Opinion
Case No. 2:23-cr-00012-NJK
2023-02-16
UNITED STATES of America, Plaintiff, v. Deval HATCHER, Defendant.
Nadia Janjua Ahmed, United States Attorney's Office, Las Vegas, NV, for Plaintiff. Benjamin F. Nemec, Federal Public Defender, Las Vegas, NV, for Defendant.
Nadia Janjua Ahmed, United States Attorney's Office, Las Vegas, NV, for Plaintiff. Benjamin F. Nemec, Federal Public Defender, Las Vegas, NV, for Defendant.
Order
[Docket No. 12] Nancy J. Koppe, United States Magistrate Judge
Pending before the Court is Defendant's motion to dismiss for violation of nondelegation doctrine. Docket No. 12. The United States filed a response, Docket No. 8, and Defendant filed a reply, Docket No. 14. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons more fully discussed below, Defendant's motion is DENIED.
I. BACKGROUND
Defendant is charged with operating a vehicle in excess of the posted speed limit in Red Rock National Conservation Area on September 2, 2022, all in violation of 43 C.F.R. § 83651.1-3(a)., Docket No. 1 at 1. 43 C.F.R. § 83651.1-3(a) was promulgated by the Secretary of the Interior pursuant to authority delegated to her under 43 U.S.C. § 1733(a).
Defendant was originally charged with resisting issuance of a citation in violation of 43 C.F.R. § 8365.1-4(a)(4) and exceeding posted speed in violation of 43 C.F.R. § 83651.1-3(a). Docket No. 7 at 2. The United States dismissed the charge of resisting issuance of a citation. See Docket No. 4-1. The criminal information in this case only charges Defendant with violating 43 C.F.R. § 83651.1-3(a). See Docket No. 1.
43 C.F.R. § 83651.1-3(a) provides that "[w]hen operating a vehicle on the public lands, no person shall exceed posted speed limits, willfully endanger persons or property, or act in a reckless, careless or negligent manner."
43 U.S.C. § 1733 provides, in part, that "[t]he Secretary shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands, including the property located thereon. Any person who knowingly and willfully violates any such regulation which is lawfully issued pursuant to this Act shall be fined no more than $1,000 or imprisoned no more than twelve months, or both."
Defendant submits that the citation against him should be dismissed because only Congress can make acts criminal. Docket No. 12 at 2. Defendant further submits the regulation under which he is charged was "promulgated by the executive branch instead of the legislative branch pursuant to an unlawfully broad and limitless delegation of power," and is therefore unconstitutional. Id. The United States responds that "the delegation of authority by Congress to the Secretary of the Interior pursuant to 43 U.S.C. § 1733 does not run afoul of the non-delegation doctrine." Docket No. 8 at 3.
II. STANDARDS
The Constitution of the United States vests the power to legislate in Congress. U.S. Const. art. 1, § 1. Under this constitutional structure, "Congress generally cannot delegate its legislative power to another Branch." Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). This restriction is commonly known as the nondelegation doctrine. "Under modern precedent, this is an exceedingly modest limitation." United States v. Melgar-Diaz, 2 F.4th 1263, 1266 (9th Cir. 2021). Supreme Court precedent recognizes that "the Constitution does not deny to the Congress the necessary resources of flexibility and practicality" such that "Congress may obtain the assistance of its coordinate Branches - and in particular, may confer substantial discretion on executive agencies to implement and enforce the laws." Gundy v. United States, — U.S. —, 139 S. Ct. 2116, 2123, 204 L.Ed.2d 522 (2019) (internal quotations and citations omitted). "So long as Congress lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform, such legislative action is not a forbidden delegation of power." Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)). "This means that a delegation is permissible if Congress has made clear to the delegee the 'general policy' he must pursue and the 'boundaries of his authority.' " Melgar-Diaz, 2 F.4th at 1267 (quoting Gundy, 139 S. Ct. at 2129). Determining whether Congress provided an intelligible principle "requires construing the challenged statute to figure out what task it delegates and what instructions it provides." Gundy, 139 S. Ct. at 2123 (citing Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 473, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)).
