ALLIANCE FOR THE WILD ROCKIES v. SALAZAR Nos. 11-35661, 11-35670.
672 F.3d 1170 (2012)
ALLIANCE FOR THE WILD ROCKIES; Friends of the Clearwater; Wildearth Guardians, Plaintiffs-Appellants, and Center for Biological Diversity; Cascadia Wildlands, Plaintiffs, v. Ken SALAZAR, in his official capacity as United States Secretary of the Interior; Rowan Gould, in his official capacity as Acting Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service, Defendants-Appellees, and Idaho Farm Bureau Federation; Montana Farm Bureau Federation; Mountain States Legal Foundation; National Rifle Association of America; Safari Club International; Wildlife Conservation Groups, Intervenors. Center For Biological Diversity; Cascadia Wildlands; Western Watersheds Project, Plaintiffs-Appellants, and Alliance for the Wild Rockies; Friends of the Clearwater; Wildearth Guardians, Plaintiffs, v. Ken Salazar, in his official capacity as United States Secretary of the Interior; Rowan Gould, in his official capacity as Acting Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service, Defendants-Appellees, and Idaho Farm Bureau Federation; Montana Farm Bureau Federation; Mountain States Legal Foundation; National Rifle Association of America; Safari Club International; Wildlife Conservation Groups, Intervenors.
United States Court of Appeals, Ninth Circuit.
Filed March 14, 2012.
James J. Tutchton, Centennial, CO, and Amy Rae Atwood, Portland, OR, for the plaintiffs-appellants Alliance for the Wild Rockies, et al.
David C. Shilton, Department of Justice, Washington, D.C., for the defendants-appellees Ken Salazar, Secretary of the Interior, et al.
Steven J. Lechner, Lakewood, CO, for intervenors-appellees Safari Club International, et al.
Before: MARY M. SCHROEDER, STEPHEN REINHARDT, and MARY H. MURGUIA, Circuit Judges.
SCHROEDER, Circuit Judge:
Plaintiff environmental groups seek to enjoin the implementation of a statute, Section 1713 of the 2011 Appropriations Act, that orders the Secretary of the Interior to remove a portion of a distinct population of gray wolves from the protections of the Endangered Species Act ("ESA") without regard to any statute or regulation that might otherwise apply. Section 1713 effectively undid an earlier district court decision that found that such an action by the government, a "partial delisting," would violate the ESA. Plaintiffs brought this action contending that Section 1713 violates the separation of powers. The district court rejected plaintiffs' claims on the ground that Congress had acted within its constitutional authority to change the laws applicable to pending litigation. Because this case is controlled by Robertson v. Seattle Audubon Society,
Over the last decade, the United States Fish and Wildlife Service ("FWS") has repeatedly attempted to remove all or parts of the distinct population of gray wolves in the northern Rocky Mountains from the protections of the ESA. These efforts have been struck down by the courts for violating the ESA. See, e.g., Defenders of Wildlife v. Sec'y, U.S. Dep't of Interior,
Meanwhile, proponents of the 2009 Rule began exploring ways to delist the gray wolves through legislation. These efforts culminated in Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011, which the President signed into law on April 15, 2011. Pub. L. 112-10, 125 Stat. 38 (2011). Section 1713 orders the Secretary of the Interior to reissue the 2009 Rule without regard to the ESA and without judicial review. Section 1713 provides in its entirety:
On May 5, 2011, FWS complied with Section 1713 by reissuing the 2009 Rule. 50 C.F.R. Part 17, 76 Fed. Reg. 25,590. That same day, plaintiffs filed this suit challenging the constitutionality of Section 1713 under the separation of powers doctrine, and relying on United States v. Klein, 13 Wall. 128,
The cornerstones of plaintiffs' separation of powers challenge were laid in the mid-19th century when the Supreme Court decided United States v. Klein, 13 Wall. 128,
In Klein, the Supreme Court struck down an act of Congress that dictated the result in pending litigation. The plaintiff in Klein sued the government for the proceeds of property sold during the Civil War. The suit was filed under a statute granting such a cause of action to noncombatant confederate landowners who could show proof of loyalty to the federal government. The Supreme Court, in an earlier case, had decided that receipt of a Presidential pardon was sufficient proof of "loyalty" under this law. The Court of Claims in Klein followed that decision and awarded recovery. While the government's appeal was pending, Congress passed a statute providing that no pardon could be admitted as proof of loyalty to the federal government and that acceptance of a pardon, under most circumstances, was conclusive evidence of disloyalty. The statute thus directed the Supreme Court and the Court of Claims to find that a claimant who had accepted a Presidential pardon was in fact disloyal and, therefore, not entitled to land sale proceeds. The newly enacted statute further directed the Supreme Court to dismiss any case, for want of jurisdiction, if the claimant had
In striking down the statute, the Supreme Court in Klein explained that the effect of the new law was to deny jurisdiction to the Supreme Court and Court of Claims in pending cases "solely on the application of a rule of decision, in causes pending, prescribed by Congress." Id. at 146. This, the Court held, Congress could not do: "It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power." Id. Because Congress had "prescribe[d] a rule for the decision of a cause in a particular way," Congress "passed the limit which separates the legislative from the judicial power," and the provision was declared unconstitutional. Id. at 146-47.
