rule"). Prior to issuing the Final Rule, the Department of the Interior did not prepare an environmental assessment or an environmental impact statement pursuant to the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 4331, et seq.

Plaintiffs Brady Campaign to Prevent Gun Violence ("Brady") and National Parks Conservation Association (along with two other Plaintiff organizations, "NPCA"),*fn1 have brought suit against Secretary Kenneth Salazar, in his official capacity as Secretary of the United States Department of the Interior ("DOI"), and numerous other governmental entities and officials (collectively, "Defendants").*fn2 Plaintiffs assert, inter alia, that Defendants failed to consider the Final Rule's environmental impacts in violation of NEPA and multiple other Congressional statutes.*fn3

The lynchpin of Defendants' response is that the Final Rule has no environmental impacts--and that Defendants were not required to perform any environmental analysis--because the Final Rule only authorizes persons topossess concealed, loaded, and operable firearms in national parks and wildlife refuges, and does not authorize persons to discharge, brandish, or otherwise use the concealed, loaded, and operable firearms. In other words, the Final Rule has no environmental impacts according to Defendants because the Final Rule does not authorize any environmental impacts. By relying on this tautology, Defendants (1) abdicated their Congressionally-mandated obligation to evaluate all reasonably foreseeable environmental impacts, whether authorized by the Final Rule or not, and (2) ignored (without sufficient explanation) substantial information in the administrative record concerning environmental impacts, including (i) Defendants' own long-standing belief under the previous regulations that allowing only inoperable and stored firearms in national parks and wildlife refuges was necessary to safeguard against certain risks to the environment and (ii) the almost universal view among interested parties that persons who possess concealed, loaded, and operable firearms in national parks and wildlife refuges will use them for any number of reasons, including self-defense against persons and animals (all of which suggests that the Final Rule will have some impact on the environment).

Currently pending before the Court is Plaintiffs' Motion for a Preliminary Injunction to enjoin implementation of the Final Rule. Because the Court finds that the Final Rule is the product of Defendants' astoundingly flawed process, the Court holds that Plaintiffs are highly likely to prevail on the merits of their NEPA claims.*fn4 The Court also holds that Plaintiffs have met their burden to show a likelihood of irreparable harm, the absence of significant harm to other interested persons or entities, and that the public interest weighs in favor of preliminary injunctive relief. Having balanced all of these considerations and found that they weigh in favor of issuing a preliminary injunction, the Court shall GRANT Plaintiffs' Motion for a Preliminary Injunction.

In reaching this decision, the Court emphasizes that, despite many of the arguments raised by the parties, intervenor-movants, and amici curiae, this case is not a platform for resolving disputes concerning the merits of concealed weapons or laws related to concealed weapons that are appropriately directed to the other branches of government. The Court is bound to consider only whether Defendants have complied with Congress' statutes and regulations, and not whether Defendants have made wise judgments in any normative sense. Accordingly, the Court expresses no view as to the merits of any laws or regulations related to concealed weapons or firearms generally.

I. BACKGROUND

A. Factual Background

As explained above, previous regulations pertaining to national parks and wildlife refuges generally prohibited possession of firearms unless they were unloaded and packed, cased, or stored in a manner that prevented their ready use. 48 Fed. Reg. 30,252 (June 30, 1983); 49 Fed. Reg. 18,444 (April 30, 1984). These regulations were "designed to ensure public safety and provide maximum protection of natural resources by limiting the opportunity for unauthorized use of weapons... while providing reasonable regulatory relief for persons living within or traveling through park areas." 48 Fed. Reg. at 30,265.*fn5 As reflected in the Administrative Record, this view persisted among Defendants until recently. See, e.g., A.R. 339 (11/29/06 National Park Service Briefing Statement) (repeating the justification for firearm restrictions in national parks and adding that "[m]ost weapons carried for the protection from wildlife are not adequate for that purpose. Untrained individuals attempting to protect themselves from dangerous animals often exacerbate the situation").

Defendants' views changed. On December 14, 2007, forty-seven United States Senators wrote to the Secretary of the Interior asking to have these restrictions lifted. 73 Fed. Reg. 74,966, 74,967 (Dec. 10, 2008). Four additional United States Senators made a similar request on February 11, 2008. Id.*fn6 The DOI "chose to address this issue" on April 30, 2008, by proposing a new rule to allow persons to possess concealed, loaded, and operable firearms in national parks and wildlife refuges to the extent permitted in any state park or wildlife refuge in the state in which the federal park or wildlife refuge was located: an individual will be able to possess, carry, and transport concealed, loaded, and operable firearms within a [national park or wildlife refuge] in the same manner, and to the same extent, that a person may lawfully possess, carry, and transport concealed, loaded and operable firearms in any [state park or state wildlife refuge] in the state in which the [national park or wildlife refuge], or that portion thereof, is located.

