Alliance for the Wild Rockies v. Salazar
672 F.3d 1170
9th Cir.2012Background
- Section 1713 of the 2011 Appropriations Act directs the Secretary to reissue the 2009 rule removing ESA protections for part of the northern Rocky Mountains gray wolf population.
- Section 1713 requires reissuance without regard to any statute or regulation that would otherwise apply and forbids judicial review of the reissuance.
- FWS reissued the rule on May 5, 2011, effective within 60 days, triggering this lawsuit challenging constitutionality under separation of powers.
- District court later denied relief; plaintiffs appeal, arguing Section 1713 violates the nondelegation/separation of powers doctrine.
- This court reviews de novo and concludes that Section 1713 amends the law applicable to the pending litigation, not merely repealing it.
- The court affirms the district court and holds that Section 1713 amends the law affecting the case, not invalidating judicial review categorically.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Section 1713 violate separation of powers? | Klein/Robertson apply; Congress cannot dictate outcomes in pending litigation. | Section 1713 amends the law governing the case, not dictating judicial outcomes; permissible. | No; Section 1713 amends the law governing the case. |
| Does Section 1713 repeal or amend ESA for the pending litigation? | It repeals or negates ESA protections by directing outcome outside statutory limits. | It amends the applicable law to the agency action, consistent with Robertson/Consejo. | It amends the law applicable to the action, not a repeal of ESA. |
| Is the 1713 bar on judicial review constitutionally permissible? | Bar to review violates Article III and separation of powers. | Bar is an authorized legislative modification that changes applicable law; review is not required. | Bar is permissible as a Congressional change to the applicable law. |
| Does Section 1713 foreclose review of the reissuance itself or only review of other regulations? | Reissuance is constitutionally reviewable; still subject to standards under the rule. | Section 1713 bars review of the reissuance; ongoing standards remain reviewable. | Section 1713 bars review of the reissuance itself. |
Key Cases Cited
- Robertson v. Seattle Audubon Society, 503 U.S. 429 (Supreme Court 1992) (amendment of environmental law governing pending litigation allowed under certain conditions)
- United States v. Klein, 80 U.S. 128 (Supreme Court 1872) (cannot dictate the result in pending litigation)
- Consejo de Desarollo Economico, Mexicali v. United States, 482 F.3d 1157 (9th Cir. 2007) (Congressional directive that exempts a project from other laws constitutes amendment)
- Stop H-3 Ass'n v. Dole, 870 F.2d 1419 (9th Cir. 1989) (precedent for legislative direction affecting preconditions to project commencement)
- Robertson v. Seattle Audubon Society, 914 F.2d 1311, 914 F.2d 1311 (9th Cir. 1990) (earlier panel recognition of amendment-style statutory changes to pending litigation)
- National Coalition to Save Our Mall v. Norton, 269 F.3d 1092 (D.C. Cir. 2001) (preclusion of judicial review indicates congressional intent to change the law)