natural resource versus the united states department of interior may please the court jonathan wood of the appellant kansas natural resource coalition into con of the supreme court held that under th subchapter in a provision addressing judicial review is ambiguous as to the review of agency action and can only be interpreted with reference to context and the strong presumption favoring just your view of agency action before we get to the rash congressional review act i have some questions on standing let's talk about injury in fact what's the injury in fact here so the injury is a procedural injury and i think that's the important place to start in this case you have two issues that the government doesn't address in its brief that we're strong in our favor the st is the procedural posture of this case this case is up on a motion to dismiss so the specific allegations st standing have to presume from our general allegations and we have raised a procedural violation case which is supreme court in lieu zhang and summers said has relaxed the standing requirements i think the closest analogy to this case is the d c circuits in our d c case which applied that rule to a petition under the a p a a party can generally petition for rule making and if the have no they weren't those cases that involved rights freedom of speech and  would affect its interest and the court held that in that in that context standing can't be denied simply because actually getting relief depends on whether the agency adopts the rule how it enforces it how it affects rd parties but the priest the procedural rule there was based on spokeo right and the idea was that it is to vindicate an individual's concrete interests this is a little different isn't it i don't think so the interest that can or see has in its conservation plan it's true it's not a st amendment interest but for standing i don't think that matters here the implementation of their plan is affected by the procedural violation how their plan will be revealed how how is that effected i mean in the complaint i don't see any allegations that there's anybody who refused to join or agree to your plan as a result of the fact that it hadn't been submitted under the c r a what what are the effects of the failure to have it approved under the c r a so that is true i think at the motions  kind of specific allegation has to be presumed from the general allegation all you've got to have general allegations from which you can presume a concrete injury and i don't see him in the complaint  sure and i'm happy to do so so the i pod is letting way from the microphone while talking so the allegations in the complaint are framed in terms of the peace rule the rule that we want to see submitted to congress and put into effect and the most of them are contained in paragraphs and i'm sorry for rifling through the papers for paragraphs forty two dollars forty three cents and they focus on the fact that if this rules in effect it will govern the review of conservation plan in a listing decisions the peace rule which we cite through throughout the complaint says that the burden is on the k n r c to establish that landowners will participate so we allege that that is made more difficult by the procedural violation and also if the rule is not in effect which i think this court has to presume for purposes of this appeal because of the procedural posture you have to assume in presume that the agency won't implement the peace rule the listing decision that will happen in approximately twelve months do we have an immediacy problem i don't then thing i don't think so because there are two it seems that you're relying on would have been could have and all of these things really could play out over a very long period of time think the st response is that's always true in a procedural injury case the petition example i gave you earlier the injury in the redress ability depended on many things that would happen in the future like whether the agency would ultimately adopt the rule and how to implement it here i think we have to immediate effects which is that recruiting landowners and counties more difficult can actually can't go to the ground if you didn't mean your allegations are actually to the contrary that everybody joined in this p c e n there's no allegations that there was even a single entity that said i'm not getting involved because this is uncertain whether it be and for all i disagree we do not allege that everyone is already participating so for we do say that there are land owners who have participated in conservation work and that is important to stress that that shows why our plan is viable but at this stage of the case the the allegations have to be interpreted in our favor presumptions have to be drawn in our favor but you also have the burden to prove stand that's true so it's not quite as clear as you're making but again i think the key point is that this is a procedural in every case where the standing burdens are relaxes from court has said our general allegations are framed in terms of our burden under the p e c which is we have to recruit landowners today the government seems to assume that we should be going to landowners and ignoring this legal problem we've discovered so right now as a legal matter the peace rule is not in effect and we don't think that we can why the counties or property owners and suggest otherwise when you say it's not in fact what do you mean light legally effect section eight hundred and one there's a difference between saying whether that violates is usually reviewable with what that means as a legal matter so the implication of our complaint in the alleging that this will has been submitted is that the peace rule is not yet la effect and if you as of course often do you assume the agency will follow the law going forward i think the implication the presumption would be that they won't apply the peace rule courts do it all the time they assume agencies will follow the law to rule against us i think that the law isn't that they can't impose they can't use i mean the laws they're supposed to consider any any plans or any ways in which the impact