73 Fed. Reg. 23,388 (Apr. 30, 2008). The DOI explained that the purpose of this proposed rule was to better respect the rights of states, forty-eight of which "provide for the possession of concealed firearms by their citizens," a larger number than when the previous regulations were promulgated. Id. Accordingly, the DOI explained that the regulations "should be amended to defer to this development in State law." Id. at 23,389.

Conspicuous by its absence, however, was any indication that the previously-recognized "public safety" and "protection of natural resources" concerns had been alleviated over time. Id. Instead, the DOI simply acknowledged "its obligations under NEPA to assess the impact of any Federal action significantly affecting the quality of the human environment, health, and safety," and noted that it was "currently working to determine the appropriate level of NEPA assessment and documentation that will be required for promulgation of this regulation." Id. at 23,390.

The proposed rule requested public comments until June 30, 2008, a date that was later extended by an additional thirty days. 73 Fed. Reg. at 74,967. In total, the DOI received approximately 125,000 public comments on the proposed rule. Id. Significantly--and as described in greater detail below--many of the comments suggested that allowing persons to possess concealed, loaded, and operative firearms in national parks and wildlife refuges would result in the use of those firearms, particularly for self-defense. See, e.g., A.R. 1927 ("I [] go back packing and would like to be able to carr[ry] my fire arm [sic] with me for possible wild animal attack"); A.R. 5609 ("for those of us who have conceal[ed] carry permits, we carry [firearms] for the protection of our families and self from those who would do us harm. We are not looking to shoot anyone unless we are forced to in order to protect our family"). The DOI formed a working group to analyze these comments and to provide responses in the Final Rule.

73 Fed. Reg. at 74,968-74,970.

On December 10, 2008, the DOI published the Final Rule, making one significant modification from the proposed rule. Whereas the proposed rule permitted persons to possess concealed, loaded, and operative firearms if permitted in any state park or wildlife refuge in which the federal park or wildlife refuge was located, the Final Rule authorizes persons to possess concealed, loaded, and operative firearms if permitted in accordance with state law generally: a person may possess, carry, and transport concealed, loaded, and operable firearms within a [national park or national wildlife refuge] in accordance with the laws of the state in which the [national park or national wildlife refuge], or that portion thereof, is located, except as otherwise prohibited by applicable Federal law. 73 Fed. Reg. at 74,971. The DOI made this change because "the reference to 'similar state lands' in the proposed rule was ambiguous and led to confusion as to what rules would apply to particular Federal park areas and national wildlife refuges." Id. at 74,969.

In terms of its obligations under NEPA, the DOI explained that the Final Rule did not raise any environmental concerns that required evaluation:

The [DOI] has analyzed the [Final Rule] under NEPA and determined that the action is subject to a categorical exclusion under applicable regulations. First, the [Final Rule] is in the nature of a legal change to existing rules that will not have any actual effects on the environment. And second, the [DOI] has determined that no 'extraordinary circumstances' exist which would prevent the proposed action from being classified as categorically excluded. This decision is fully described in [the DOI's] decision document dated November 18, 2008....

Id. at 74,971. The DOI's Decision Memorandum, in turn, reflects the DOI's tautological reasoning that the Final Rule will have no environmental impacts because it does not authorize any environmental impacts: the [DOI] has concluded that the final rule will not have any actual effects on the environment... the amendment does not allow visitors to fire or discharge the firearms in any way, brandish the weapon in the view of others, or use the firearm in any other way. In this regard, the [Final Rule] does not authorize any actual impacts on the environment, and thus meets the test for a categorical exclusion under relevant regulations and judicial precedent.

A.R. 200 (11/18/08 Decision Memorandum) (emphasis in original).*fn7 The Final Rule became effective on January 9, 2009. See 73 Fed. Reg. at 74,966.

B. Procedural Background

Brady filed a lawsuit on December 30, 2008. NPCA filed a separate lawsuit on January 6, 2009, along with a Motion for a Preliminary Injunction. See NPCA v. Salazar, Civ. A. No. 09-013, Docket No. [4]. Brady then filed its own Motion for a Preliminary Injunction on January 9, 2009, incorporating by reference NPCA's memorandum of law and facts. See Brady v. Salazar, Civ. A. No. 08-2234, Docket No. [5]. Because both motions rely on the same underlying memorandum of law and facts, the Court shall refer throughout this Memorandum Opinion to "Plaintiffs' Motion for a Preliminary Injunction."

