United States District Court, D. Columbia.
For UNITED STATES ASSOCIATION OF REPTILE KEEPERS, INC., BENJAMIN RENICK, MATTHEW EDMONDS, RAUL EDUARDO DIAZ, JR, CAROLINE SEITZ, Plaintiffs: Paul Charles Rosenthal, LEAD ATTORNEY, KELLEY DRYE & WARREN, LLP, Washington, DC; Shaun Michael Gehan, LEAD ATTORNEY, LAW OFFICE OF SHAUN M. GEHAN, PLLC, Washington, DC; David Earl Frulla, KELLEY, DRYE & WARREN, LLP, Washington, DC.
For SALLY JEWELL, The Honorable, in her official capacity as the Secretary of the Interior, U.S. FISH AND WILDLIFE SERVICE, Defendants: Clare Marie Boronow, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; Meredith L. Flax, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington, DC.
For HUMANE SOCIETY OF THE UNITED STATES, Amicus: Anna E.J. Frostic, LEAD ATTORNEY, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.
For CENTER FOR INVASIVE SPECIES PREVENTION, NATURAL AREAS ASSOCIATION, WILDLIFE SOCIETY, Amicus: Peter T. Jenkins, LEAD ATTORNEY, Center for Food Safety, Washington, DC.
RANDOLPH D. MOSS, United States District Judge.
The Department of the Interior undeniably has the authority to prohibit the importation of species of wild animals deemed by the Congress or the Department to be injurious to human beings, agriculture, horticulture, forestry or other wildlife. This case presents the question whether Congress has also authorized the Interior Department to ban the interstate transportation of these " injurious species." The case addresses, in particular, whether the Department acted within its authority when it issued regulations purporting to prohibit the interstate transportation of certain species of large constricting snakes, including the reticulated python, which can grow to over 20 feet in length, and the green anaconda, which is almost certainly the heaviest snake in the world. Ultimately, however, the scope of the Interior Department's authority to regulate the interstate transportation of " injurious species" depends on the history of the zebra mussel, which is a mollusk about the size of a quarter, and the bighead carp, which is a freshwater fish with a voracious appetite. For the reasons explained below, Defendants have failed to establish at this point in the litigation that this history is sufficient to confer an authority on the Department that Congress did not confer when it enacted the controlling statutory text.
Before the Court is Plaintiffs' motion for a preliminary injunction (Dkt. 28). Plaintiffs seek an order enjoining the Secretary of the Interior, Sally Jewell, and the U.S. Fish and Wildlife Service (collectively, " Defendants" ) from implementing the final rule promulgated on March 10, 2015, which adds four species of constricting snakes to the list of injurious species under the Lacey Act, 18 U.S.C. § 42. A hearing on the motion was held on April 7, 2015, and, upon consideration of the parties' arguments and submissions, and for the reasons explained below, the motion is GRANTED in part and a preliminary injunction will issue. In light of the requirement that injunctive relief be " narrowly tailored to remedy the specific harm shown," Neb. Dep't of Health & Human Servs. v. Dep't of Health & Human Servs., 435 F.3d 326, 330, 369 U.S.App.D.C. 214 (D.C. Cir. 2006), the parties are ORDERED to submit supplemental briefs on the proper scope of the injunction and whether a brief stay is appropriate. The parties are further ORDERED to appear for a status conference on May 18, 2015 at 10:00 AM to address the scope of the injunction. The Court will issue a preliminary injunction after hearing from the parties regarding its proper scope.
This action challenges rules promulgated by the Department of the Interior (" Department" ) that prohibit the importation and interstate transportation of certain species of constricting snakes. In 2010, the Department proposed a rule listing nine constricting snake species as " injurious" under the Lacey Act, 18 U.S.C. § 42. See 75 Fed.Reg. 11808 (March 12, 2010). When the Secretary of the Interior designates a species as " injurious to human beings, . . . agriculture, horticulture, forestry, or . . . wildlife or the wildlife resources of the United States," the Lacey Act prohibits " importation" of that species " into the United States, any territory of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States." 18 U.S.C. § 42(a)(1). It also prohibits " any shipment" of the species " between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States." Id.
