Back in January 2008, I wrote about the efforts of forty-seven U.S. Senators to remedy a horrific injustice by urging the Secretary of the Interior to amend a couple of Reagan-era administrative regulations to protect the God-given right of all Americans to pack loaded, concealed weapons on lands under control of the National Park Service and the Fish and Wildlife Service.
Proving yet again that no idea was too stupid for the Bush administration to entertain, the Department of the Interior (“DOI”) swallowed the whole mess hook, line and sinker. The Department amended the existing rules to allow people to carry concealed, loaded, operable firearms in national parks and wildlife preserves so long as it’s legal in the state in which the park or preserve is located. See 73 Fed. Reg. 74,966, 74,972 (Dec. 10, 2008). The final rule took effect on January 9, 2009.
On March 19, 2009, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia granted a preliminary injunction against enforcement of the new regulation. The injunction was issued in connection with two consolidated lawsuits, one filed by the Brady Campaign to Prevent Gun Violence and the other by the National Parks Conversation Association, the Coalition of National Park Service Retirees and the Association of National Park Rangers.
The outrage over the ruling is damn near palpable, a fact due in no small part to the fact that the National Rifle Association sought and received permission to intervene in both lawsuits as a defendant. The NRA has appealed the preliminary injunction ruling.
One needn’t look around the internet very far or hard to find some winger talking about how the preliminary injunction was wrong because Jesus gave us the right to have guns in the Second Amendment, as the Supreme Court itself recently recognized in District of Columbia v. Heller, 554 U.S. ___ (2008). Going back to the old regs, which were born on the watch of former Interior Secretary and starry-eyed liberal hippie environmentalist freak James Watt, would deprive us of our most sacred and holy freedoms. So yes, as with most “conservative” “argument,” the basic thrust here is OMFG T3H FREADUM!!1!
Trouble is, these case have precisely jack shit to do with gun rights in general or the Second Amendment in particular. The validity of the amended rule boils down to the comparatively mundane question of whether DOI complied with applicable provisions of the National Environmental Protection Act (“NEPA”) in promulgating the new rule.
Generally, NEPA requires federal agencies to conduct a detailed environmental analysis (called an Environmental Impact Statement) of proposed agency action. An EIS isn’t necessary if the agency conducts an Environmental Assessment (“EA”) and issues a “finding of no significant impact” presenting the reasons why the proposed action won’t have a significant impact on the human environment.
The Interior Department didn’t do any of that shit before promulgating the amended rules. It decided instead that its actions in amending the rule were subject to a statutory “categorical exclusion” from the EIS/EA requirement. Why? Four reasons: (1) the amendment was “strictly legal” in nature; (2) the amended rule won’t have any environmental effects because it doesn’t authorize any such effects; (3) people were allowed to carry concealed weapons on other federally owned lands with no indication of any increase in poaching, illegal firearms use or danger to the public; and (4) the amended rule maintains existing reastrictions on actual firearm use.
The court’s opinion and order granting the preliminary injunction (pdf, 44 pages) is available here. Getting a preliminary injunction against enforcement of a law is no easy job. The plaintiff has to prove:
(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.
The judge found that the plaintiffs cleared those imposing hurdles easily. As to substantial likelihood of success on the merits, the court found that “DOI’s Decision Memorandum reflects a significant misunderstanding of the obligations imposed by NEPA.” The statute required the agency to take a “hard look” at potential environmental impacts before implementing a new rule. DOI obviously didn’t do that here. The issue isn’t merely whether the amended rule authorizes environmental impacts but rather what environmental effects were foreseeable as a result of the rule.
DOI not only used the wrong legal standard but totally ignored its own long-standing view that the prior regulations prohibiting concealed weapons were “necessary to ensure public safety and provide maximum protection of natural resources by limiting the opportunity for unauthorized use of weapons.” The agency is free to amend its views, of course, but NEPA requires some explanation as to why the rationale underlying the prior rule no longer applies.
If that weren’t enough, DOI’s bare conclusion that the new regulation would have no environmental impact because the concealed weapons would likely never be used on federal land was belied by statements of numerous supporters of the amended rule submitted during the public comment period. Those supporters argued that the amendment was needed so that people can use concealed firearms for self-defense while on federal land. Oops.
NEPA doesn’t provide a direct right of action against administrative agencies, but NEPA’s requirements are enforceable through 5 U.S.C. § 706(2)(A), part of the federal Administrative Procedures Act, which provides that a court may set aside administrative agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” The court had no trouble finding a “substantial likelihood” of the plaintiffs proving that DOI’s actions were arbitrary and capricious with regard to NEPA requirements.
At this point, the lawsuits will proceed along the normal lines. Unless and until the preliminary injunction ruling is reversed on appeal, visitors to National Park Service and Fish and Wildlife Service lands are subject to the old regulations prohibiting concealed, functioning firearms. Despite the title of this blog entry, the republic remains intact despite Judge Kotelly’s commie ruling.