The Court held a conference call on January 8, 2009, with counsel representing all Plaintiffs and Defendants to discuss a briefing schedule for Plaintiffs' Motion for a Preliminary Injunction. All parties agreed that "they would suffer no prejudice by extending the briefing on the preliminary injunction motion beyond the schedule provided by Local Civil Rule 65.1," and the Court "also [found] that no prejudice would result." Min. Order dated Jan. 9, 2009. After a discussion on the record, the Court agreed to adopt the schedule proposed by the parties that allowed Defendants to respond to Plaintiffs' Motion for a Preliminary Injunction by January 30, 2009, and would result in the full briefing of the motion no later than February 13, 2009.

On January 20, 2009, (i.e. after the conference call with the Court but before the date by which Defendants were to respond to Plaintiffs' Motion for a Preliminary Injunction), President Barack Obama took office. Defendants moved for a two-week extension of the briefing schedule "to provide the new administration that took office... an opportunity to consider the issues raised by Plaintiffs' motions." See Unopposed Mot. for Extension at 2 (Jan. 27, 2009). The Court granted the motion to extend the schedule, allowing Defendants until February 13, 2009, to file a response to Plaintiffs' Motion for a Preliminary Injunction, and resulting in the full briefing of the motion no later than February 27, 2009.

Pursuant to the amended schedule set by the Court, Defendants submitted the complete administrative record on February 5, 2009, and submitted an Opposition to Plaintiffs' Motion for a Preliminary Injunction on February 13, 2009 ("Defs.' Opp'n"). Brady and NPCA filed separate Replies in support of the Motion for a Preliminary Injunction on February 23, 2009 ("Brady Reply" and "NPCA Reply," respectively). Pursuant to the amended schedule set by the Court, Defendants filed a consolidated Sur-Reply on February 27, 2009 ("Defs.' Sur-Reply").

The Court also received motions from two organizations seeking to intervene as Defendants. The Mountain States Legal Foundation ("MSLF") filed a Motion to Intervene as a Defendant in both cases on January 23, 2009. The National Rifle Association ("NRA") filed a Motion to Intervene as a Defendant in both cases on January 28, 2009, and February 25, 2009, respectively. During the pendency of the motions, both the MSLF and the NRA filed Oppositions to Plaintiffs' Motion for a Preliminary Injunction. Defendants took no position with respect to the Motions to Intervene, and Plaintiffs in both cases opposed intervention. For reasons the Court shall articulate by separate Order, the Court has allowed both the MSLF and the NRA to intervene as of right as Defendants in the above-captioned cases.*fn8 Accordingly, the Court has considered the Oppositions to Plaintiffs' Motion for a Preliminary Injunction filed by the MSLF and the NRA.

The Court also received motions from several organizations seeking to participate as amici curiae. The Friends of Acadia and Maine Citizens Against Handgun Violence (collectively, "FOA") filed an Unopposed Motion for Leave to Participate as Amicus Curiae in both cases on February 6, 2009. Safari Club International ("SCI") also filed an Unopposed Motion for Leave to Participate as Amicus Curiae in both cases on February 17, 2009. The Court granted both motions. Accordingly, the Court has reviewed FOA and SCI's amici briefs for purposes of ruling on Plaintiffs' Motion for a Preliminary Injunction.

Finally, each of the parties has moved to submit extra-record evidence in support of various arguments. Brady filed a partially opposed motion to submit various declarations "in support of its position that it has standing and will suffer irreparable harm from Defendants' actions," which the Court granted by Minute Order dated March 4, 2009. Similarly, NPCA filed a partially opposed motion to submit a supplemental declaration, which the Court granted-in-part and denied-in-part by Minute Order dated March 19, 2009. Finally, Defendants filed a Motion to submit an "extra-record document" that "evidences Federal Defendants' interpretation of the regulations at issue." See Defs.' Mot. to Submit Doc. at 2. Even though the Court finds that consideration of this document is unnecessary to resolve the issues associated with Plaintiffs' Motion for a Preliminary Injunction, Plaintiffs did not oppose its submission and the Court granted the motion by Minute Order dated March 19, 2009.

Based on the foregoing, Plaintiffs' Motion for a Preliminary Injunction is fully briefed and ripe for decision.