III. DISCUSSION
Defendant submits that 43 U.S.C. § 1733(a) lacks an intelligible principle to guide the Secretary in promulgating regulations. Docket No. 12 at 2-3. The United States cites United States v. Kittel, 2021 WL 3823185 (D. Or. 2021), for the proposition that courts in the Ninth Circuit have found a statute similar to 43 U.S.C. § 1733(a) to contain an intelligible principle, Docket No. 8 at 5. The Kittel court reached its conclusion by adopting the reasoning in United States v. Cassiagnol, 420 F.2d 868, 876-77 (4th Cir. 1970). Kittel, 2021 WL 3823185 at *4-*5. The United States also adopts the reasoning of Cassiagnol in its brief. Docket No. 8 at 5-6.
Defendant also submits that 43 U.S.C. § 1733(a) violates the principle that "only the people's elected representatives in Congress have the power to write new federal criminal laws." Docket No. 12 at 3-4. (quoting Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1059-60 (9th Cir. 2020)). Valenzuela Gallardo addressed whether the Board of Immigration Appeals' interpretation of a statute is entitled to Chevron deference and how Chevron deference interacts with other aspects of criminal law. Valenzuela Gallardo, 968 F.3d at 1059. Defendant briefly discusses Valenzuela Gallardo before concluding that "[i]f the Ninth Circuit has concerns over the executive branch providing interpretations of a statute, than the executive branch creating criminal statutes can only increase the constitutional problems present here." Docket No. 12 at 3-4. The United States did not respond to this portion of Defendant's brief. See generally Docket No. 8.
The Supreme Court has examined whether a statute making violation of regulations a criminal offense violates the separation of powers. See United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911). More recently, the Supreme Court seemingly assumed that Congress could properly authorize the Executive Branch to promulgate regulations that contemplate criminal sanctions. Cf. Touby, 500 U.S. at 165-66, 111 S.Ct. 1752 (declining to address whether "regulations that contemplate criminal sanctions" promulgated under a statutory delegation of authority require "more specific guidance" than an intelligible principle because the challenged statute "passe[d] muster even if greater congressional specificity is required in the criminal context"). Defendant does briefly analyze how Grimaud would affect the separation of powers question. His analysis, however, consists primarily of the conclusory statement that "[United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019)] would abrogate any prior ruling holding the legislature does not have a monopoly over making acts criminal, including Grimaud." Docket No. 14 at 5. Davis addressed whether the residual clause of a congressionally drafted criminal statute was unconstitutionally vague. Davis, 139 S.Ct. at 2323-24. Defendant at no point clarifies how cases focusing on Chevron deference and constitutional vagueness inform whether a statute violates the separation of powers. The Court need not address undeveloped arguments. See, e.g., Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013).
Cassiagnol involved antiwar protestors at the Pentagon challenging their convictions for violating various General Service Administration ("GSA") regulations promulgated under 40 U.S.C. § 318. 420 F.2d at 875-76. The Cassiagnol defendants "allege[d] that the broad grant of authority to GSA exceeds the permissible right of Congress to delegate its own authority." Cassiagnol, 420 F.2d at 876. The Cassiagnol court found that the statute limited GSA's authority to "establish regulations only as to government property under its charge and control." Id. Similarly, the Cassiagnol court noted that the general policy GSA was to pursue was to promulgate " 'needful rules and regulations' to maintain and protect such property and ensure its use for the authorized purpose." Id. (quoting 40 U.S.C. § 318a). It concluded that such a broad grant of authority was appropriate because of the "wide variety" of buildings under GSA control. Id. Accordingly, the Cassiagnol court found "40 U.S.C. § 318 to be a constitutional delegation of administrative authority to the Administrator of GSA." Id. at 877.
Defendant attacks the United States' reliance on Cassiagnol on several grounds. Defendant first submits that Cassiagnol lacks persuasive value because it fails to address the "Supreme Court's unequivocal[ ] declaration [that] 'only the people's elected representatives in the legislature are authorized to make an act a crime.' " Docket No. 14 at 5 (quoting Davis, 139 S. Ct. at 2325). This submission is a variant of Defendant's separation of powers argument discussed above. The Court declines to address this argument for the reasons previously stated.
Defendant further submits that Cassiagnol is of little persuasive value because "it did not have an opportunity to consider the more recent denouncements and abrogations of the nondelegation clause." Docket No. 14 at 5. Defendant is correct that Cassiagnol predates much of the Supreme Court's nondelegation jurisprudence. The Fourth Circuit, however, has recently found Cassiagnol's reasoning decisive in a nondelegation challenge.
