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Save Lake Superior Assoc. et al. v. Napolitano et al.: US District Court : ENVIRONMENTAL | CIVIL PROCEDURE - not acting isn't acting ultra vires; soverign immty; speculation, not imminent harm, so no standing

1 Successors in office at the Department of Homeland Security
and the United States Department of Agriculture are automatically
substituted pursuant to Fed. R. Civ. P. 25(d).
Save Lake Superior Association )
et al. )
v. )
Janet Napolitano, Secretary of the )
U.S. Department of Homeland )
Security and the U.S. Department )
of Homeland Security; Admiral )
Thad W. Allen, Commandant of the )
United States Coast Guard and the )
U.S. Coast Guard; Tom Vilsack, )
Secretary of the U.S. Department )
of Agriculture and the U.S. )
Department of Agriculture; Cindy )
Smith, Administrator of the Animal )
and Plant Health Inspection )
Service; and the Animal and Plant )
Health Inspection Service1 )
Plaintiffs ask the Court to dive into a prophylactic effort to
protect Lake Superior. Defendants deny the Court is presently
empowered to do so. They are correct. Defendants motion to
dismiss is granted.
I. Background
Plaintiffs are four environmental organizations. They believe
the fish of Lake Superior may be vulnerable to the deadly viral
hemorrhagic septicemia virus (VHSV). So far as is known to
either the Court or the parties, the virus is not present in Lake
2 Defendants also argued plaintiffs failed to effect proper
service on the Attorney General, requiring dismissal for lack of
personal jurisdiction. In response, plaintiffs submitted evidence
that the Attorney General was properly served. Defendants did not
address this argument in their reply brief. The Court deems this
argument abandoned.
On April 29, 2008, plaintiffs sued officials and agencies of
the United States, including the Department of Homeland Security
and its Secretary, the United States Coast Guard and its
Commandant, the United States Department of Agriculture and its
Secretary, and the Animal and Plant Health Inspection Service
(APHIS) and its Administrator. Their complaint seeks declaratory
and injunctive relief, ordering defendants to enforce and implement
certain federal environmental statutes and regulations.
Defendants move to dismiss the complaint for lack of subject
matter jurisdiction, pursuant to Rules 12(b)(1) and 12(h) of the
Federal Rules of Civil Procedure (Fed. R. Civ. P.). They also
deny plaintiffs possess standing to bring this case.2
II. Analysis
A. Subject Matter Jurisdiction
The Court always begins by examining its jurisdiction, because
[f]ederal courts are courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute, and [i]t
is to be presumed that a cause lies outside this limited
jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994). Accordingly, plaintiffs, having asserted the Courts
jurisdiction, bear the burden of establishing it. Id. Defendants
deny Congress has authorized these claims, leaving the Court
without jurisdiction.
1. Mandamus and Declaratory Judgment Claims
In Count I, the complaint asserts the Coast Guard and APHIS
have failed to enforce federal regulations and orders, in
violation of the Minnesota Environmental Rights Act, Minn. Stat.
116B.01 et seq. (MERA). (Compl. 31.) Plaintiffs suggest
subject matter jurisdiction is conferred by federal statutes
governing mandamus and declaratory judgment. (Compl. 6.) A
glance at the mandamus statute might suggest it does so. See 28
U.S.C. 1361. The same cannot be said for the declaratory
judgment statute. See 28 U.S.C. 2201-2202; Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950).
But a cursory glance does not suffice; in a suit against the
sovereign, more is needed. It is axiomatic that the United States
may not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction. United States v.
Mitchell, 463 U.S. 206, 212 (1983). In order to maintain a suit
against the United States, a court must find a waiver of sovereign
immunity unequivocally expressed in statutory text, and its scope
must be strictly construed in favor of the sovereign. Lane v.
Pena, 518 U.S. 187, 192 (1996).
3So named for the case of Dugan v. Rank, 372 U.S. 609, 621-22
(1963). See Al-Jabari v. Chertoff, 536 F. Supp. 2d 1029, 1033 (D.