II. LEGAL STANDARDS

A. Preliminary Injunctions

To obtain preliminary injunctive relief, a moving party must show: (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). In applying this four-factored standard, district courts may employ a sliding scale under which a particularly strong showing in one area can compensate for weakness in another. Id. Accordingly, "[i]f the showing in one area is particularly strong, an injunction may issue even if the showings in other areas are rather weak." Id. (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)). Nevertheless, the D.C. Circuit has advised that a movant must demonstrate "'at least some injury' for a preliminary injunction to issue... [because] 'the basis of injunctive relief in federal courts has always been irreparable harm....'" Id. (quoting CityFed, 58 F.3d at 747; Sampson v. Murray, 415 U.S. 61, 88 (1974)).

Defendants raise an argument (albeit in a footnote) that this standard for a preliminary injunction has been circumscribed by the Supreme Court's decision in Winter v. Natural. Res. Def. Council, Inc., __ U.S. __, 129 S.Ct. 365 (2008). See Defs.' Opp'n at 11 n.8. See also MSLF Opp'n at 3 (discussing the application of Winter). The Court disagrees. In Winter, the Supreme Court held that the Court of Appeals for the Ninth Circuit had applied an erroneous legal standard by affirming a district court's preliminary injunction when the plaintiff had only shown a "possibility" of irreparable harm and where the district court had made almost no attempt to analyze the balance of equities and the public interest. See 129 S.Ct. at 375, 378. The Supreme Court found that this standard was too "lenient," and reaffirmed that a preliminary injunction should issue only when "irreparable injury is likely in the absence of an injunction." Id. (emphasis in original). The Court had no occasion to examine the D.C. Circuit's precedents allowing a plaintiff's strong showing in one area to compensate for weakness in another. Id. at 392 (Ginsburg, J., Dissenting) ("courts have evaluated claims for equitable relief on a 'sliding scale,' sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high... This Court has never rejected that formulation, and I do not believe it does so today."). In any event, because the D.C. Circuit's precedents require a plaintiff to show that "it would suffer irreparable injury if the injunction were not granted," Chaplaincy, 454 F.3d at 297, the Court finds that the D.C. Circuit's sliding-scale standard remains viable even in light of the decision in Winter.*fn9

B. Administrative Procedure Act

Although the Court has discussed Plaintiffs' claims in the context of NEPA, that statute does not provide a private right of action. See Karst Envtl. Educ. & Prot., Inc. v. Envtl. Prot. Agency, 475 F.3d 1291, 1295 (D.C. Cir. 2007). Accordingly, Plaintiffs assert their NEPA claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.

Under the APA, the Court sets aside an agency action that is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706. Compliance with NEPA, as well as its procedures related to environmental evaluations, are properly analyzed under the "arbitrary and capricious standard." Nat'l Trust for Historic Pres. in the U.S. v. Dole, 828 F.2d 776, 781 (D.C. Cir. 1987). The scope of review under this standard is well-established: the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, [the court] must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment... Normally, an agency rule would be arbitrary and capricious if the agency has relied on facts which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citations and internal quotations omitted). This standard of review is deferential to the agency, and the Court is not entitled to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Nevertheless, while deferential, "courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Nat'l Labor Relations Bd. v. Brown, 380 U.S. 278, 290 (1965). See also McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004) (holding that the "Court will not defer to the agency's conclusory or unsupported assertions").

III. DISCUSSION

Although Plaintiffs assert claims for relief under numerous statutes, the Court need only reach their principal argument that Defendants should have, but did not, perform an environmental assessment or environmental impact statement pursuant to the National Environmental Policy Act. NEPA, the "basic national charter for protection of the environment," 40 C.F.R. § 1500.1(a), requires federal agencies to take a "hard look" at the environmental consequences of their projects before taking action. 42 U.S.C. § 4332(C); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989). NEPA "requires that agencies assess the environmental consequences of federal projects by following certain procedures during the decision-making process." City of Alexandria, Va. v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999).

NEPA has twin aims. "First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action." Baltimore Gas & Elec. Co. v. Natural. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (internal quotation omitted). "Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Id. Accordingly, NEPA's "mandate is essentially procedural." City of Alexandria, Va., 198 F.3d at 866 (internal quotation omitted); North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980) (explaining that NEPA requirements are essentially procedural and a court should not substitute its own policy judgment for that of the agency). "NEPA merely prohibits uninformed--rather than unwise--agency action." Robertson v. Methow Valley Citizen's Council, 490 U.S. 332, 351 (1989).

"The major 'action-forcing' provision of NEPA is the requirement that 'all agencies of the Federal government' prepare a detailed environmental analysis for 'major Federal actions significantly affecting the quality of the human environment.'" Found. on Econ. Trends v. Heckler, 756 F.2d 143, 146 (D.C. Cir. 1985) (quoting 42 U.S.C. ยง 4332(C); S. Rep. No. 91-296, 91st Cong., 1st Sess. 19 ...


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