In United States v. Moriello, 980 F.3d 924 (4th Cir. 2020), the Fourth Circuit considered whether 40 U.S.C. § 1315, the modern successor to the statute at issue in Cassiagnol, violated the nondelegation doctrine. Moriello reaffirmed Cassiagnol's conclusion that "it is reasonable and constitutional to delegate to the agency charged with maintenance and protection of government property the right to fix minimum acceptable conduct thereon." Moriello, 980 F.3d at 932 (quoting Cassiagnol, 420 F.2d at 876-77). Indeed, the Moriello court concluded that 40 U.S.C. § 1315 provided a narrower delegation of authority than 40 U.S.C. § 318a. Id. at 933. This is because the former "delegated the authority to 'make all needful rules and regulations for government of the property' " under GSA control whereas the latter "specifies that the rules must be 'for the protection and administration of property owned or occupied by the Federal Government.' " Id. (quoting 40 U.S.C. §§ 318a (2002), 1315(c)) (emphasis added). Cassiagnol, therefore, is still persuasive law.
40 U.S.C. § 1315(c)(1) states that "[t]he Secretary [of Homeland Security], in consultation with the Administrator of General Services, may prescribe regulations necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property."
Defendant further submits that Cassiagnol's reasoning regarding the limitation of delegated authority fails when applied to the Bureau of Land Management ("BLM") because it manages significantly more property than the GSA. Docket No. 14 at 5-6. Defendant fails to explain, however, how the government's interest in administering its property is substantively changed by the amount of property at issue. Indeed, given that the BLM manages such a wide variety of property relative to the GSA, the logic of Cassiagnol suggests that Congress could delegate even more discretion to the BLM than to the GSA. Cf. Cassiagnol, 420 F.2d at 876.
Defendant's final submission as to why Cassiagnol and Kittel are unpersuasive is, at bottom, an argument that the relevant statutes lacked an intelligible principle. See Docket No. 14 at 6-7. Compare id. with Docket No. 12 at 7. The Court declines to re-adjudicate those cases here.
The Court finds the reasoning from Cassiagnol and Moriello persuasive. 43 U.S.C. § 1733(a) directs that "[t]he Secretary [of the Interior] shall issue regulations necessary to implement the provisions of this Act with respect to the management, use, and protection of the public lands, including the property located thereon." Much like the statute at issue in Moriello, § 1733(a) requires regulations be for "the management, use, and protection of the public lands." The Secretary's regulatory authority is further narrowed by Congressional declarations regarding the promulgation of regulations and the policy and management objectives those regulations should pursue. See 43 U.S.C. §§ 1701(5), (8), (12). Additionally, § 1733(a) limits the Secretary's authority to the statutorily defined "public lands." See 43 U.S.C. § 1702(e). Considering the reasoning in Cassiagnol and Moriello, and because "Congress has made clear to the delegee the 'general policy' [s]he must pursue and the 'boundaries of [her] authority," Melgar-Diaz, 2 F.4th at 1267 (internal citation omitted), the Court finds that 43 U.S.C. § 1733(a) is not an unconstitutional delegation of legislative power.
43 U.S.C. § 1701(5) states that, "in administering public land statutes and exercising discretionary authority granted by them, the Secretary be required to establish comprehensive rules and regulations after considering the views of the general public; and to structure adjudication procedures to assure adequate third party participation, objective administrative review of initial decisions, and expeditious decisionmaking."
43 U.S.C. § 1701(8) directs that
"the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use."
43 U.S.C. § 1701(12) requires that "the public lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970 . . . as it pertains to the public lands."
"The term 'public lands' means any land and interest in land owned by the United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the United States acquired ownership, except (1) lands located on the Outer Continental Shelf; and (2) lands held for the benefit of Indians, Aleuts, and Eskimos." 43 U.S.C. § 1702(e).
IV. CONCLUSION
For the reasons more fully discussed above, Defendant's motion to dismiss for violation of nondelegation doctrine is DENIED in part and DENIED without prejudice in part. Docket No. 12. Defendant's nondelegation challenge is DENIED. Defendant's separation of powers challenge is DENIED without prejudice. Any renewed motion raising a separation of powers argument must be submitted no later than February 23, 2023.
IT IS SO ORDERED.