On January 23, 2012, after a notice and comment period, the Department issued a final rule listing four of the nine species as " injurious." 77 Fed.Reg. 3330 (Jan. 23, 2012) (the " 2012 Rule" ). The rule prohibited " the importation into the United States and interstate transportation between States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States of any live animal, gamete, viable egg, or hybrid" of those four snakes. Id.
The United States Association of Reptile Keepers (" USARK" ) filed this lawsuit on December 18, 2013. On May 9, 2014, with leave of the Court, USARK filed an amended complaint alleging (1) that the ban on interstate transportation of listed species in the 2012 Rule exceeded the Interior Department's powers under the Lacey Act (Dkt. 21 ¶ ¶ 78-84); (2) that the 2012 Rule failed to comply with the requirements of the National Environmental Policy Act (" NEPA" ) (Dkt. 21 ¶ ¶ 85-94); and (3) that in promulgating the 2012 Rule the Department of the Interior abused its discretion and acted arbitrarily and capriciously (Dkt. 21 ¶ ¶ 95-97). Defendants moved to dismiss the amended complaint (Dkt. 22).
On March 10, 2015, the Interior Department promulgated another final rule listing four additional constricting snake species--the reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda--as " injurious." 80 Fed.Reg. 12702 (Mar. 10, 2015) (the " 2015 Rule" ). Like the 2012 Rule, the 2015 Rule prohibited both " importation" and " interstate transportation between States" of the newly listed species. Id. It explained that two of the listed species--the reticulated python and the green anaconda--were among the " largest snakes in the world" ; that both were already " present in U.S. trade" ; and that examples of both " ha[d] been found in the wild in south Florida." Id. at 12704. The Department was chastened by its experience with the Burmese python, which it cited as an " example of a species that may not have become so invasive in Florida if it had been listed before it had become established." Id. And it noted that the listed snakes were " highly likely to prey on U.S. native species" and, if introduced into the wild, would rank among the most powerful predators in North America. Id. at 12713 (reticulated python); see id. at 12716-17 (green anaconda). The 2015 Rule took effect on April 9, 2015--30 days after the final rule was published.
USARK moved for leave to file a Second Amended Complaint on March 23, 2015. Dkt. 27. The Second Amended Complaint challenges both the 2012 and 2015 Rules. In addition to the arguments raised in the First Amended Complaint, it alleges that the Rules' prohibition on interstate transportation of listed snakes impermissibly burdens snake owners' constitutional right to travel (Dkt. 38 ¶ ¶ 109-117) and that the Interior Department failed to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. (Dkt. 27-1 ¶ ¶ 131-135). The Second Amended Complaint also adds four individual plaintiffs, all of whom allege that they will be harmed by one or both of the challenged Rules. Dkt. 38 ¶ ¶ 13-16. The Court granted the motion for leave to amend on April 8, 2015. Dkt. 37.
On April 1, 2015, Plaintiffs filed an Application for Temporary Restraining Order. Dkt. 28 (" TRO Application" ). The TRO Application sought to enjoin implementation of the 2015 Rule. Plaintiffs argued that they are likely to prevail on the merits based on their statutory construction and Regulatory Flexibility Act arguments. They further argued that the individual plaintiffs and members of USARK will suffer irreparable harm if the 2015 Rule takes effect. The TRO Application addressed only the reticulated python and green anaconda; Plaintiffs acknowledge that " [t]he other two species" listed in the 2015 Rule, " the Beni and DeSchauensee's anaconda, are not even found in the United States, in trade or otherwise." Id. at 4. Thus, Plaintiffs have not requested that the Court enjoin application of the 2015 Rule as to those snakes (and it is unlikely Plaintiffs would have standing to do so). After briefing on the TRO Application, the Court held a hearing on the application. At the hearing, the parties agreed the TRO Application could be treated as a motion for a preliminary injunction; accordingly, the Court denied the request for immediate relief and ordered the parties to submit supplemental briefing on a number of issues. See Dkt. 37; Dkts. 44, 45, 48, 49. The motion for a preliminary injunction is now before the Court.