Minn. 2008) (Schiltz, J.).
Here, plaintiffs face an insurmountable hurdle. Neither the
mandamus statute nor the declaratory judgment statute waives
sovereign immunity. Essex v. Vinal, 499 F.2d 226, 231-32 (8th Cir.
1974); Skelly Oil Co., id. Plaintiffs do not claim Congress agrees
MERA, a Minnesota statute, has conferred power to sue federal
departments and agencies. They argue, instead, the Republic cannot
resort to sovereign immunity, because - as they claim the United
States has failed to enforce the law - defendants are acting ultra
vires. (Pl. Mem. at 8-10.) Plaintiffs attempt to support this
proposition by advancing the cases of Larson v. Domestic & Foreign
Commerce Corporation, 337 U.S. 682, 689 (1949), and State of
Minnesota v. Callaway, 401 F. Supp. 524, 528 (D. Minn. 1975),
reversed in part by State of Minnesota v. Hoffman, 543 F.2d 1198,
1209 (8th Cir. 1976). Plaintiffs reliance on these cases is
In Larson, the Supreme Court found a suit barred by sovereign
immunity when the United States had not assented to the action.
Larson, 337 U.S. at 689. But in what has become known as the
Larson-Dugan exception3 to sovereign immunity, the Supreme Court
also recognized that:
[W]here the officers powers are limited by statute, his
actions beyond those limitations are considered
individual and not sovereign actions. The officer is not
doing the business which the sovereign has empowered him
to do or he is doing it in a way which the sovereign has
forbidden. His actions are ultra vires his authority and
therefore may be made the object of specific relief.
Id. This carefully-crafted exception does not complete the
inquiry, however, because the Court was explicit: relief can be
granted, without impleading the sovereign, only because of the
officers lack of delegated power. A claim of error in the
exercise of that power is therefore not sufficient. Id. at 690.
Therefore, the Court added, in order to support an ultra vires
claim, it is necessary that the plaintiff set out in his complaint
the statutory limitation on which he relies. Id.
Such a claim was made in this District in Callaway. There,
plaintiffs argued the federal Clean Water Act obliged the Army
Corps of Engineers to comply with Minnesota environmental
regulations when dredging the Mississippi River. Plaintiffs,
there, identified the federal statute - the Clean Water Act - they
claimed mandated the Corps actions, and specified the statutory
sections claimed to limit its power. Their claim found support in
the Clean Water Acts legislative history, where Congress intended
to waive sovereign immunity. See Callaway, 401 F. Supp. at 528.
In that case, the district court found plaintiffs had sufficiently
alleged ultra vires acts, and held sovereign immunity did not bar
the suit. Id. Even with all this support, the Eighth Circuit
4 The Court of Appeals did not address Callaways procedural
issues, including the sovereign immunity question. It reversed the
district courts holding that the Clean Water Act required the
Corps of Engineers to obtain a Minnesota state dredging permit.
543 F.2d at 1209.
The case at bar is not as strong as Callaway. Plaintiffs
offer no federal statute which hints defendants are required to
comply with MERA. In the present case, defendants are not acting,
they are in repose. Indeed, plaintiffs claim defendants inaction
is the reason for their case. This contrasts with Callaway, where
the Corps was dredging, and plaintiffs claimed they were doing so
without permission. As such, this case lacks any suggestion
defendants are taking affirmative actions exceeding their mandate.
This is not a claim of defendants acting beyond their power;
rather, it is a claim they have erred in its exercise. Such a
claim is barred by sovereign immunity.
Absent a waiver of sovereign immunity within the text of a
federal statute, this Court cannot exercise jurisdiction over Count
Is subject matter. Plaintiffs claims premised on violations of
MERA are dismissed.