will be reduced and so there's nothing that would suggest that they would refuse to consider that p c eat plan well perhaps a misto with misspoke the law that i was referring to was the c r a under the c r a if a rule is not submitted to congress it is not lawfully in effect as a matter of law and we've provided all the allegations support that legal conclusion and if you accept that again for purposes of this stage of the case i think you i think i think that's that's where the case is and that's how the case comes to you it would be odd to deny us standing on the presumption that the agency will sometime in the future apply a rule that is not lawfully in effect and that's really what the government is arguing for parts it's brief it argues the general rule that agencies are presumed to follow the law but for this point on standing they take the opposite view they ask you to assume that in the future because they violated here in the past a couple of times they ask you to presume that they will do it again and i don't think that our standing here tonight based on that but the other point two points i'll add are that even if our complaint lacks the that level specific specificity that your daughter was asking about that is a the fact that that would mean that we should be allowed to amend henri man and given that the district court's decision on it off i would absolutely bar review anyway we would ask the court to reach that issue too so that every man would be would not be so now we get to talk about eight who five yes and the other reason why is going to turn there is that if you're on a road a few weeks going there nubile fuels association case the presumption  action also plays a role in standing courts don't interpret standing in a procedural case like this to bar all cart all parties from the courthouse door which is one of the reasons i said the supreme court has adopted a more relaxed view on standing in procedural violation cases like this one on on eight hundred and five i think the key case for us is cacouna there the court was confronted with a nother statute that the government initially claimed barges for review this chapter which is for all practical purposes the same and if you look if you apply the presumption we think that we we win because every factor this court has identified for applying that presumption favors us several provisions of the statute i'm sorry i don't mean to yeah under him and if you look at their use of under this act or the issue was whether you could look to regulations as well as the statute it was a very different on x then we have here would you agree with determination final action or omission so the question is whether we have an omission under this chapter in the effect to me it's pretty clear i don't think so and i don't think that's consistent with  cacouna because it's true that the language in the statute was different but the language the court looked at and found the ambiguity was under this subchapter it was under itself which the court said is inherently ambiguous and requires appeals to context and the presumption favoring just your view if the court apply that rule here or as i said every factor that the court will look at favors judicial review well if we were trying to decide whether  this was governed by the language in the statute in eighty dollars i or a regulation that was passed interpreted in eight o five i would agree with you that we look to kick in i don't think that's what we're dealing with here that's true but that would that would limit cacouna to its facts the analysis the court applied wasn't about the difference between a statute or regulation the court found the ambiguity in the phrase under the subchapter here the ambiguity i think is how broadly you interpret that phrase the exact same problem that was at issue in get you know we think the best reading and the one that i think confirmed by the other provisions of the tax as well as legislative history in several courts that have adopted this approach is that congress was shielding its own discretionary decisions about how to review a rule from just review this is the st time congress was inserting itself into the a p a process and it didn't want to extend the presumption favoring just review an capricious review to its own actions and that's what the sponsor said that's the narrow view the government takes the far broader view that undermine i'm really stop you there how much influence does legislative history have when it is entered into the record after the statute is passed and voted on by congress that's certainly a relevant factor the supreme court in wood said that it still has to be considered for persuasiveness but of course you're right that weaken the weight it gets but it still entitle to consideration for persuasiveness and the legislative branch courts the executive branch have all given that that statement affected in relied on it in interpret in the c r a and we would ask the court to do so here too and with that i have two more minutes left but although i like the reserve report to congress procedures in section eight hundred and one of the act when the fish and wildlife service adopted its two thousand and three policy or in addition there are two to a threshold grounds that this court could rule on and before getting to the meat of the congressional review act issue and i do want to know that i will especially demonstrate that the presumption of our views expressed a rebutted and overcome by the congressional review act including section eight hundred and five plaintext as well as the way of judicial authority but before i do that i do want to make a few comments on the on plaintiff's lack of standing this case arises in a highly peculiar posture the pla actually support the two thousand and three regulation and its substance but they claim to have found a legal defect that only they have identified no other plaintiff now with religion has ever challenged or identified to our knowledge the congressional review act as a bare barrier to implementing the two thousand and three policy but while that service plaintiff's claim based on this legal defect