The Court in Klein had to distinguish Wheeling Bridge. There, the Court had originally held that a bridge was an obstruction to navigation. 59 U.S. at 429. Intervening legislation, however, made the bridge a post-road for passage of the United States mail and forbade users of the river from interfering with the bridge. The Court concluded in Wheeling Bridge that this new statute had changed the earlier law that the bridge was obstructing navigation. "[A]lthough [the bridge] still may be an obstruction in fact,[it] is not so in the contemplation of law." Id. at 430. The Court in Klein held Wheeling Bridge differed from Klein in a critically important aspect: Congress had changed the law, not told the Court that it should decide the case differently under the same law. "No arbitrary rule of decision was prescribed in [Wheeling Bridge], but the court was left to apply its ordinary rules to the new circumstances created by the act. In [Klein] no new circumstances have been created by legislation." Klein, 80 U.S. at 146-47.
Klein, however, has remained an isolated Supreme Court application of the separation of powers doctrine to strike down a statute that dictated the result in pending litigation. This court relied on Klein in Seattle Audubon Society v. Robertson,
Our court held that section 318 violated the rule in Klein in that it directed the court "to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court." 914 F.2d at 1316. We noted that, although subsections (b)(2), (b)(3), and (b)(5) added additional requirements, the statute did not by its plain language repeal or amend the environmental laws underlying the litigation. Id.
The Supreme Court, however, told us the error of our ways. Robertson,
Here, as in Robertson, Congress has directed an agency to take particular action challenged in pending litigation by changing the law applicable to that case. In Robertson, Congress replaced the environmental laws applicable to the spotted owl litigation with new provisions and effectively directed the agency to comply with the new provisions. Here, Congress has directed the agency to issue the rule "without regard to any other provision of statute or regulation that applies to issuance of such rule." This court has held that, when Congress so directs an agency action, with similar language, Congress has amended the law. Consejo de Desarollo Economico, Mexicali v. United States,
Appellants' arguments that Section 1713 is a repeal rather than an amendment must fail for a similar reason. Congress
Appellants also contend that the meaning and effect of the 2009 Rule as reissued under Section 1713 are unclear, and that ambiguity prevents the court from finding an amendment. We cannot agree. The meaning and intended effect of Section 1713 are perfectly clear. The partial delisting was to take effect within 60 days, with no court review or interference.
Section 1713's bar to judicial review does not remove it from the broad safe harbor recognized in Robertson. The bar has the same purpose and effect as the statutory language in Consejo that directed agency action "without delay" and "notwithstanding any other provision of law." See 482 F.3d at 1168-69. As we stated in Consejo, particular language "is not dispositive." Id. There are no "magic words" that can sweep aside constitutional concerns. See id. Here, as in Consejo, however, it is clear that Congress intended to amend the law so as to avoid the usual course of administrative proceedings that include judicial review; otherwise, "it would have been unnecessary for Congress to act at all." Id. at 1169. The D.C. Circuit has reached the same conclusion when dealing with a statute that also stated, expressly, that an agency action "shall not be subject to judicial review." Nat'l Coal. to Save Our Mall v. Norton,
Section 1713 could be read to bar judicial review of even its own constitutionality. Such a construction would, of course, raise serious questions concerning the constitutionality of Section 1713. See Webster v. Doe,
Finally, we observe that while Section 1713 bars judicial review of the reissuance of the 2009 Rule, the 2009 Rule does provide standards by which the agency is to evaluate the continuing viability of wolves in Montana and Idaho. See, e.g., 74 Fed. Reg. 15,123 at 15,186. Review of any regulations issued pursuant to the Rule or of agency compliance with the standards, does not appear to be restricted. Section 1713 itself, however, ordering the Rule to issue without regard to the laws that might otherwise apply, is entitled to be enforced.
For the reasons given above, the decision of the district court is
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