2. Administrative Procedure Act Claims
Counts II and III allege the Coast Guard and APHIS,
respectively, have arbitrarily and capriciously refused to enforce
their own rules. According to plaintiffs, the Administrative
Procedure Act, 5 U.S.C. 706 (APA), provides subject matter
5 Plaintiffs correctly argue - involving agency action cases -
there is a strong presumption the action is reviewable. Heckler,
470 U.S. at 826. But in refusal[] to take enforcement steps, the
presumption is reversed. See id. at 831. See also Greer v. Chao,
492 F.3d 962, 964 (8th Cir. 2007).
The APA is a limited waiver of sovereign immunity, which
permits judicial review of an agencys actions or failures to act.
5 U.S.C. 551(13), 706(2). Under the APA, the reviewing court
shall compel agency action unlawfully withheld or unreasonably
delayed. 5 U.S.C. 706(1). The Act, however, contains an
exception: a court may not review agency action committed to
agency discretion by law. 5 U.S.C. 701(a)(2). The agency
actions - or inactions - of which plaintiffs complain fall squarely
within the exception.
An agencys decision to take, or not to take, enforcement
action is based on a complicated balancing of factors falling
within the agencys expertise. See Heckler v. Chaney, 470 U.S.
821, 831-32 (1985). The Supreme Court recognized an agency
generally cannot act against each technical violation of the
statute it is charged with enforcing. Id. at 831. Therefore,
unless Congress sets standards directing the agencys discretion,
its decision against enforcement in a particular situation is
presumed unreviewable under the APA. Id. at 832-33.5
Under Supreme Court precedents, a plaintiff seeking to rebut
the presumption must identify specific statutory language
circumscribing the agencys discretion. If Congress has:
indicated an intent to circumscribe agency enforcement
discretion, and has provided meaningful standards
defining the limits of that discretion, there is law to
apply . . . and courts may require that the agency
follow that law.
Id. at 834-35. But absent such Congressionally expressed intent,
an agencys refusal to act is a decision committed to agency
discretion by law. Id. at 835.
a. The Coast Guard
Plaintiffs challenge a Coast Guard regulation requiring that
ships minimize or avoid uptake of ballast water in areas known
to have infestations or populations of harmful organisms. 33
C.F.R. 151.2035(a)(2)(i). In plaintiffs view, this language
plainly means ships are prohibited from taking on ballast water
from the eight Great Lake States. (Pl. Mem. at 6.) The Coast
Guard disagrees. The APA, however, only permits the Court to
review the Coast Guards interpretation if a federal statute
restricts the Coast Guards enforcement discretion. Plaintiffs run
into rocky shoals at this point.
The complaint identifies no statutory language limiting the
Coast Guards discretion. Plaintiffs memorandum asks the Court to
find limiting language in the National Invasive Species Act of 1996
(NISA), which reauthorized the Nonindigenous Aquatic Nuisance
Prevention and Control Act (NANPCA). (See Pl. Mem. at 17, citing
16 U.S.C. 4701-4751.)
6 Similarly, Subsection 4711(g), not cited by plaintiffs,
provides for civil and criminal penalties in the event of
regulatory violations. 16 U.S.C. 4711(g).
The Court has reviewed these statutory sections; none supports
plaintiffs position. Briefly summarized, section 4701(b),
subsections (1) and (3), state the Acts purposes. Section
4711(a)(1) directs the Secretary to issue voluntary guidelines.
Subsection (b)(1) directs the Secretary to issue regulations to
prevent the introduction and spread of aquatic nuisance species
into the Great Lakes through the ballast water of vessels.
Subsection (b)(1)(2)(A) specifies ships to be regulated.
Subsection (e) provides for periodic review and revision of the
Secretarys guidelines and regulations. Finally, Subsection (f),
entitled Authority of Secretary, provides the regulations
promulgated by the Secretary . . . shall . . . provide for the
enforcement of the regulations. 16 U.S.C. 4711(f)(2)(A)(iii).