To prevail on a motion for a preliminary injunction, the party seeking relief must show " (1) a substantial likelihood of success on the merits; (2) that the moving party would suffer irreparable injury if the relief were not granted; (3) that the balance of equities tips in the movant's favor; and (4) that an injunction is in the public interest." EDF Res. Capital, Inc. v. U.S. Small Bus. Admin., 910 F.Supp.2d 280, 283 (citing Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297, 372 U.S.App.D.C. 94 (D.C. Cir. 2006)). The Court of Appeals for this Circuit long evaluated these factors on a " sliding scale." E.g., Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 360-61, 334 U.S.App.D.C. 228 (D.C. Cir. 1999). It has recently read the Supreme Court's decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), however, " at least to suggest if not to hold" that plaintiffs face " a more demanding burden" under which " a likelihood of success is an independent, freestanding requirement for a preliminary injunction," Sherley v. Sebelius, 644 F.3d 388, 392-93, 396 U.S.App.D.C. 1 (D.C. Cir. 2011) (quotation marks omitted). This issue remains the subject of some uncertainty in this Circuit. See Am. Meat Inst. v. U.S. Dep't of Agric., 746 F.3d 1065, 1074, 409 U.S.App.D.C. 96 (D.C. Cir. 2014), reinstated in relevant part by 760 F.3d 18, 411 U.S.App.D.C. 318 (D.C. Cir. 2014) (en banc) (" [t]his circuit has repeatedly declined to take sides . . . on the question of whether likelihood of success on the merits is a freestanding threshold requirement to issuance of a preliminary injunction" ). Nonetheless, it is clear that the plaintiff's likelihood of success on the merits is a " key issue [and] often the dispositive one" at the preliminary injunction stage. Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep't of Hous. & Urban Dev., 639 F.3d 1078, 1083, 395 U.S.App.D.C. 67 (D.C. Cir. 2011). At a minimum, where movants make " a weak showing on the first factor," they need " to show that all three of the other factors so much favor the [movants] that they need only have raised a serious legal question on the merits." Am. Meat Inst., 746 F.3d at 1074 (quotation marks omitted).
I. Likelihood of Success on the Merits
Plaintiffs rely on their statutory construction and Regulatory Flexibility Act claims in their attempt to show that they are likely to succeed on the merits. Because the Court concludes that there is a substantial likelihood that Plaintiffs will prevail on their statutory construction claim, Plaintiffs have satisfied this prong of the preliminary injunction test.
A. Plaintiffs' Statutory Construction Claim
The crux of Plaintiffs' statutory construction claim is their contention that, with the exception of Hawaii, the Lacey Act does not prohibit interstate shipment of species listed as " injurious" by the Department of the Interior. Defendants dispute this contention, and further argue that Plaintiffs' claim is barred by the applicable statute of limitations.
1. The Statute of Limitations
Defendants argue, as a threshold matter, that the Court lacks jurisdiction to review Plaintiffs' statutory construction claim because that claim is time-barred under the six-year statute of limitations in 28 U.S.C. § 2401(a). They claim that, although the preamble to the 2015 Rule states that the Rule's effect is to prohibit interstate transport of the four listed species, the prohibition actually stems from the Interior Department's 1965 Lacey Act regulations (50 C.F.R. § 16.3; the " 1965 Regulations" ). They reason that because the 1965 Regulations prohibited interstate transportation of listed species, and the 2015 Rule simply listed the four species at issue here, any claim challenging the prohibition on interstate transportation of listed species accrued in 1965 and must have been brought before 1971.