they've alleged and and found that there's legal uncertainty in and they unable to get enough members to join their conservation plan and that somehow down the line there's going to be a chain of events that occurs by which their plans will not be considered fully effective because of this  congressional review act reporting deficiency identify is that isn't that enough no a st of all it's self created uncertainty self inflicted harm to the only ones who ever identified this legal theory as a way of invalidate here saying they should just go along and say pretend that the rule is effective and proceed to attempt to get members to join in their cause it's all ok that's what is the rule is you would say the rule has some effect if not legal effect some effect we we have defenses on the merits i mean i'm not even getting into our defenses to effectiveness and we didn't present them in the district court but there are exceptions to the reporting requirements and i will just point them out your knowledge in  forty three see an agency rule procedure a practice that does not substantially affect the rights or obligations of non agency parties doesn't have to be reported to congress it's still a war under the a p a but it's an exception here at the end of the federal register notice for the two thousand and three rule the fish wildlife service did a whole regulatory flexibility analysis and concluded that it the the policy does not substantially affect small business entities or create economic effects greater than whatever the threshold is under the regulatory flexibility act which is you know my friend aside and they're pretty for their judicial review provision under that statute but i just want to preview that as a potential way that of the litigation in terms of pleading to conclude that they have standing do you agree with and it's a later burden i would point the court to the th circuit's recent decision in the center for biological diversity case that court a lso rejected a that was a constitutional challenge that they rejected on lack of standing grounds they rejected one of several constitutional challenges to an action that an agency had taken to withdraw our wall after congress had actually disapproved it under the congressional review act and as far as the challenge that was brought under the non delegation theory the th circuit said plaintiffs lack standing there because there is a conjectural chain of events that has yet to occur and it's too speculative to support standing that too was a motion to dismiss that too would be subject to the same factual standards here and i think the complaint is is conflicting on on what they allege about the that would be necessary to embrace the facts of any injury on believe it's pages eighteen dollars to nineteen dollars of the appendix paragraphs thirty three dollars thirty cents of the complaint they allege that the plan is going along and actually having a fax it says on page eighteen in the five years since the plan was developed the species population is nearly doubled and then on page nineteen at the bottom it says the endangered species act itself requires efforts by conservation efforts by states and localities to be taken into account that's under sixteen united states code section  regardless of and regardless of whether the policy is actually in effect the statute itself requires the service to take into account the types of plans that the plaintiffs have developed its policy that gives the framework for the fish to get more deference from the courts when it evaluates whether a plan that has not yet been implemented or not yet proven to be effective nonetheless is likely in the future to ameliorate its concerns about species but  that policy provides an extra layer of deference when the fork when the fish and wildlife service follows it but it's not the the core statutory requirement still underlies the dispute here and still would require the service to take into account  so you're basically saying they're not harmed they have no alleged facts demonstrating that they are harmed one more thing about this policy that may be worth thinking about is that it is intended to apply to conservation plans that have yet to be fifteen that's you know seven years that the plan now has been in existence there may be changed facts on a record in a future case whereby the policy might not need to be applied in the same way because there limitations argument that they should have brought their action back in twenty four team when it was apparent plan was not submitted under the c r a that they could have brought up much earlier than but it's similar you know there are similar facts involved i think i was trying to emphasize for standing the speculative chain of events that would have to occur for them actually to suffer injury and although they say the standards for injury are excused me they say the standards for standing are relaxed because of the procedural allegation they allege that's i believe only true for addressability in causation they still have to allege a concrete injury that affects their concrete interest despite the procedural violation it's not enough after summers for example for them just to say well the procedures weren't followed or injured because of that they have to say their actual interests were affected so i would like to turn briefly to the section eight o five issue the district court got this correct and the presumption of review ability here that agency actions her are afforded is rebutted and over com both by the plaintext section eight o five as well as the purpose well let me ask you this if if we say yes the plane acts as we lack jurisdiction to review whether an agency submit a new rule for review to congress how do you mean doesn't that completely undermine the purpose of the c r a i don't think so because the c r a was about the relationship between congress and the executive branch the courts and you know there is a presumption of review ability but if congress wanted to create a private right about action specifically for citizens who allege that agencies have not submitted these fairness act that they initially