The plain language of these NISA sections imposes no
limitation on the Coast Guards discretion to enforce its ballast
water regulations. Nor does this language provide meaningful
substantive standards. At most, subsection (f) provides that
regulations contain an enforcement provision.6 But none of the
proffered subsections gives any direction - the law to apply - in
assessing whether the Coast Guard has appropriately enforced its
regulations. Plaintiffs cite no case, and this Court is aware of
none, where a court has construed NISA and held to the contrary.
The Court concludes NISA commits the enforcement of its
regulations to the discretion of the Coast Guard. Under the APA
and Chaney, the Court may not review the Coast Guards enforcement
of its regulations. Count II of the Complaint must therefore be
dismissed for lack of subject matter jurisdiction.
b. APHIS Federal Order and Interim Rule
Count III makes similar claims against APHIS, which is charged
with enforcing certain regulations promulgated under the Animal
Health Protection Act (AHPA), 7 U.S.C. 8301-8320. Like NISA,
the AHPA provides civil and criminal penalties for violations. 7
U.S.C. 8313. The AHPA authorizes the Secretary to gather
information and issue subpoenas as needed for enforcement. 7
U.S.C. 8314. But the AHPA contains no language limiting APHISs
enforcement discretion.
Here, plaintiffs challenge APHISs Federal Order of October
24, 2006. That Order was subsequently amended several times and,
on September 9, 2008, was superseded by an Interim Rule effective
November 10, 2008. 73 Fed. Reg. 52173-52189.
In its final incarnation before becoming an Interim Rule, the
Federal Order provided: All international and interstate movement
of VHS-susceptible species of live fish from affected or at-risk
Provinces or States that is not specified as permissible by this
Order is prohibited. Amended Federal Order on Viral Hemorrhagic
Septicemia (VHS), April 2, 2008, attached as Exhibit D to the
Declaration of Friedrich A. P. Siekert [Docket No. 17]. The states
and Canadian provinces bordering Lake Superior are defined as atrisk
areas. Id.
Plaintiffs read the Order to prohibit all movement of live
fish into Lake Superior, and assume all ballast water can be
presumed to contain live fish. APHIS, however, does not mandate
this interpretation. Indeed, the Interim Rule provides:
Ballast water . . . can be taken onto a ship in its port
of origin and discharged into the water body of the
ships destination port, making it a potential pathway
for VHS virus. APHIS has neither the regulatory
authority nor the technical expertise to safely regulate
ballast water discharge. Therefore, we do not address
ballast water in this interim rule. APHIS will assist
the U.S. Coast Guard, which has clear regulatory
authority for ballast water, in their development of
ballast water discharge standards.
73 Fed. Reg. 52175.
While plaintiffs may disagree with APHIS, there is no federal
statute which compels APHIS to adopt plaintiffs interpretation,
nor does the Court discern any limitation on APHISs discretion.
Therefore, the Court finds no law for this Court to apply in
assessing APHISs exercise of discretion.
Again, the APA and Heckler bar this Courts review. Count III
must be dismissed for lack of subject matter jurisdiction.
B. Standing
Defendants deny plaintiffs standing to pursue this action.
Standing has three elements. To survive a motion to dismiss,
plaintiffs must allege they (1) suffered an injury in fact which
is (2) fairly traceable to the challenged action of the
defendant, such that (3) the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). In considering whether plaintiffs have adequately
alleged standing, the Court accepts as true all material
allegations of the complaint. Warth v. Seldin, 422 U.S. 490, 501
These plaintiffs are associations. An association may assert
claims on behalf of its members if (1) the members would have
standing to sue in their own right; (2) the association seeks to
protect interests that are germane to its purpose; and (3) the
lawsuit makes claims and seeks relief which do not require the
participation of individual members. Hunt v. Washington State
Apple Advertising Commn, 432 U.S. 333, 343 (1977). The Court
considers whether individual members of the plaintiff associations
possess such standing.