This argument has a serious flaw. The 1965 Regulations do not " interpret" the Lacey Act's language governing transportation of listed species within the territory of the United States; they simply copy the relevant language. Compare 50 C.F.R. § 16.3 (" the transportation of live wildlife or eggs thereof between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any territory or possession of the United States by any means whatsoever, is prohibited . . ." ) with 18 U.S.C. § 42(a)(1) (" any shipment between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States . . . is hereby prohibited" ). Plaintiffs' claim challenging Defendants' interpretation of the Lacey Act cannot have accrued when the Department promulgated regulations merely repeating the relevant language of the statute.
As a fallback position, Defendants argue that Plaintiffs' claim accrued either when the Department first interpreted the Lacey Act to bar interstate transportation of a listed species (1989) or when the Fish and Wildlife Service first issued a rule purporting to bar interstate transportation of a reptile species (1990)--ostensibly the first point at which USARK might have had organizational standing to challenge the rule. See 54 Fed.Reg. 22286, 22,287 (May 23, 1989); 55 Fed.Reg. 17439, 17440 (Apr. 25, 1990).
Defendants offer no convincing reason to treat these prior rules, rather than the 2012 and 2015 Rules, as the agency actions triggering the running of the limitation period under § 2401. The limitation period under § 2401 begins to run on the date of the " final agency action," Harris v. FAA, 353 F.3d 1006, 1010, 359 U.S.App.D.C. 281 (D.C. Cir. 2004), which the Court of Appeals defines as " one by which rights or obligations have been determined or from which legal consequences will flow," Mendoza v. Perez, 754 F.3d 1002, 1018, 410 U.S.App.D.C. 210 (D.C. Cir. 2014) (quotation marks omitted). " [A]n agency's renewal of an earlier decision [that] does not alter the status quo," however, will not " restart the statute of limitations." Mendoza, 754 F.3d at 1018. The question, then, is whether the 2012 and 2015 Rules were final agency actions that altered the status quo. Plainly, they were. The Rules determined the rights of persons in the United States to transport animals of the listed species domestically and internationally, and the restrictions they imposed did not exist before the final Rules took effect. A plaintiff who could lawfully transport reticulated pythons or green anacondas across state lines in 2009 now cannot do so. The agency's actions that made that so triggered the start of the six-year limitation period here. See id. at 1019 (holding that regulations that had " long existed" as to shepherds and goatherds re-started the limitation period when they were extended to reach cattle herders).
Moreover, if a rule targeting a different species could start the limitation period under these circumstances, the Interior Department could easily avoid facial review of new statutory interpretations. The Department could simply announce a new interpretation with respect to a listed species not present in the United States (like, for example, the Beni or DeSchauensee's anacondas), allow the six-year limitation period to run, and then promulgate new rules applying that interpretation to far more popular species. There is no suggestion, of course, that the Department has intentionally pursued such a strategy here, but the effect of its limitation argument is to cut off a presumptively available avenue for judicial review. See Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (" judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress" ). Nothing in the language of § 2401 compels the conclusion that Congress intended to bar facial challenges to rules that extend previous agency interpretations to reach new spheres of previously unregulated activity.
Finally, the Court notes that even were Defendants correct that the final agency action establishing the Interior Department's interpretation of the relevant statutory language took place more than six years before Plaintiffs brought suit, the Department's subsequent actions would render this lawsuit timely because the Department re-opened the issue. " [A]n agency has reopened a previously decided issue in a case where the agency (1) proposed to make some change in its rules or policies, (2) called for comments only on new or changed provisions, but at the same time (3) explained the unchanged, republished portions, and (4) responded to at least one comment aimed at the previously decided issue." Public Citizen v. NRC, 901 F.2d 147, 150, 284 U.S.App.D.C. 41 (D.C. Cir. 1990). Here, the Department clearly " proposed to make some change in its rules or policies" when it issued its proposed rule in 2010. See 75 Fed.Reg. 11808 (Mar 12, 2010). The proposed rule " called for comments" on the listing of constrictor species under the Lacey Act. See id. at 11811. It " explained the unchanged" interpretation of the Lacey Act that Plaintiffs now challenge. See id. at 11808 (" The proposed rule, if made final, would also prohibit any interstate transportation of live snakes, gametes, viable eggs, or hybrids of the nine species currently held in the United States." ). And the Department " responded to at least one comment aimed at" that issue. 80 Fed.Reg. 12702, 12732 (Mar. 10, 2015) (" Comment: . . . The Service lacks the authority to restrict interstate transportation and commerce of a listed species between and among continental States. Our response: The Service interprets the Lacey Act as giving us the authority to restrict transportation between any of the States, territories, and other jurisdictions (the District of Columbia) of the United States. We believe that this interpretation is consistent with the language and intent of the statute." ).