in one thousand nine hundred and eighty when they passed the statute provided a more broader judicial review provision but then when that was found to be a been abused by the agencies congress went in and  and provided more detail about the rights that are afforded to litigants to allege those types of claims certainly do so don't we have a provision in the c r a that talks about severability yes how are we to interpret that isn't that include  assumption at least that courts can be involved for constitutional challenges i think that's that's already that is now you would narrow it and that's how our listeners will challenge is all well i think that that's supported by what the th circuit did at the end of december in the center for biological diversity case the case came in after briefing but we submitted a twenty inch of water and there were actual constitutional challenges there and the th circuit found them reviewable found that there's a heightened standard against well under web webster against jo that congress is held to if it is going to exclude constitutional challenges the c r a does not satisfy that standard in the th circuit therefore held that the constitutional claims were reviewable but then went on to hold that the  and i do think that what it did the practical implication of no review for failure to submit a rule is there is no incentive whatsoever on any agency to submit a rule for review right i don't think that's right i mean congress has we got wind of this in our brief about all the different powers congress has through controlling appropriations to put the pinch on agencies if they are following the rules that congress disagrees with and congress in the context of the endangered species act i mean i think the gray walls appropriations rider is instructive i think the greater sage grouse appropriations riders are very instructive here when congress  becomes aware of a rule under the endangered species act that it disagrees with it has not hesitated to act it has not hesitated to direct for example the service not to finalize a rule that says that it's as proposed and is working on and when courts reach conclusions about proposed with trawls of listing decisions congress has overridden at least one of those decisions in the grey wolf appropriations rider so congress does have tools to enforce what it believes is the proper view of endangered species act rules despite a failure to report i would emphasize that this two thousand and three policy is a little bit different than the typical yes a listing rule in that it is not directly regulating the plaintiffs here it is not it actually benefits them and it benefits them in a secondary way it's principally about the procedures that the fish and wildlife service follows and taking into account plans like the one that the plaintiffs developed here and so alternately it it helps them but even if it were a regulatory rule the concerns that i think some of the regular ta regulated community may have about failures to report rules are taken care of in a large part by executive orders that the president has issued in october of last year we didn't cite these in our in our brief but there is an executive order addressing agency guidance its executive order thirteen thousand eight hundred and ninety one this isn't critical to our argument but i think it illustrates that that there are purposes here that are that are being addressed by they check branch and that  that should ameliorate any concerns that congress have has about failures to report that executive order requires agency guidance to go through a process of in some cases reviewed by the office of management and budget which incidentally this two thousand and three was what was action is the issue here for the plaintiffs that they are not being consulted or involved in this listing and management of prairie chickens is that is that at the core of this local control versus federal government i think it does have to do with local control they prevailed on claims that the service did not adequately consider their plans and they got the relief that favored them so in that sense i struggle to understand how what how we might articulate injury that they're claiming but i think it has to do with how much control reduce retained by the localities versus the federal government maybe they're seeking more certainty more certainty and sure control so i think that's fair and as are all regulated entities but you know we point out in the rightness context the supreme court in the national parks hospitality cases said can i want to respond to two points made my friend on the other side the st is that this congressional the peace rule is not only about the services interests or internal it also protects regulated parties like counties and local property owners and if the rule is if the agency submits the rule and it goes into effect that means it's also enforceable against the agency i think the previous case in two thousand and fourteen the government points to is important there are a regulated party use the peace rule that the agency hadn't followed in order to get a good outcome now that we've discovered this rule is not lawfully in effect i don't think we could do that again so we have a listing coming up in a year if the agency doesn't follow the piece rule the government's position seems to be that we should go to court say that they didn't follow rule that is not lawfully in effect since it wasn't submitted to congress and we would somehow prevail again and i don't see how that can work if the allegations in a complaint are taken  as they must at this stage that will is not lawfully in effect submitting it would give us all the relief we've requested it would cause no particular burden to the agency they admit that it is a relatively small inconvenience for them to send the paperwork over to requiring the agency to act in a certain way yes on the legal issues those cases are essentially the same the motions to dismiss are essentially the same the court held that it's judicially reviewable and within a matter of months the agencies had submitted their rules  our next case for argument