An injury in fact is an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at
On this point, the complaint alleges:
Plaintiffs and their members regularly use and enjoy the
fish, wildlife, water, and other natural resources of the
waters of the United States, including but not limited to
the Lake Superior basin area, for a variety of
recreational, aesthetic, educational, and scientific
purposes, including, but not limited to, boating,
fishing, swimming, wildlife observation, interpretative
field trips, photography, nature study, and aesthetic
appreciation. Plaintiffs and their members intend to
continue to do all of the foregoing on an ongoing basis
in the future and thereby do and will continue to derive
recreational, aesthetic, scientific, educational,
conservational, and economic benefits from the natural
resources of these aquatic ecosystems.
(Compl. 13.) Three individual members have also submitted
affidavits, specifying the myriad ways they use and enjoy the
waters of Lake Superior. At least two individuals have personally
observed and attempted to remediate the presence of different
invasive aquatic species in Lake Superior.
While the Court cannot gainsay plaintiffs and the
individuals care and concern for Lake Superior, the Court
questions whether the particular concern underlying this complaint
is concrete and particularized, as opposed to conjectural and
hypothetical. Plaintiffs are not concerned about VHSV's presence
in Lake Superior and its fish population. They are concerned the
lake might become infected with the virus in the future. To date,
there is no evidence VHSV is in Lake Superior as opposed to the
other Great Lakes.
The complete absence of VHSV in Lake Superior is a very good
thing for the Lakes waters and its resident fish. Indeed, it is
a good thing for people who care for the Lake and its inhabitants -
but it is a bad thing for plaintiffs standing. Absent VHSV, there
is no actual harm. And absent actual harm, plaintiffs must allege
imminent harm. Lujan, 504 U.S. at 564. Fatal to their claim, they
7 See National Research Council, Great Lakes Shipping, Trade,
and Aquatic Invasive Species, Report Brief at 3, available at
index.html#Report (summarizing report by National Academy of
Sciences Committee on the St. Lawrence Seaway: Options to
Eliminate Introduction of Nonindigenous Species into the Great
Lakes, Phase 2).
have failed to do so.
Plaintiffs memorandum points to other invasive species which
have spread into Lake Superior. They note the presence of the
round goby, an invasive fish species susceptible to VHSV, now
present in Lake Superior. It appears most likely that ballast
water provided the mechanism of introduction. Plaintiffs cite
APHISs own acknowledgment of ballast water as a potential
pathway for VHSV. (Pl. Mem. at 4.) They argue there is every
reason to expect that VHSV will be transported through ballast
water into Lake Superior. (Id.) All of this may be true. But it
is not sufficient to allege an injury in fact.
In essence, plaintiffs claim defendants enforcement actions
are inadequate to keep live fish - and therefore, VHSV - out of
ballast water dumped in Lake Superior. Yet everyone agrees there
is no VHSV in the Lake. This is even more remarkable, considering
a typical oceangoing vessel, traveling inbound through the Great
Lakes, takes on ballast water in the lower Great Lakes and
discharges it into Lake Superior when loading cargo at Duluth-
The Court is constrained to speculate that the Lakes success
in remaining uninfected may be a matter of pure chance; it might be
because of an unknown antiviral component in its waters; it is even
conceivable its success can be attributed to the very failure to
act of which plaintiffs complain. Plaintiffs complaint alleges
absolutely no facts touching this not-at-all trivial question.
Absent any such allegation, plaintiffs ask the Court to invoke
its powers based on the pure conjecture that their theories might,
perhaps, be accurate. This is a slender reed, indeed. At this
stage, the Court concludes, the dire prospect posed by plaintiffs -
positing that defendants failure to follow plaintiffs suggested
regimen will ultimately foster the spread of VHSV into Lake
Superior - is purely conjectural and hypothetical. There is no
injury in fact, and it is possible none will occur. The individual
members do not have standing, therefore neither do the plaintiff
associations who bring this suit on their behalf.
III. Conclusion
For the foregoing reasons, defendants motion to dismiss
[Docket No. 12] is granted. Plaintiffs complaint is hereby
dismissed for lack of subject matter jurisdiction and lack of
Dated: March 12, 2009
s/ James M. Rosenbaum
United States District Judge


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