Because the final agency action at issue was the promulgation of the 2015 Rule, and, in any event, that Rule re-opened the question whether the Department's interpretation of the relevant Lacey Act provision is correct, this suit was timely filed.
2. Interpretation of the Lacey Act
Plaintiffs allege that, by prohibiting interstate transportation of listed snakes, the 2012 and 2015 Rules exceed the authority granted to the Secretary under the Lacey Act. The relevant statutory language states:
The importation into the United States, any territory of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States, or any shipment between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States, of [certain enumerated species] and such other species of wild mammals, wild birds, fish (including mollusks and crustacea), amphibians, reptiles, brown tree snakes, or the offspring or eggs of any of the foregoing which the Secretary of the Interior may prescribe by regulation to be injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States, is hereby prohibited.
18 U.S.C. § 42(a)(1) (emphasis added). Plaintiffs argue that the phrase " any shipment between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States" does not encompass transportation of listed species between two states within the " continental United States" --thus, in their view, the Interior Department lacked authority to prohibit all interstate transportation of the four species at issue in the 2015 Rule. Plaintiffs contend that the language and legislative history of the 1960 amendments unambiguously show that Congress " expressly intended to limit" transportation of listed species " only between all forty-nine continental states as a singular entity and the other listed jurisdictions (or between those jurisdictions), not within or between the continental states." Dkt. 28-1 at 20.
In response, Defendants argue that the Interior Department interpretation is compelled by the plain language of the statute and bolstered by subsequent congressional actions, and, in the alternative, that it is entitled to deference under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
a. Chevron U.S.A. v. Natural Resources Defense Council
Under the framework set out in Chevron, a court reviewing an agency's interpretation of a statute first asks " whether Congress has directly spoken to the precise question at issue." 467 U.S. at 842. " If the intent of Congress is clear, that is the end of the matter." Id. However, if " Congress has not directly addressed the precise question at issue . . . the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. The principle in Chevron is " rooted in a background presumption . . . 'that Congress, when it left ambiguity in a statute' administered by an agency, 'understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.'" City of Arlington, Tex. v. FCC, 133 S.Ct. 1863, 1868, 185 L.Ed.2d 941 (2013) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996)).
There is significant reason to doubt, however, whether Chevron applies in this context. The Lacey Act is a criminal statute, see 18 U.S.C. § 42(b) (" Whoever violates this section, or any regulation issued pursuant thereto, shall be fined under this title or imprisoned not more than six months, or both." ), and the Supreme Court recently observed that it " ha[s] never held that the Government's reading of a criminal statute is entitled to any deference," United States v. Apel, 134 S.Ct. 1144, 1151, 188 L.Ed.2d 75 (2014). Instead, " [w]hether the Government interprets a criminal statute too broadly . . . or too narrowly . . . a court has an obligation to correct its error." Abramski v. United States, 134 S.Ct. 2259, 2274, 189 L.Ed.2d 262 (2014) (" We think [the agency's] old position is no more relevant than its current one--which is to say, not relevant at all." ). This principle is particularly important where, as here, the government advances an " expansive view" of the scope of activities that will subject citizens to criminal penalties. Whitman v. United States, 135 S.Ct. 352, 353, 190 L.Ed.2d 381 (2014) (Scalia, J., respecting the denial of certiorari). Deferring to such a view would " upend ordinary principles of interpretation," including the " rule of lenity[, ...